Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL And Rare Earths & Minerals Pty Ltd/Northern Territory

[2002] NNTTA 158

NATIONAL NATIVE TITLE TRIBUNAL

Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL And Rare Earths & Minerals Pty Ltd/Northern Territory, [2002] NNTTA 158 (5 August 2002) 

APPLICATION NO:          DO01/47

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Anges Limmerick on behalf of the Wakaya People (Native Title Party)

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Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd (Grantee Party)

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Northern Territory of Australia (Government Party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Prof. Douglas Williamson QC
Place:  Melbourne
Date:  5 August 2002

Catchwords:               Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to have any of the consequences specified in s 237 of the Native Title Act1993 (Cth) – evidence does not support objection – determination that the grant of exploration licence is an act attracting the expedited procedure.

Legislation:                 Native Title Act 1993 (Cth) ss 29, 32, 237

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3

Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 3, 33, 34, 35, 36

Mining Act 1980 (NT) ss 24, 24A, 166

Mining Amendment Act 2001 (NT) s 14

Mining Management Act 2001 (NT) ss 35, 36, 37

Cases:  Smith v Western Australia (2001) 108 FCR 442

Dann v Western Australia (1997) 74 FCR 391

Cheinmora v Striker Resources NL (1996) 142 ALR 21

Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, Member Sosso, 1 February 2002

Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, Deputy President Franklyn QC, 27 March 2002

Don Rory and Jack Hogan/Northern Territory/Astro Mining NL, NNTT DO01/110 and DO01/111, Deputy President Franklyn QC, 10 May 2002

Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, Member Williamson QC, 15 July 2002

Arthur Que Noy and Others/Robert Michael Biddlecombe/Northern Territory, NNTT DO01/114, Member Sosso, 19 July 2002

Hearing date:  21 November 2001

Government Party:     Mr Daniel Lavery, Solicitor for the Northern Territory.

Native Title Party:     Mr Angus Frith of Counsel, instructed by Mr Mark Rumler, Solicitor for the Northern Land Council.

Grantee Party:           Mr Jeffrey Wilkie, Rio Tinto Exploration Pty Ltd

REASONS FOR DETERMINATION

Background

1. On 7 February 2001 the Northern Territory (‘the government party’) issued a notice pursuant to section 29 of the Native Title Act 1993 (Cth) (‘the Act’) that it proposed to grant exploration licence 9978 (‘the proposed tenement’) to Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd (‘the grantee party’) and included a statement in accordance with section 32(1) that it considered that the act attracted the expedited procedure as defined in s 237 of the Act.

2. The proposed tenement is 81 blocks (approximately 218 square kilometres) covering parts of Perpetual Pastoral Lease (‘PPL’) PPL 914, known as ‘West Ranken’ and PPL 988, known as ‘Dalmore Downs’ (‘the licence area’).  It is an irregular shape:  the longest distance north-south is about 12 kilometres, and the longest distance between the western and eastern boundaries is about 34 kilometres.

3. On 8 May 2001 a native title determination application (DC01/30, D6030/01) was filed with the Federal Court of Australia (‘the Dalmore Downs application’).  The applicant is shown as Anges Limmerick (sic) on behalf of the native title claim group comprised of the Wakaya People (‘the native title claim group’).  Subsequent affidavit material indicates that the correct name of the applicant is Angus Limerick, which name will be used hereafter.  The application was accepted for registration and entered on the Register of Native Title Claims on 7 June 2001.  The Dalmore Downs application remains on the Register, and wholly covers the licence area.

4. An application (Form 4) objecting to inclusion of the proposed grant in an expedited procedure was lodged within the statutory time period, pursuant to section 32(3). The objector is the said Anges (Angus) Limmerick (Limerick) on behalf of the native title claim group.

5. There was no application by any party that this matter required an ‘on country’ hearing, and no party requested the Tribunal to hear oral evidence.  At a Listing Hearing held on 21 November 2001 parties agreed that the inquiry could be dealt with ‘on the papers’, including the further material filed with the Tribunal on 21 and 29 November, together with the Standard Exhibit and ‘generic’ material referred to below.  The Tribunal is required pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.  In this instance, having regard to the material before the Tribunal and the submissions by the parties, I formed the view that it was not necessary to hold a hearing, and directed that a determination be made on the documents.

Contentions

1. The following contentions were submitted to the Tribunal:

   (1)    Government party Statement of Contentions, 31 October 2001.

   (2)    Grantee party Statement of Contentions, 12 November 2001.

   (3)    Native title party Statement of Contentions of Objector, 7 November 2001.

   (4)    Government party Contentions in Reply, 21 November 2001.

   (5)    Native title party Objectors’ Reply to the Contentions of the Government Party, 21 November 2001.

Submission of evidence

1. The government party submitted the following evidence:

   (1)    Map marked with

   (i)the proposed licence area;

   (ii)the location of various underlying tenures of land, both within the proposed licence area and in its general locality; and

   (iii)the location of known Aboriginal communities.

   (2)    Mining tenement documents including

   (i)a copy of the Exploration Licence application, (with financial details in a sealed envelope marked ‘Financial Details-Confidential’, the confidential status of which was lifted by consent on 21 November 2001);

   (ii)a schedule of any current mining tenure covering the same area (nil);

   (iii)details of prior mining tenements granted over the same area, with dates of grant and expiry.

1. The native title party submitted the following evidence:

   (1)Affidavits affirmed by members of the native title claim group, Angus Limerick (26 October 2001) and Tony Willy (26 October 2001).

   (2)Extract from the Wakaya/Alyawarre Land Claim Report No 34, 27 January 1999, paragraphs 1.4 to part of 1.6; part of 4.26 to 4.27.

   (3)    Affidavits affirmed by expert witnesses Jeffrey John Wilson Stead (8 October 2001) and Mark Frederick Foy (6 November 2001).  Annexure ‘MFF1’ to Mr Foy’s affidavit is a 10 page document ‘Exploration Activities’ prepared by him.

   (4)    Documents prepared by Angus Frith ‘Rights conferred under an exploration licence’ (8 October 2001) and ‘Analysis of legislation dealing with significant areas and sites’ (7 November 2001).  These are in the nature of legal analysis and opinions concerning the relevant legislation.

   (5)    Letter dated 29 November 2001 from the Northern Land Council enclosing information provided by the Aboriginal Areas Protection Authority (‘AAPA’), comprising a map showing sites in the vicinity of the licence area registered or recorded in the Register of Sacred Sites as at 4 December 2001, together with a schedule containing the identifying reference number, description (name), brief geographical description, status and map co-ordinates of each site.  A direction was made on 21 November 2001 preserving the confidentiality of this information.

2. The grantee party did not submit affidavit evidence, but relied upon information attached to the application for the proposed tenement, and certain statements of intention set out in its Statement of Contentions.

3. With the consent of the parties, the following ‘generic’ material was received in evidence:

   (1)    Memorandum by Member Sosso, 16 November 2001 ‘Generic Issues To Be Dealt With’, provided to the parties in expedited procedure objection inquiries DO01/13 and DO01/19.

   (2)    Response by government party, 5 December 2001.

   (3)    Response by Northern Land Council, 6 December 2001 on behalf of the native title party.

   (4)    Transcripts of evidence given by Jeffrey John Stead, 3 December 2001, and Mark Frederick Foy, 4 December 2001, in expedited procedure objection inquiry DO01/11 before Member Stuckey-Clarke.

   (5)    The ‘Standard Exhibit’ submitted by the government party.

4. The ‘Standard Exhibit’ referred to in the preceding paragraph comprises a folder of ‘Particulars’ provided on 22 November 2001. The government party relies upon the contents of the Standard Exhibit in all expedited procedures objection inquiries in the Northern Territory. Copies of the exhibit are ‘on file’ with the Tribunal, the Northern Land Council, the Central Land Council, and are made available to proposed grantees. The exhibit is updated from time to time. In brief, the contents comprise extracts from legislation, standard conditions that are contained in every grant of an exploration licence, and brochures, booklets, guidelines and other information relevant to the conduct of mineral exploration in the Northern Territory.

The expedited procedure provisions

1. Subdivision P of Division 3 of Part 2 of the Act applies to certain future acts, including the conferral of specified mining rights, which by definition include exploration rights (section 253). Subdivision P establishes a regime for negotiation amongst prescribed parties, and if agreement is not reached, then a determination is to be made by an arbitral body. If the procedures of the subdivision are not complied with, the future act will be invalid to the extent that it affects native title.

2. Section 32 of the Act applies if the notice given under section 29 of intention to do the act (in this matter, to grant an exploration licence) includes a statement that the government party considers that the proposed act is an act attracting the expedited procedure as defined in section 237. If the proposed act is one that does attract the expedited procedure, then the negotiation or determination process provided by subdivision P is no longer applicable, and the proposed act may validly be done.

3. In the present matter the objectors have lodged an objection pursuant to section 32(3) against the inclusion of the statement. If the objection is upheld, then the further provisions of subdivision P remain applicable.

4. The key to the objection process and the present inquiry lies in the provisions of section 237. These provide as follows:

   A future act is an act attracting the expedited procedure if:

   (a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

Legal principles

1. The interpretation and application of the provisions of section 237, both before and since amendment in 1998, have been the subject of considerable attention both in determinations by the Tribunal and judgements of the Federal Court of Australia. This material has been canvassed in detail in the contentions by the government party and the native title party in the present matter, and in a number of similar objection inquiries in the Northern Territory during the past year. An extensive and helpful analysis of the relevant principles is set out in the Reasons For Determination given by Member Sosso in Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, 1 February 2002 (‘Moses Silver’).  No point is served by repeating that process here, because to the extent that the principles and observations set out in paragraphs [20] to [47], [86] to [107], and [135] to [140] of DO01/13 are relevant to the issues directly raised in the present matter, I respectfully agree with them and adopt them, subject to the comments about the appropriate approach to spiritual issues set out in paragraphs [18] to [21] of my Reasons for Determination in Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, 15 July 2002 (‘Billy Coolibah’).

Native title party evidence

1. The affidavit of Angus Limerick states:

   1.   My name is Angus Limerick.  My skin name is Jampitjinpa.  I was born at Illawurru, on Alexandria Station, in Wakaya, and I can speak some Wampaya.  I am a CDEP worker on Alexandria Station. My father was Limerick Jangala.  He came from Alexandria, he was Wakaya.  His dad was old Leo.  My farther died at Anthony Lagoon, and he is buried in Tennant Creek.  My mother was bobbin Balpin.  My father and my mother married tribal way.

   2.   I grew up at Alexandria and then my parents came to Tennant Creek.  My dad did some contracting work. I went to school in Tennant Creek.  I finished school at primary school. That was early in the 60’s.  I was initiated at Walhallow, but there was no station there then. After the stock work finished we had big walkabout camp there.  After I was initiated I went to Anthony Lagoon to work for about 3 or 4 years.  Then I went back to my old place at Alexandra and worked there.  I worked there for about 4 years. I also worked at Brunette Downs.  We never left the Tablelands.  We started fighting for our land at Alexandria and we moved there, to Illawurru.  We got an excision. I lived there for the last few years.  I am working there on CDEP.

   3.   I can see the ELA 9978 on the map and I know that country.  Purrukarra is country name.  Purrukwarra is on the Wakaya Land Trust.  I am related to that country thought my father and my father’s father.  I am Bukaru for that country.  Limerick my father, that was his country, and his father before him.  Tony Willy, Teddy Limerick and three brothers who passed away, we’re all Bukaru.  I am Bukaru behind Tony. Tony has no sons.  He only got me and my sons.  We are Bukaru for all that country.  For the eastern side, the Slater mob are Bukaru with them.  Cyclone Ward, Bill Riley and big mob, Mark Jangilu, are Kurdungurlu.

   4.   I learned about that country from my father.  When he passed away I learned from Tony Willy mob, and Paddy Woodman mob.  Paddy is Alyewarra.  He used to walk with my people.  He’s my father’s father’s brother.

   5.   I’ve been on that country, we bin walk around.  I can remember we were there in the 80’s.  We would go to Lorne Creek, east of the ELA 9978.  We would go camping, fishing.  We also camp at Barry Caves., Wurundula.  It’s not far from the ELA, along the highway to the east. Tony Willy has marked that place on the map.  We used to go hunting, get bush tucker, porcupine, goanna, and kangaroo.  We’d camp just south of Barry Caves, east of Wunara.

   6.   When I worked at Alexandra we also worked near that ELA area.  We’d come in from the station doing stock work and we’d camp there too.  We had ceremony at Soudan for that country, a long time ago, and at Lorne Creek we had ceremony there when I was young.  Near Barry Caves, Wunana is an important place.  It’s important country, ceremonial country out there.  That means it’s an important area, a little area, like a sacred site.  We’ve got to look after it.  If the mining company went in there, we’d get angry, and they might touch something.  Something might happen.  Might be Kurdungurly might get angry, I might get sick, for letting the miners go in there.  I am Bukaru, and also I am delegate to NLC so I have responsibilities for this region.  I am the proper man to speak for the country.

   7.   I’ve never seen what mining companies do.  I talked to a mining Company at Wunara last year.  I’m not sure, I think it was Rio Tinto.  I don’t think it’s the same one for the ELA, but they have another ELA here too.  CLC was there too.  The mining company made me worried about what they were going to do.  We were worried that miners would damage a site, they might put a road through and damage a sacred site.  I’m worried about sacred sites, damage to country, might leave a hole in that country.  People might get sick.  If they damage a site, the Bukaru might get sick.  They’re like part of that place, and we could get into trouble from Kurdungurlu.

   8.   We don’t want strangers out there without permission.  I’d be worried, upset if people went out there, my sons would be upset too.  They are Bukaru too.  We’d be a bit crooked if the mining company goes ahead and does something before talking to us.  If the Bukaru aren’t too sure the Bukaru can go with them.  People got to ask us for permission.  They got to ask the Bukaru first.

1. The affidavit of Tony Willy states:

   I, Tony Willy of Wuppa Camp, Tennant Creek in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:

   1.My name is Tony Willy.  My skin is Jangala.  I was born at Alroy Downs, at Gulunngurru, in Wakaya country .  I am Wakaya.  I am getting the disability pension because I have diabetes and cannot work.  I am 52 years of age.  My parents were working at Alroy when I was born there in 1949.

   2.I got a house on the Wakaya Land Trust but I haven’t been there a while because I’ve got no vehicle and my sister, brother and nephew died there.  I might start up a new place somewhere out there.

   3.I’ve seen the map with the ELA 9978 on it, and I understand where it is, all that Wakaya country.  Where that ELA is, that’s pastoral lease but it is still Wakaya country.

   4.I am boss for that country, Bukaru in Wakara language.  I am bukaru from my father and my grandfather.  Old Left Hand Leo and Avon Willy were proper businessmen, every year they had business.  I got the business now for that country.

   5.I got initiated in 1964, at Brunette Downs.  We had more business in 1966 at Lorne Creek, just near the ELA.  Old Paddy Woodman, Cecil Teague, Tom Beasley, Albert Morton, Sandy Morton, Dan Wakaya – he’s still alive – the others all passed away, they taught me about that country, that land from my father.

   6.My main place is Burrumundu at Dalmore, a big round soakage.  Burrumundu is the main place for that Purrukwarr block.  Purrukwarra is country name, it goes over the ELA.  Burrumundu is not on the ELA.  That goanna left its eggs at Burrumumdu.  It used to have water, Burrumundu, but now you have to dig.  Yellow goanna and rain, those dreamings come to Burrumundu.  The rain came across from Lorne Creek then to Burrumundu, then to Brunette.  Yellow goanna, he was camping at Gulirra, right near Barkly Homestead, west of the ELA.  Our business starts at Julinja, near the microwave tower, outside the ELA, to the west, where I have marked it with a cross on the map.  At Julinja, the black snake with the stumpy tail stopped.  Bubina is the Wakaya name for the snake.  Rayerrpa is the Alyawarre name.  That snake starts at Amaroo, in Paddy Woodman’s country.  My snake took off from Julinja and went to Nicholson river.  I sing him from Julinja, with rain dreaming.  Rain dreaming went west from Julinga , to Renner Springs.

   7.That place, Wurundula, marked with a cross on the map, east of the ELA, is dog dreaming.  It came up from Ali Curung, stopped at Wurundula, and travelled on to Doomadgee, and then to Mornington Island.  The dog dreaming takes the Gujika, the song, for the young men through there, but there is also other business too.  It’s men’s business, women are not suppose to know.  For that place, Wurundula, I am kurda, with Harold Punch, Ray Punch, David Punch and Lesley Punch.  Ray Slater and Paul Slater are Kurdungurlu, but Cyclone Ward comes behind, he knows about it and teaches them.

   8.Flying fox dreaming comes from Lake Nash and goes to Gidgee Creek and Burrudu, marked on the map, to the northeast of the ELA.  Old Rankin is boss for those places.

   9.Cyclone Ward, Ray Slater, Billy Riley are kurdungurlu for that country where the ELA is.  There’s also a big mob in Queensland.  The Kurdungurly, he’s the bloke who tells me what to do, for business.  He’s a bit like a policeman.  When you have the ceremony, you’ve got to stay there, you can’t move.  The Kurdungurlu brings the food, paints me up.  If you make mistakes with the song, you will get into trouble with the Kurdungurlu.  Limbumarangunu, he’s passed away now.  He was the proper Kurdungurlu for that country where that ELA is.  His kids are Leanne and Thomas Chungloo, and Esie Ellis.

   10.This ELA is part of Arruwurru country.  Arruwurru country goes from the south across the Barkly Highway to south of the Rankin River.  It is for the Slater mob, Mary Slater is Bukaru for Aruwurru country.  Also Miasie at Wunara, Harold and David Punch and Ray Punch.  The Kurdungurly for Arruwurru country are Ray Slater, Tiny Slater, Minnie Slater, Trish Slater and a big mob in Queensland.  I am boss for Arruwurru country as well, and Arruwurru are bosses for Purrukwarra country.

   11.On the ELA, I was staying on that country for awhile, me and Johnny Draper.  I’ve been out there lots of times.  I went hunting over that country, went footwalking to walkabout camp at Lorne Creek and Soudan, in the 1960’s.  I think it was.  Young men had business ceremony ag Gulunggurru, at Lorne Creek waterhole.

   12.I’m worried – this mob too – they will damage that country.  I think about the sacred places, the walkabout country, bush tucker, bush potato, bush tomato – they all grow on that country.  Proper sweet that bush potato, Minaju or Manaji – two ways – we call that bush potato.  I’ll be proper angry if that mining company doesn’t let me know what they are doing.

   13.That mining company shouldn’t be there without permission.  We can’t control wether they go, they might damage a sacred site.  I will get into trouble from the Kurdungurlu if that country is damaged.  In aboriginal law, I could be killed, might take a few years, but I’ll get into trouble.  The mining company should come and see us, and we could all go and take a look, see that they’re going to do.  We all have to make a decision.

1. Each of the above affidavits is accompanied by a map, which is the same in each case.  Each copy is signed by Angus Limerick and Tony Willy, and has marked upon it manually the approximate location of some of the places referred to in the affidavits, as follows:

   -   Julinja is near a microwave tower, about 22 kilometres west of the licence area;

   -   Wurundula/Barry Caves are about 13 kilometres east of the licence area; and

   -   Gidgee Creek, Uguladji and Burruda range from about 25 to 40 kilometres north-east of the licence area.

2. The Contentions of the native title party do not assert that there are Aboriginal communities within the licence area, but state that there are several “in the vicinity”.  These communities are named, but their actual locations are not stated.  Reference to the government publication “Northern Territory Aboriginal Communities” (15 April 2002) and the accompanying “Aboriginal Communities Map” (updated 14 February 2002) reveals the following details and approximate distances:

   -   Wakaya Aboriginal Land Trust.  Presumably this is a reference by the native title party to the Purrukwarra small family outstation, reference number 732, located on the Trust land about 60 kilometres west of the licence area.

   -   Illawurru.  This is small family outstation, reference number 904, located about 75 kilometres north-east of the licence area.

   -   Wunara.  This is small family outstation, reference number 707, located about 5 kilometres east of the eastern-most point of the licence area.

   The government publication classifies small family outstations or homelands as those with up to 20 people in permanent or semi-permanent residence, with a water supply and permanent accommodation.  This is in contrast to other classifications of town camp, medium size (minor) community of 20 – 100 people, and major community (over 100).

   No information is provided by the native title party about any of the above communities listed by it, and in particular, about any activities of the people at Wunara with respect to the licence area.

3. The Dalmore Downs application states that the native title claim group is comprised of the Wakaya People who are traditionally connected with the area claimed.  They are all the people descended from six identified apical Wakaya persons.  It is stated that members of the Wakaya People were successful claimants in the Wakaya/Alyawarre Land Claim under the Aboriginal Land Rights (Northern Territory) Act 1976. “The land subject to this claim [i.e. the Dalmore Downs application] “is in proximity” to the area subject to the land claim (Schedule A, paragraph 3).

The extracts from the Wakaya/Alyawarre Land Claim Report No. 34 set out areas recommended for grant, identified by description (paragraph 1.5) and by map (which is not provided), and set out the finding that each claimant group covered by the Report has the right to forage over the land for which it has primary responsibility, but as a result of the semi-desert conditions, the right to forage is more flexible and open to negotiation with a wider range of people than is true of groups in better watered areas (paragraph 4.26).  Likewise, the density of sites over the claim area is lower than on the surrounding region because of its aridity.  There is a co-relationship between the sources of water and named places.  The lack of sites and named places in such areas does not necessarily indicate cultural breakdown or a lack of knowledge (paragraph 4.27).

1. The information provided by AAPA does not list any registered or recorded Aboriginal sacred sites within the licence area.  Listed sites within the general region include the following nearest to the licence area:

   -   Gulira, site 6058-1, status 40, about 48 kilometres west of the licence area;

   -   Wurundula or Barry Caves, site 6257-1, status 12, about 12 kilometres east;

   -   A cluster of sites, status 10, about 30 to 38 kilometres south;

   -   A cluster of sites, status 10, about 40 to 50 kilometres to the east;

   -   A cluster of sites, about 27 to 50 kilometres to the north-east: including Uguladgi or Oolgoolgarri Swamp, status 10, 22 kilometres south-west of Ranken Store; Gidgee Creek, described as a section of the Rankin (sic) River, status 12, 10 kilometres south – south-west of Rankin (sic) Store; Rankin (sic), a waterhole on the Rankin (sic) River, status 12, to the west of Rankin (sic) Store; Burrudu, a waterhole on the Ranken River, status 12, 10 kilometres south-west of the Ranken Store, marked on the map as Boorodo Waterhole.

The Affidavit of Hugh Joseph Bland (30 November 2001) tendered in DO01/13 and included in the ‘generic’ material, explains the meaning of the status code used by AAPA.  Status 40 indicates a registered site.  Status 10 indicates that a site is recorded, and deemed to be significant according to Aboriginal tradition, but has not been evaluated or placed on the Register.  Status 12 indicated that the site is recorded, not yet registered, but that research has confirmed the location and established the significance of the site.

1. The affidavit of Mr Stead (8 October 2001) and his oral evidence (3 December 2001) and the affidavit of Mr Foy (6 November 2001) with the annexure ‘Exploration Activities’ and his oral evidence (4 December 2001) have now been submitted in evidence in standard form in a number of expedited procedure objection inquiries.

Similarly with the memoranda prepared by Mr Frith setting out his analysis of the relevant mining legislation ‘Rights conferred under an exploration licence’ (8 October 2001) and the relevant sacred sites legislation ‘Analysis of legislation dealing with significant areas and sites’ (7 November 2001).

1. Mr Stead’s affidavit, and his oral evidence, is in part to the effect that the AAPA Register is unlikely to be accurate or complete for all of the areas or sites of significance that might be relevant.  There may well be sites that have not been brought to the attention of AAPA for a variety of reasons, and the details of those that are known may be deficient through lack of opportunity to investigate in more detail.  This is acknowledged in the status classification system and particularly in the distinction made between registered sites and recorded sites.  I accept Mr Stead’s argument that the absence of reference to a site in the AAPA records does not necessarily mean that the site does not exist, and that if there is a reference it may not be accurate or complete.

2. Mr Foy is a widely experienced geologist and exploration manager. He has been employed by the Northern Land Council since 1995, and is the Senior Project Officer - Mining.  His document ‘Exploration Activities’ describes the nature of a range of technical activities that a grantee party may choose to undertake under an exploration licence granted in the Northern Territory.  It comments upon exploration activities ranging from desk research through remote sensing, geological mapping and sampling, geochemical surveying, geophysical surveying, costeaning (trenching), drilling and (in the feasibility stage) ore reserve drilling and metallurgical testing.

Mr Foy’s document was closely tested during oral evidence are given by him on 4 December 2001, in objection inquiry DO01/11.  The transcript of that evidence is included in the ‘generic’ material submitted as evidence in the present inquiry.

Several points that emerge from Mr Foy’s oral evidence are of relevance in the present inquiry:

(1)     That in some respects his document is dated, due to changes in practice and new technology.

(2)     Of the three levels of exploration activity, progressing from primary, through secondary, to tertiary, the only substantial disturbance likely at the first two levels would be in preparation for access to the area, in which case approval would be required.

(3)     Tertiary level activity involving extensive intrusive work would require approval.

(4)     The second schedule conditions attached to an exploration licence are extremely good. A criticism made by Mr Foy is that there is very little inspection of sites and works.

1. With respect to the potential application of the evidence of Mr Stead and Mr Foy to the specific issues that need to be addressed in section 237 of the Act, the following was stated by Deputy President Franklyn QC in Don Rory and Jack Hogan/Northern Territory/Astro Mining NL, NNTT DO01/110 and DO01/111, 10 May 2002 (‘Don Rory’) at paragraph [13]:

   “In determinations (DO01/40, DO01/41) Hazelbane and Ors/Northern Territory/Johnston: 27 March 2002 and (DO01/70 and D01/71) Riley and Foster/Northern Territory/Johnston and Sakurai: 17 April 2002) I have commented on the weight and effect of the evidence of Mr Foy and Mr Stead given in those inquiries in terms identical to the evidence produced from them in the present inquiries. With every respect for their qualifications and experience demonstrated by that evidence, I find the same to be of too general and hypothetical a nature to be helpful in respect of the issues involved in these inquiries. Neither addresses the issues raised by s 237(a), (b) and (c) of the Act, other than in very general terms and with two (sic) little particularity to lead to a conclusion in respect of the issues one way or the other. This evidence does not assist in the identification of a community or social activity carried on by the holders of native title likely to be interfered with by the grant, nor of any area or site of relevant particular significance likely to be so interfered with. Nor does it provide evidence of the views of the objecting groups or of others as to whether the grant is likely to involve “major disturbance” within the meaning of s 237(c) of the Act (See Dann v Western Australia (1977) 144 ALR relied on by both the objectors and the Territory), or take into account the overall effect of the legislative regime which controls the exercise of rights under an exploration licence, ie the Mining Act as amended by Act No. 44 of 2001, the Mining Management Act No. 43 of 2001, the Northern Territory Aboriginal Sacred Sites Act and the Northern Territory Aboriginal Land Rights Act.”

2. I respectfully adopt these comments as to the general thrust of the evidence by Mr Stead and Mr Foy. I have found the material to be of assistance in coming to appreciate the issues that must be addressed, the possibilities that might arise, and what to look out for in other evidence, but the difficulty in making further use of much of the material lies in its generality. The material is ‘generic’ but inadequate. There is the need to match the possibilities raised with the actual evidence submitted in the particular inquiry. The predictive process that has been applicable since amendments to the Act in 1998 makes it necessary to look beyond a consideration of the legal rights conferred by the proposed tenement, and assess whether as a matter of fact the proposed future act is ‘likely’ to give rise to the interference or disturbance referred to in paragraphs (a), (b) and (c) of section 237, in the sense described by French J in Smith v Western Australia (2001) 108 FCR 442 at 450.

3. Mr Frith’s memorandum ‘Rights conferred under an exploration licence’ is in the nature of counsel’s advice listing what an exploration licence will authorise the grantee to do, the conditions which may be imposed, and associated rights available to a licence holder. A comprehensive listing of what might be done is a step along the path of evaluating the likely impact of exploration activities, but as indicated above, since amendments to the legislation in 1998 what is now required is an evaluation of the risk that activities will occur and will have one or other of the consequences listed in section 237 of the Act.

The document is now somewhat dated, for the reasons given by Deputy President Franklyn QC in Don Rory at paragraph [12]:

[The document] “… is a handy reference to the relevant provisions of the Mining Act (NT) as they were prior to the Mining Amendment Act 44 of 2001 and the Mining Management Act 43 of 2001. It directs attention to the then relevant provisions of that Act, but comments on only some thereof, so that recourse to the Act is still required for a full understanding of its provisions. It is now dated by reason of the said two Acts, numbers 43 and 44 of 2001.”

1. Mr Frith’s memorandum ‘Analysis of legislation dealing with significant sites’ is another document in the nature of counsel’s advice.  The document is submitted in support of the contention by the native title party that ‘there is no legislation that provides sufficient protection to allow the NNTT to be satisfied that there is not a real or not remote chance or possibility of interference with areas or sites of particular significance, and therefore a likelihood of such interference.”  (Statement of Contentions of Objector, 7 November 2001, paragraph 63).

The following comments on the memorandum were made by Deputy President Franklyn QC in Don Rory at paragraph [12]:

[The document] “… suffers in that it does not refer to either of the said statutes of 2001, [i.e., Acts 43 and 44] is generally concerned with sites within the meaning of the Northern Territory Aboriginal Sacred Sites Act and the Northern Territory Aboriginal Land Rights Act and is very limited in its consideration of the meaning and effect of s 237(b) of the Native Title Act.  I find that [the document] adds little if anything to the submissions contained in the objectors contentions.”

Government party evidence

1. The map submitted by the government party shows that part of the licence area covers the south-west corner of West Rankin PPL 914, but that the bulk of the licence area lies within the south-east section of Dalmore Downs PPL 988, to the north of the Barkly Highway.  The licence area fronts the Highway for more than 30 kilometres.

Information submitted states that there are no other current mining tenements on the licence area.  There was authority to prospect AP 1082 from 12/08/1963 to 11/02/1964, and AP 2161 from 12/12/1968 to 11/02/1971.  The latter was of some significance, as explained later.  Various exploration licences were held through the period 1973 to 1981.

South of the licence area, on the other side of the Barkly Highway, there is the land of the Arruwurra Aboriginal Corporation (held under Northern Territory freehold title), the northern portion of which, closest to the Barkly Highway, is covered by exploration licences.  Also immediately south of the Highway, but west of the Arruwurra land, is the land of the Wakaya Aboriginal Land Trust (held under the Aboriginal Land Rights (Northern Territory) Act 1976). Along the eastern portion of the Trust land there is an area subject to an exploration licence.

The licence area is surrounded to the east, west and north by ELA 22809, and immediately to the north of that there are further ELAs, extending to the east and west.

As a result, the licence area is effectively surrounded by exploration licences to the south, and by exploration licence applications to the east, west and north.

1. The government party has submitted its Standard Exhibit, which includes extracts from material that regulates the activities of the holder of an exploration licence in the Northern Territory.  This comprises legislation, terms and conditions of the licence, and guidelines and other material that is routinely brought to the attention of the grantee of an exploration tenement.  The Standard Exhibit includes (amongst other things) the following:

   (1)A standard letter to accompany the exploration licence.  Particular attention is drawn to the provisions of the Northern Territory Aboriginal Sacred Sites Act 1989, the terms of condition 18 of the Second Schedule, the requirements for prior approval of any proposed substantial disturbance activities, and the provisions in clause 4 of the First Schedule as to compensation payable to a native title holder.

   (2)A pro-forma exploration licence, which includes the terms and conditions set out in the First and Second Schedules. Clause 4 of the First Schedule is referred to above. The Second Schedule contains a number of conditions particularly relevant to protection of native title rights and interests that might otherwise be affected by proposed exploration activities. The conditions are imposed by the Minister pursuant to powers conferred by section 24A of the Mining Act.

   Condition 1 requires the Licensee to carry out activities in a way that minimises any impact on native title rights and interests in the licence area, in particular by ameliorating:

   (a)     any interference directly with the carrying on of community or social activities of registered native title claimants or holders; or

   (b)     any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.

   Condition 2 relates to minimisation of disturbance to the environment, including the use of the land by other persons.

   Condition 3 requires instruction to all personnel on the legal necessity to protect sacred sites which may exist within the licence area.

   Condition 4 requires the Licensee to consult with the Aboriginal Areas Protection Authority prior to carrying out any work.

   Condition 5 prohibits firearms.

   Condition 6 requires removal of structures etc at completion of the exploration program unless otherwise approved.

   Condition 7 limits the use of fire, and requires appropriate steps to avoid bushfires.

   Condition 8 prohibits new vehicle tracks unless unavoidable, and imposes certain requirements.

   Condition 9 requires that clearing of vegetation be kept to a minimum.

   Condition 10 requires steps to prevent the spread of noxious weeds.

   Condition 11 prohibits disturbance of historic structures.

   Condition 12 requires minimal disturbance to soil, rocks, creeks, watercourses.

   Condition 13 requires replacement of topsoil.

   Condition 14 requires removal of rubbish.

   Condition 15 requires precautions to prevent contamination of surface and underground water.

   Condition 16 protects artesian groundwater encountered during drilling.

   Condition 17 requires that to the extent possible the Licensee should choose drill hole and excavation sites to minimise environmental impact, and after completion to seal off, plug or cap.

   Condition 18 requires the Licensee prior to commencement of exploration activities (other than reconnaissance), to convene a meeting on the licence area (or nearest convenient locality) with registered native title claimants or holders to explain the exploration activities.  The Licensee must have regard to representations made to it regarding any aspect of the exploration activities which raises concerns.  These representations may deal with the avoidance access procedures of particular areas of land within the licence area.

   Condition 19 provides that the Licensee must obtain prior approval for all exploration activities likely to cause substantial disturbance to the surface of the licence area, such as drilling, costeaning, gridding, bulk sampling, camp establishment or road construction. Additional conditions may be imposed relating to environment, rehabilitation, and auditing of compliance. (This condition is based on section 24 (e) to (g) of the Mining Act, but those provisions have been superseded by the Authorisation provisions relating to proposed substantial disturbance, contained in sections 35 to 37 of the Mining Management Act 2001, referred to below).

   Condition 20 provides that should any native title claimant or holder lodge a written complaint with the Minister that exploration activities are being conducted in a manner that adversely affects native title rights and interests in the licence area, the Minister may seek an explanation, requiring the Licensee to attend a meeting with the Minister and the complainant, direct or undertake rectification work, or take other appropriate action including cancellation of the licence.

   Condition 21 requires that native title claimants or holders be informed of any application for a mining lease, so that future act procedural rights may be exercised.

   Condition 22 requires preference to employment of local persons and contractors to the extent possible.

   (3)An Information Sheet, ‘Aboriginal Areas Protection Authority – Protection of Aboriginal Sacred Sites in the Northern Territory’.  It notes that all sacred sites are protected under Commonwealth and Territory laws, whether or not they have been ‘declared’, ‘registered’ or otherwise brought to official attention.  The document explains the procedures under the Northern Territory Aboriginal Sacred Sites Act. Information may be sought from the AAPA on the existence of sites within a given project area. It is pointed out that the information held by AAPA is not definitive, and inspection of the Register is not in itself an appropriate [i.e., sufficient] way of determining the location of sites where proposed works may disturb the natural features of an area. The procedure for Site Avoidance Surveys (Authority Certificates) is explained. If application is made for a Certificate (which indemnifies the holder against prosecution under the Act, if it has acted in accordance with the provisions of the Certificate), the Authority is obliged to consult with Aboriginal custodians for the area in question, arrange meetings between the custodians and the proponent, liaise with all parties, and assist them to reach an appropriate agreement. If, following consultation, the Authority determines that the proposed work or use of the land could proceed without substantive risk of damage to or interference with a sacred site on or in the vicinity of the land, or an agreement has been reached between the custodians and the applicant, the Authority shall issue the Certificate. The Certificate may include conditions on which the work may be done.

1. The Standard Exhibit contains references to, and extracts from, provisions of the mining legislation that are applicable to the grantee of an exploration licence.  They include the following:

(1)Section 24 of the Mining Act provides that the licensee will:

(b)     not extract or remove more material than amounts for sampling purposes;

(j)     conduct activities in such a way as not to interfere with the lawful activities or rights of any person on or in relation to land adjacent to the licence area;

(k)     not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory.

(2)Section 24A gives the Minister general powers additional to those derived from sections 24 and 166, to impose conditions in an exploration licence. These may include a condition about ways of minimising the impact of the grant of the exploration licence on registered native title rights and interests in relation to the land concerned, including about any access to the land or the way in which anything authorised by the grant might be done. This section provides a statutory foundation for the conditions in the Second Schedule referred to above.

(3)Section 166 imposes general conditions upon various tenements, including exploration licences. Of particular note is subsection 166(1A), added with effect from 1 January 2002. It provides that all exploration licences are granted subject to the condition that the holder of the licence must also hold the relevant Authorisation before carrying out on the licence area any exploration operations or works involving substantial disturbance.

(4)Sections 35 to 37 of the Mining Management Act 2001, effective 1 January 2002, provide a scheme for regulation of substantial disturbance. This replaces the regime previously contained in conditions (e) to (g) in section 24 of the Mining Act.  For the purposes of this Act, ‘mining activity’ by definition includes exploration for minerals, and corresponding definitions apply.

-       Section 35(1) provides that the operator for a mining site must not carry out mining activities on the site unless it has first been granted an Authorisation.  However, section 35(5) provides that section 35 does not apply to the carrying out of exploration for minerals unless it is to involve substantial disturbance of the surface of the site.  If substantial disturbance is contemplated, then a mining management plan must be submitted (section 35(3)).

-       Section 36(2) provides that before the Minister may grant an Authorisation, he must be satisfied that the management system will promote protection of safety and health of persons and the environment on site, and that the management of the mineral resources will be in accordance with good mining practice.

- Section 37(1) provides that an Authorisation may be subject to conditions specified.

1. The evidence of the Government party also includes the affidavit of Timothy Milne Gosling (5 December 2001) and the extensive annexures to it, originally tendered by the government party in objection inquiry DO01/13, and now included in the ‘generic’ material. Mr Gosling’s affidavit was sworn before the legislative changes that operate as from 1 January 2002. It deposes to the processes under section 24(e) of the Mining Act for approval of activities likely to result in ‘substantial disturbance’. These processes were aimed at minimising damage, and provided for rehabilitation. As from 1 January 2002 a more comprehensive substantial disturbance regime has been in place, by virtue of the Authorisation process set out in the Mining Management Act 2001 (NT). There is no reason to doubt that the views put in Mr Gosling’s affidavit attesting to the effectiveness of the substantial disturbance regime before 1 January 2002 are equally applicable to the regime in place since then.

As noted by Deputy President Franklyn QC in Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, 27 March 2002 (‘Gabriel Hazelbane’). at paragraph [16]:

It must be assumed that the Minister and Secretary will administer their obligations under the Acts in accordance with the terms of the Mining Act and Mining Management Act and the philosophy of the Mining Act as apparent in sections 24, 24A and 166 of the Mining Act, and sections 35 to 46 of the Mining Management Act. The presumption of regularity applies.

I respectfully adopt this approach.  There is no evidence in the present inquiry sufficient, in my view, to rebut the presumption of regularity with respect to the grant and future supervision of the proposed exploration licence.

Evidence relating to the grantee party

1. The government party has submitted the application dated 26 September 1997 by the grantee party for the grant of the exploration licence.  A licence is sought for 6 years.  Attachments to the application include the following information:

   (1)Pilbara Chemical Corporation NL is a subsidiary of Rare Earths and Minerals Pty Ltd.  The latter was incorporated in 1987 as a principle holding company and project development vehicle.

   (2)The first stage of a Project Definition Study (‘PDS’) has been done, to support the technical feasibility of a project to produce phosphate from deposits located in the licence area (referred to as ‘Wonarah’).

   (3)Exploration was done previously at Wonarah pursuant to AP 2161.  Drill holes were done in 1967 (12 holes), 1968 (26) and 1969 (101) by IMC Development Corporation (‘IMC’).

   (4)The proposed work program for the first year of the exploration licence will be to complete the PDS, with a view to evaluating further the viability of the project.  During that period it is desirable, but not essential, to obtain samples of phosphorite.  This phase of the study could be completed using data as to known reserves of phosphate delineated earlier by IMC, when regional mapping, geophysical, drilling and test work activities were performed.  Information is also available from some low-level aeromagnetic survey of an area adjacent to the Wonarah deposit, performed by CRA Exploration Pty Ltd (‘CRA’) in 1983/1984.  The total minimum expenditure proposed for the first year is $12,000.

   (5)The proposed work program for the second and subsequent years will consist of infill and exploratory drilling of the former IMC and CRA areas respectively, sampling and analysis, and obtaining environmental and other regulatory approvals.

2. The Statement of Contentions of Grantee Party (12 November 2001) was signed and submitted by Mike Fitzpatrick, Superintendent Tenements, Rio Tinto Exploration Pty Ltd.  It contains some statements of fact and intention, as distinct from contentions, which I take to be equivalent to unsworn statements of evidence by Mr Fitzpatrick.  These include the following extracts from paragraphs 2 and 9 of the Statement of Contentions:

   “2. ……..Rio Tinto is the Manager of EL 9978 pursuant to the Wonarah Farm-In and Joint Venture Agreement dated 13 July 1999”

   “9…….if the exploration licence is granted, the Grantee will comply in all respects with:

   (a)Northern Territory and Commonwealth legislation (including the Mining Act, the Northern Territory Aboriginal Sacred Sites Act 1989 (NT), the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Native Title Act 1993 (Cth));

   (b)the conditions of the exploration licence itself;

   (c)Rio Tinto’s Community Relations and Environmental Policies, with the following effect:

   (i)      the Grantee is sensitive to the interests of all Aboriginal parties affected by its exploration activities and endeavours to minimise the social and environmental impact of those activities;

   (ii)     the Grantee will communicate in an open and honest manner with all community representatives and exercise respect and consideration when engaging with Aboriginal parties;

   (iii)   prior to conducting work programs during the course of exploration, the Grantee will ensure that an appropriate process of Aboriginal heritage protection is conducted, commensurate with the proposed level of impact of each program;

   (iv)   the Grantee recognises the special connection to land and waters that Aboriginal parties may hold and acknowledges that there may be places that Aboriginal parties may wish that exploration activities be excluded for cultural reasons.”

3. The inference is that Mr Fitzpatrick is duly authorised by the grantee party to make the above statement of intention on its behalf, by virtue of Rio Tinto being the Manager pursuant to a farm-in and joint venture agreement, and by reason of Mr Fitzpatrick submitting contentions on behalf of the grantee party.  Accordingly I accept the statements in the preceding paragraph as being statements of present intention by the grantee party.

Section 237(a): Interference with carrying on community or social activities

1. The issue is whether the act is likely to interfere directly with the carrying on of the community or social activities of the native title claim group in relation to the land or waters concerned.

2. As noted in paragraph [20] above, there is no evidence of any Aboriginal community on the licence area.  The nearest is at Wunara a small family outstation located about 5 kilometres east of the licence area.  There is no evidence provided about the details of this community, or whether its members engage in any traditional community or social activities in the licence area.  Similarly, there is little evidence about the community on the Wakaya Aboriginal Land Trust, which is apparently the Purrukwarra small family outstation, 60 kilometres west of the licence area.  It is noted that Tony Willy states that he has a house on the Wakaya Land Trust, but he hasn’t been there for a while.  His sister, brother and nephew died there.  He might start up a new place somewhere out there (affidavit, paragraph [2]).  Further, there is little evidence about the community at Illawurru, on the Alexandria pastoral lease, about 75 kilometres north-east of the licence area.  Angus Limerick was born there, and has spent substantial periods of time in that region (affidavit, paragraphs [1] and [2]).

3. The Barkly Highway passes along the length of the southern boundary of the licence area.  The greatest direct distance of any part of the licence area from the Highway is about 12 kilometres, and most of it is much less.  A track traverses the narrow western end of the area for 2.5 kilometres, and there is another track in the north-east corner, following the common boundary of Dalmore Downs PPL and West Ranken PPL at that point.

4. The native title party contentions claim that a number of community or social activities occur “over some or all of the licence area, and in its vicinity”.  I find the sweeping generality of that statement of no assistance.  It is necessary to pick through the evidence of activities to determine which, if any, of it relates to the licence area.

5. Foraging:  Reliance is placed upon paragraph [4.26] of the Wakaya/Alyawarre Land Claim Report.  This refers to the right of each claimant group to forage over the land for which it has primary spiritual responsibility.  The Report notes the flexibility in the right to forage, being open to negotiation with a wider range of people in the case of semi-desert regions.  Tony Willy states he has seen the map with ELA 9978 on it, and all of that is Wakaya country (paragraph [3]).  He also says that the ELA is part of Arruwurra country (paragraph [10]).  Whether traditional foraging actually takes place on the licence area, and whether there is likely to be interference with it, is covered by the examination of specific activities set out below.

6. Hunting, fishing, gathering bush tucker, camping, quiet enjoyment, looking after country:  The native title party contentions rely on paragraphs [5] and [6] of Angus Limerick’s affidavit, and paragraphs [11] and [12] of Tony Willy’s affidavit.  These are set out in full at paragraphs [17] and [18] above.

7. In paragraph [5] of his affidavit Mr Limerick states “I’ve been on that country, we bin walk around”.  This would appear to be the ‘country’ referred to in paragraphs [3] and[4] of his affidavit, which seems to refer to or indicate the licence area, but it is not completely clear in paragraph [5]about the extent to which he is referring to the licence area (‘the ELA’), or the Wakaya country generally.  It seems the statement “we would go camping, fishing” relates to Lorne Creek, which is about 40 kilometres east of the ELA.  The statement “we used to go hunting, get bush tucker, porcupine, goanna, and kangaroo” seems to refer to when camping at Barry Caves (or Wurundula) located east of Wunura and about 10 kilometres east of the eastern-most point of the ELA, along the Barkly Highway.  The statement “we bin walk around” is qualified in time by “I can remember we were there in the 80s.”  There is no explanation of who “we” were.

In paragraph [6] Mr Limerick refers to ceremonies at Soudan and Lorne Creek “a long time ago”.  Soudan is about 40 kilometres east of the ELA.  He also refers to Wunara as an important place.  It may be accepted that members of the Wakaya People have responsibilities for looking after the country throughout their traditional area, but there is nothing in Mr Limerick’s evidence to suggest that significant physical activities for that purpose take place within the ELA.

1. In paragraph [11] of his affidavit Mr Willy states that he was staying on the ELA for a while, with Johnny Draper.  He does not say why, or what they were doing.  He states that he has been out there “lots of times”.  He does not say in what period of time.  There is reference to walking to walkabout camp at Lorne Creek and Soudan in the 1960s.  It is not clear whether the visits to the ELA were in that period too.

In paragraph [12] Mr Willy refers to walkabout country, where “bush tucker, bush potato” grow.  Again, this might be a reference to the ELA or the Wakaya country generally.

1. The evidence of Mr Limerick and Mr Willy demonstrates their personal activities, some of which have been on the ELA, perhaps a long time ago.  In my opinion, however, it is inadequate to build up a picture of any significant community or social activities of the native title claimant group on the licence area.  To the extent that there are references to the licence area, there is a lack of particularity and substance as to where within the licence area, if anywhere, those activities take place, who participates, the frequency and currency of them, and how access to country is achieved.  It is against this background of community or social ‘activities’ that the likelihood of interference is to be assessed.

2. The native title party contends that the proposed grant of the exploration licence will authorise the grantee party to engage in a range of activities that will directly interfere with the carrying on of the community or social activities of the native title claim group.  These exploration activities include the presence of exploration personnel and equipment; the use of access roads or trucks; construction of tracks, roads, camps sites; increased traffic; and a range of environmental impacts.  It is contended that all of this is likely to directly impact on the claimants’ ability, confidence and desire to access and utilise the licence area, so that there is a real or not remote chance or possibility of direct substantial interference with community or social activities.

3. The above contention really amounts to a listing of all the things that the grantee of an exploration licence may do, whether or not in fact they are likely to be done, and more particularly, has little or no regard to the regulatory context in which the activities would take place in any event.

4. I have set out at some length in paragraphs [31] to [33] above material relating to the statutory provisions and the administrative regime applicable to the regulation of activities pursuant to an exploration licence in the Northern Territory.  Of particular significance are the provisions, terms and conditions designed to protect native title rights and interests, including requirements added since 1 January 2002.  Not only are these controls applicable, but also active steps are taken by the government administration to bringing them to the notice of a grantee party.  Certainly following this inquiry the grantee party in this matter could not profess ignorance of them.

5. In the context of sections 237(a) and 237(b) there is particular relevance for Condition 1 of the Second Schedule, which contains a general obligation upon the grantee to minimize interference with traditional community or social activities, or interference with areas or sites of particular significance. Against that background, the conditions relating to consultation (condition 18) and resolution of complaints (condition 20) take on added significance. The provisions of conditions 1, 2, 3, 4, 18, 20 and 21 of the Second Schedule are all specifically directed to the protection of native title rights and interests. In addition, the rest of the conditions also serve, directly or indirectly, to prevent or minimize interference with community or social activities, or areas or sites of particular significance. The effect of legislation directed specifically to sacred sites is considered in relation to section 237(b), but to the extent that there are physical activities associated with areas or sites, then legislation directed to protection of sacred sites tends to facilitate physical activities associated with them.

6. In Arthur Que Noy and Others/Robert Michael Biddlecome/Northern Territory, NNTT DO01/114, 19 July 2002 at [32], Member Sosso states:

   “The regulatory regime in force in the Northern Territory contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities.  …. the cumulative effect of the various provisions in the Mining Act is such, that it is possible to infer that there is a comprehensive and well integrated legal regime which is aimed at preventing (as far as is practicable) interference with community or social activities by explorers. While this regime does not render otiose an assessment pursuant to section 237(a), nevertheless the existence of such a regime is an important factor to be considered when making a predictive risk assessment …”

I respectfully adopt those observations.

1. The government party has tendered the exploration program submitted by the grantee party in support of its application for the grant of the exploration licence.  See paragraph [34] above.

2. The grantee party, through Rio Tinto as Manager of the Farm-In and Joint Venture, has expressed the intentions set out at paragraph [35] above, concerning observance of legislative requirements, licence conditions, and Rio Tinto’s Community Relations and Environmental Policies.  In the latter there is emphasis upon communication and consultation with Aboriginal parties, and taking into account any concerns.

In the ordinary course of events the Tribunal is entitled to assume that the grantee party will act lawfully, and that it will give effect to its present intentions.  Presumption of legality and continuity are capable of rebuttal in appropriate circumstances, but I am not aware of any such circumstances in the present matter.

Conclusion as to section 237(a)

1. In Smith v Western Australia (2001) 108 FCR 442 at 451 French J stated that interference:

   “must be substantial in its impact upon community or social activities.  That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.”

2. The evidence of Mr Limerick and Mr Willy attests to the continued exercise of at least some traditional activities within the country covered by the Dalmore Downs application, particularly in the region to the east of the licence area, and at least in the period of two or three decades ago.  The evidence relating to community and social activities on the licence area however, is relatively scant, particularly as to the number of persons engaging in any such activities, the nature and frequency of those activities, and how current they are.  There is no evidence at all concerning identifiable places or areas within the licence area of about 218 square kilometres.

1. The scarcity of evidence about community and social activities is combined with the vague generality of the evidence as to the likely impact of exploration upon any such activities.

2. Against this there is the specific evidence about the requirements of the regulatory regime and its implementation, together with a statement of the intentions of the grantee party.  There are presumptions of regularity and legality about the conduct of the government party and the grantee party, neither of which is effectively rebutted by the evidence of Mr Foy or otherwise.

3. I am not satisfied that there is any real chance or risk of the proposed act interfering directly with community or social activities by the native title claim group in anything more than a trivial or unsubstantial way, if at all. In my opinion, the proposed act is an act attracting the expedited procedure within the meaning of section 237(a) of the Act.

Section 237 (b): Areas or sites of particular significance

1. The issue is whether the act is likely to interfere with areas or sites of particular significance in accordance with the traditions of the native title claim group.

2. The contentions of the native title party argue that “All areas and sites have particular significance.  Their identification and naming as separate to the other areas of country is evidence of their significance”.  I cannot accept this blanket assertion.  Plainly the legislation is drawing a distinction between areas and sites that are of ordinary significance, and those that are of special, or more than ordinary, significance in traditional terms.  See Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 34 per Carr J. It will be a question of fact as to whether a particular area or site is of particular significance, and that must be established by evidence, not mere assertion. I refer to the comments on Mr Frith’s memorandum ‘Analysis of legislation dealing with significant sites’, set out in paragraph [29] above.

3. In this matter there is, in my opinion, no evidence of an area or site of particular significance on the licence area. I accept Mr Stead’s evidence that the AAPA Register is not necessarily conclusive as to whether or not a sacred site exists within any given area: the material in evidence from the AAPA itself underlines that point. See paragraphs [23] and [24] above. Nevertheless, for the purposes of section 237(b), there must be evidence to demonstrate not only the existence of an area or site, but also why it should be regarded as of ‘particular’ significance. See paragraph [70] below.

4. It has been accepted by the Tribunal that an area or site that is not located on the licence area may still be relevant.  However, evidence must reveal that the exploration activity is likely to interfere directly and physically with the area or site.  See Moses Silver per Member Sosso at paragraphs [34], [35], [88] and [89].

5. Apart from the general contention referred to in paragraph [59] above, the native title party contentions have listed seven specific areas or sites as being of particular significance, together with references to the relevant paragraphs of the affidavits of Angus Limerick and Tony Willy.  This material is listed below.  I have added the approximate distance of each area or site from the nearest boundary of the licence area, where this information is available.

6. Wunara; Angus Limerick, paragraph [6]. In fact Mr Limerick refers to this as Wunana, which presumably is distinct from the small family outstation nearby at Wunara. He states that Wunana is near Barry Caves. The latter is about 13 kilometres east of the licence area, and a short distance off the Barkly Highway. Mr Limerick states:

   “Wunana is an important place.  It’s important country, ceremonial country out there.  That means it’s an important area, a little area, like a sacred site.  We’ve got to look after it.”

He goes on to express apprehension about the consequences if the mining company goes in there.

1. Wurundula; Tony Willy, paragraph [7]. This area or site is marked on the map signed by Mr Willy. It is close to and south-east of Barry Caves. (One might wonder whether ‘Wunana’ referred to by Mr Limerick and ‘Wurundula’ referred to by Mr Willy are in the same ‘area’). Wurundula is recorded by the AAPA, status 12. Mr Willy states that the dog dreaming came up from Ali Curung, stopped at Wurundula, and travelled to Doomadgee. Further details of significance are given.

2. Burrumundu; Tony Willy, paragraph [6]. Mr Willy states that this is “at Dalmore”, presumably a reference to Dalmore Downs PPL. It is not marked on his map, but he states that it is not on the ELA. In the dreaming, the goanna left its eggs at Burrumundu.

3. Gulirra; Tony Willy, paragraph [6]. Mr Willy states that this is near Barkly Homestead, west of the licence area. The AAPS registers the site, status 40, as south side of Barkly Highway, adjacent to the roadhouse.

The site is about 45 – 50 kilometres west of the licence area, close to the Highway.  In the dreaming, the yellow goanna was camping at Gulirra.

1. Julinja; Tony Willy, paragraph [6]. This area or site is marked on the map signed by Mr Willy. It is near a microwave tower, about 22 kilometres west of the licence area. Mr Willy states that in the dreaming the black snake with the stumpy tail stopped at Julinja.

2. Burrudu; Tony Willy, paragraph [8]. This is marked on the map signed by Mr Willy. It is recorded by the AAPA, status 12, and described as a waterhole located on the Ranken River, marked on the map as Boorodo Waterhole. It is about 40 kilometres north-east of the nearest part of the licence area. The flying fox dreaming goes there, and to Gidgee Creek, about 5 kilometres to the south of Burrudu.

3. Gulung.gurru; Tony Willy, paragraph [11]. Mr Willy states that this is at Lorne Creek waterhole. This is about 50 kilometres east of the licence area. He states that young men had business ceremony there.

4. It is noted that Gulirra is registered as a sacred site by the AAPA, and Wurundula and Burruda are recorded as sacred sites.  The Tribunal has considered on a number of occasions the relevance of registration or recording (or the absence thereof) under the Sacred Sites Act, to whether an area or site is of particular significance for the purposes of section 237 (b). See for example my discussion of this in Billy Coolibah at paragraphs [64] to [68].  In brief, presence on or absence from the Register is not determinative.

5. In my opinion, the evidence shows that Wunana and Wurundula are areas or sites of particular significance.  On the basis of association with various dreamings, it is arguable that Burrumundu, Gulirra, Julinja and Burruda are all places of particular significance.  It is not clear how current is the relevance or importance of Gulung.gurru as a ceremonial place.

6. The evidence and opinions tendered by the native title party through Mr Stead, Mr Foy and Mr Firth are expressed in generalities.  They do not address the specifics of whether there is ‘likely’ to be exploration activity on or near, or affecting, the identified areas or sites of concern, in the sense of a real chance or risk that this will be so, and what the nature and extent of the interference would be if there were any such activity.

7. There is no specific evidence that exploration activities on the licence area, or for that matter any associated activities off the licence area, will interfere with the areas or sites at Gulirra (45 - 50 kilometres), Julinja (22 kilometres), Burrudu (40 kilometres) or Gulung.gurru (50 kilometres).  The distance of Burrumundu is not shown by the evidence (except that it is not on the lease), but again there is no specific evidence to suggest even a remote chance of interference.

8. Wunana and Wurundula merit closer consideration, if only by reason of relative proximity to the licence area.  There is however, again nothing in the evidence to suggest that the grantee party proposes, or indeed would be authorised, to engage in any exploration activity or associated activity on or close to Wunana or Wurundula, except to make use of the nearby Barkly Highway.

On the evidence it seems remote that in the ordinary course of events, activities on the licence area, or if it be relevant, associated activities off the licence area, are likely to interfere with either area or site.

1. There is a further safeguard.  Wurundula is a recorded site.  Wunana is not, but it is close by (if it is not actually the same area or site).  The conditions of the proposed exploration licence will trigger an enquiry and consultation process, both within and outside the provisions of the Sacred Sites Act.  See particularly conditions 1(b), 18 and 20 of the Second Schedule.  In addition, Part IV of the Sacred Sites Act provides for offences, penalties and processes in the event of unauthorised work on or use of a sacred site, whether or not the site is registered or recorded.  There is a defence based on lack of reasonable grounds for suspecting that a sacred site was there.  In the present matter, the grantee party is now on notice as to the sites about which the native title party has expressed concern.  Further, in addition to any legal obligations, the grantee party had declared its intention to engage in consultation with Aboriginal parties and consideration of their concerns, pursuant to the published Community Relations and Environmental Policies of Rio Tinto.

Conclusion as to section 237 (b)

1. In my opinion, the evidence does not establish that the proposed act is likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the native title claim group.

Section 237(c): Major disturbance to land or waters

1. The issue is whether the act is likely to involve major disturbance to any land or waters concerned, or create rights whose exercise is likely to involve such disturbance.

The native title party contends that this will be so, and that therefore the act is not one that attracts the expedited procedure.

1. The Tribunal has previously discussed the criteria applicable to section 237(c), and I have done so in Billy Coolibah.  At paragraph [101] of that Determination the following was noted:

   “The key to section 237(c) is the concept of ‘major disturbance’, whether the first or second branch of the section is applicable. This expression was considered by the Full Court of the Federal Court in Dann v Western Australia (1997) 74 FCR 391. It held that the interpretation of the expression is a question of ordinary statutory construction. In Gabriel Hazelbane Deputy President Franklyn summarised the views of the Court as follows:

   As Wilcox J observed, the word ‘major’ is an adjective of degree which requires the Tribunal, in determining whether a given envisioned disturbance is ‘major’, to make a value judgement, giving the term ‘major disturbance’ its ordinary English meaning, considering the matter of degree from the viewpoint of the community generally, its effect on local people being particularly important.  Tamberlin J observed that there is no justification for excluding the views of any section of the community nor for suggesting that the views of any particular section, in all circumstances, prevail.  “The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or water can be properly categorised as ‘major’”; and, “It is necessary to take into account the views and concerns of Native Title holders but the importance and weight to be assigned to those matters will vary in each particular case according to the circumstances and evidence produced”.  Nicholson J held that the expression “should be understood as an ordinary English term and given its ordinary meaning as understood by the whole of Australian community, including Aboriginal people”.  It is clear from the judgements that the views of the Aboriginal people must be considered having regard to the circumstances and evidence adduced.”

I respectfully agree with the conclusion by Deputy President Franklyn that the views of the Aboriginal people must be considered, but this must be done in the context of the particular circumstances and the actual evidence.

1. In Arthur Que Noy at paragraph [43] Member Sosso noted:

   “the regulatory regime … goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and to native title rights and interests are minimised as far as is practicable in the circumstances. Nevertheless despite the advanced and proactive nature of this regime, it is never a complete response to a predictive assessment by the Tribunal under section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant and has been raised), and such other issues as may be pertinent.”

2. It is important to keep in mind the differences between sub-sections (a), (b) and (c) of section 237. Even if a proposed act is not likely to interfere in the ways specified in sub-sections (a) or (b), it could still be likely to involve major disturbance of the land or waters concerned.

3. In this matter, the evidence by the native title party about likely major disturbance on the licence area does not go beyond the ‘generic’ material from Mr Frith and Mr Foy, coupled with evidence by Mr Limerick and Mr Willy which for the most part is directed to areas or places within Wakaya country other than the licence area.

I have already referred to the difficulty of giving the material from Mr Frith and Mr Foy specific application to the licence area, in the absence of specific supporting evidence.  See paragraphs [23], [25] to [28] and [72] above.

1. Anxiety is expressed by Mr Limerick at paragraphs [6] to [8] and Mr Willy at paragraphs [12] and [13] of their respective affidavits, about the possible impact of mining company activity generally.  It is not clear whether they have a sufficient grasp of the distinction between exploration activities and mining activities, or of what the grantee party proposes to do under the exploration licence, or of what the rights of the registered native title claimants will be under the future act process if an application were made in the future for a mining lease.

A major aspect of their evidence is the desire to be consulted, and to avoid damage to places of significance to the native title claim group.  It is noted however, that 139 drill holes were made on the licence area during the period 1967-1969 without attracting any adverse comment by Mr Limerick or Mr Willy in their current evidence.  In my opinion, there is nothing in their evidence to demonstrate that exploration activity, without reference to any particular location within the licence area, would amount to a major disturbance in the sense of ‘a significant impact on Aboriginals who live in or use the affected area’ (Wilcox J, Dann v Western Australia, at 395).

1. In assessing the likelihood of major disturbance in the licence area, the factors working against that likelihood include:

   -   the relatively scant evidence relating to community or social activities of the native title claim group on the licence area (paragraph [54] above);

   -   the lack of specific evidence by the native title party about likely major disturbance in the licence area;

   -   the evidence of previous exploration activity on the licence area;

   -   the absence of any material indicating that the licence area has particular environmental or geological features that call for special consideration;

   - the requirements of sections 35 to 37 of the Mining Management Act that exploration involving substantial disturbance must not be carried out unless an Authorisation is first obtained, and that it may impose conditions requiring the grantee to minimise disturbance;

   -   the provisions of the consultation and complaint provisions of conditions 18 and 20 of the Second Schedule conditions;

   -   the regime of statutory provisions, conditions and regulatory processes that not only are applicable, but are brought to the attention of the grantee party;

   -   the fact that the concerns of the native title party as to the potential impact of mining company activities upon Wakaya country in general, and the named areas or sites in particular (albeit not within the licence area), have been brought to the attention of the grantee party;

   -   the nature of the work program proposed by the grantee party (paragraph [34] above); and

   -   the stated intentions of the grantee party to comply with all regulatory requirements and to observe Rio Tinto’s Community Relations and Environmental Policies (paragraph [35] above).

2. As to the concerns about exploration generally that have been expressed in the contentions of the native title party, in my opinion there is simply no sufficient evidence to support the likelihood of major disturbance in the licence area in the sense explained in Dann v Western Australia, under either limb of section 237(c).

3. A further aspect of the grantee party’s evidence should be noted, and distinguished from the issue presently under consideration. The material submitted by the grantee party to the government party in support of the application for the grant of an exploration licence indicates that the grantee party already has substantial knowledge about the phosphate reserves in the licence area, and subject to commercial feasibility, would propose in due course to establish a mining and beneficiation operation. This then, is not necessarily one of those cases referred to by Mr Gosling in his affidavit of the odds being only about “1 to 1000” that exploration will lead to an economic deposit. The grantee party is already well on the way. The implications of mining however, are matters for future consideration, negotiation and (if necessary) determination. At this stage the question is whether the proposed act, or the rights created under the exploration licence, are likely to involve major disturbance within the meaning of section 237(c).

Conclusion as to section 237(c)

1. In my opinion, on the evidence, the proposed act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

Conclusion as to section 237 generally

1. I have examined and taken into account all of the evidence that has been submitted, together with all of the contentions by each party.  The evidence includes that which is specific to this particular inquiry, as well as the government party’s Standard Exhibit, and the ‘generic’ material. I have also taken into account the findings and commentary on statutory interpretation and other legal issues set out in recent Tribunal reasons for determination relating to objection inquiries in the Northern Territory, particularly those referred to in paragraph [16] above.  The lack of express reference to any of the above material in this Determination should not be taken as an indication that it has not been taken into account where relevant.

2. With respect to the requirements of section 237, I am satisfied that the grant of the proposed exploration licence is an act not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land or waters concerned; is not likely to interfere with the areas or sites of particular significance, in accordance with their traditions, to the holders of native title in relation to the land and waters concerned; and is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

DETERMINATION

1. The determination of the Tribunal is that the grant of Exploration Licence 9978 to Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993 (Cth).

Professor Douglas Williamson QC.

Member

5 August 2002