Angus Riley and May Foster on behalf of the Wirntiku, Milwayijarra and Ngapa groups/Northern Territory/Rodney Johnston and Motoo Sakurai

[2002] NNTTA 49

NATIONAL NATIVE TITLE TRIBUNAL

Angus Riley and May Foster on behalf of the Wirntiku, Milwayijarra and Ngapa groups/Northern Territory/Rodney Johnston and Motoo Sakurai, [2002] NNTTA 49 (17 April 2002)

Application No.:       DO01/70 (EL 9975) and DO01/71 (EL 9998)

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

Angus Riley and May Foster on behalf of the Wirntiku, Milwayijarra and Ngapa groups (Native Title Party)

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The Northern Territory of Australia (Government Party)

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Rodney Johnston and Motoo Sakurai (Grantee Party)

Tribunal:      The Hon EM Franklyn QC

Place:             Perth

Date:              17 April 2002

Catchwords: Native Title – Future Act – proposed grant of two exploration licences –expedited procedure objection applications – whether either act is likely to have any of the consequences specified in s 237 of the Native Title Act (1993) – evidence does not support objections – determination that the grant of each licence is an act which attracts the expedited procedure.

Legislation:    Native Title Act 1993; Mining Act (NT); Aboriginal Land Rights (Northern Territory) Act 1976; NT Aboriginal Sacred Sites Act; Mining Management Act (NT); Mining Management Act (NT) No. 43 of 2001 and Mining Amendment Act (NT) No. 44 (2001).

Cases:  Hazelbane and Others/Northern Territory/Johnston
DO01/40 and DO01/41: 28 March 2002
Dann v Western Australia (1997) 74 FCR 391:144 ALR 1 and
Moses Silver and Ors/Ashton Exploration Australia Pty Ltd/Northern Territory
DO01/13: 1 February 2002

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

Native Title Party Representative: Mr Ron Levy, Solicitor for the Northern Land Council.

Grantee Party Representative:       Mr Frank Freshwater, Megamin Resources NL.

Background:

[1] On 21 March 2001, the Northern Territory Government (the Government party) gave notice under s 29 of the Native Title Act1993 (the Act) that it proposed to grant Exploration Licence 9975 (ELA 9975) comprising 29 square kilometers and 9998 (ELA 9998) comprising 65 square kilometers (hereinafter together referred to as the ‘the proposed licences’) to Moto Sakurai and Rodney Johnston (the grantees), the notice including a statement that it considered each such grant to attract the expedited procedure.  The proposed licences abut one another and are situated wholly within the boundaries of Perpetual Pastoral Lease 1001 known as “Helen Springs” and within the area of registered native title determination application DO01/39. 

[2] On 23 July 2001, objections to the inclusion of the said statement in the s 29 notices in respect of each proposed licence were lodged by Angus Riley and Mary Foster, the registered native title claimants on behalf of the Wirndiku, Milwayijarra and Njapa groups under registered native title determination application DO01/39 (registered 20 July 2001) (the objectors) on the grounds that neither proposed grant fulfilled any of the criteria prescribed by s 237(a), (b) and (c) of the Act.

[3]  On 9 August 2001 directions in identical terms were made in respect of each objection application as to the manner in which the expedited procedure inquiry would be conducted providing for the lodgment and service of documents including contentions and setting time frames for compliance, the Government party to comply on or before the 28 November 2001, the objectors on or before 5 December 2001 and the grantees on or before 12 December 2001, each party being at liberty to reply, on or before the 19 December 2001, to the contentions lodged by the other parties.  The documents to be lodged by the respective parties up to 12 December 2001 having been lodged, on 13 December 2001 the grantee lodged an additional statement of contentions, and on 17 December, an application for dismissal of the objections which he withdrew on 20 December 2001 at the same time lodging and serving further additional contentions.  On the same day the objectors lodged a reply to the contentions of the Government party and the grantees.

[4] On the 5 November 2001 I was appointed the Member to constitute the Tribunal for the purpose of these inquiries.
[5]  At a listing hearing on the 21 December 2001, the Government party and the objectors, advised they did not propose to comment on the grantees’ further contentions and the grantees advised that they did not seek to respond to the objectors reply to their contentions.  The objectors were given leave to lodge and serve on the other parties and rely upon the transcript of the evidence given by Jeffrey Wilson Stead and Mark Frederick Foy on the 16 November 2001 in matters DO01/13 and DO01/19.  (The Tribunal was subsequently advised that the transcript intended was of the evidence given by Mr Stead and Mr Foy on the 3 and 4 December 2001 in a joint inquiry before Member Stuckey-Clarke in DO01/11, 12, 17, 18 and 43.  Copies of that transcript was lodged and served on the other parties and accepted as part of the material relied on by the objectors.)  At the listing hearing the Government party requested and was given leave to lodge and serve on the other parties on or before the 21 January 2002, submissions in respect of the said evidence of Mr Stead and Mr Foy and a response to the objectors’ reply to its contentions.  There was no such request by the grantees and, on 5 January 2001, they advised that they consented to said transcript being accepted into evidence.  The listing hearing was adjourned to a date to be fixed subsequent to the 21 January 2002 if not to be heard ‘on the papers’ (s 151).

[6] On the 7 January 2002 the grantees lodged and served a document entitled ‘Final and Comprehensive Statement of Contentions of the Grantee’.  There was no prior request for leave to lodge such document.  However, the other parties had no objection to the Tribunal accepting the same and it was accepted.  The Government party advised it did not propose to reply thereto and the objectors were given leave to reply on or before the 21 January 2002 which it did on 22 January 2002 which was accepted.  On the same day the grantees lodged a further document entitled ‘Additional Statement in Response to the Contentions of the Objector’.  The receipt of this document into evidence was objected to by the objectors on the basis that it was out of time, that it was the grantee’s sixth document and that it added nothing substantially new or relevant to the issues before the Tribunal.  I do not accept that document into evidence or as a statement of relevant submission.  I agree with the submissions of the native title party in that regard.  In as far as it purported to contain relevant statements of fact, they were either mere assertions or hearsay statements from unnamed sources unsupported by evidence.

[7]  I am satisfied that the determination in respect of each of these inquiries arising out the objections lodged in respect of the proposed grant of the two licences can be adequately made by considering the documents and other material lodged with the Tribunal without holding a hearing. 

Contentions and documentary evidence:

[8]  The documents and information provided by the Government party reveal without challenge that there is no Aboriginal community located on either proposed licence, the communities referred to by the objectors as being in the vicinity of the same being located between 27 and 220 kilometers from ELA 9975 and between 35 and 210 kilometers from ELA 9998, and that there are no sites recorded or registered under the provisions of the Northern Territory Aboriginal Sacred Sites Act (the Sacred Sites Act) on either thereof.  Those documents also reveal that the land the subject of proposed ELA 9975 has previously been the subject of Exploration Licences 2835, 4546, 5744, 7020 and 9022 covering the period between June 1981 and September 1997 and that the subject of ELA 9998, has previously been the subject of Exploration Licences 2835, 5744, 7020 and 9022 covering the period from June 1981 to August 1993 and, from December 1992 to August 1993, Exploration Licence 7868.  It is common ground that part of the southern boundary of ELA 9975 is common with part of the northern boundary of ELA 9998.  The Form 4 objections lodged in respect of each of the proposed tenements allege that several named communities are ‘in the vicinity of each ELA’ but do not provide any particulars of their location.  The maps produced by the Government party show, without challenge, the nearest of such communities to ELA 9975 to be Jangirulu, approximately 27 kilometers away to the north and the furthest therefrom to be Ngurrara, ‘some 220 kilometers away’ to the south east.  In the case of ELA 9998 the nearest is Namerinni, approximately 17 kilometers away to the south and the furthest to be again Ngurrara, some 210 kilometers away to the south east.  Those maps also identify the location of sites registered or recorded as sacred sites under the Sacred Sites Act within the area surrounding the proposed licences and the general locality. Applying the scale of those maps, the nearest such site to ELA 9975 is something in excess of 6 kilometers to the north-east and that nearest ELA 9998 is approximately 4 kilometers to the west. The objectors have provided Aboriginal Sites Protection Authority (AAPA) site information. In respect of ELA 9975 it refers to 16 locations and in respect of ELA 9998 to 24 locations, maps being provided in each case to show those locations in relation to the proposed tenements. Some of these locations are referred to in the respective affidavits of Angus Riley and Dick Foster to which I later refer. The information provides no evidence of any registered site, ie: one that has been documented and evaluated by the AAPA, or of any recorded or unregistered site on or in close proximity to either ELA. The map provided by the AAPA reveals the closest recorded site to ELA 9998 to be Jangkarti (marked as 5661-21), which appears to coincide with the site shown on the map provided by the Government party marked 21 being approximately 4 kilometers west of ELA 9998, and the closest recorded site to ELA 9975 to be Ngawaya (marked 5661-7) which appears to coincide with the site marked 7 on the Government party map and to be approximately 6 kilometers north-east of ELA 9975. The Government party’s material, in addition to drawing attention to the conditions referred to in s 24 of the Mining Act, also includes a statement of the conditions approved by the Minister under s 24A and those identified in s 166 of the Act which will apply to the proposed licences if granted.

[9]  In addition to their written contentions and supplementary documents (Sites Legislation Analysis and Rights under an Exploration Licence) the objectors in each case rely upon selected pages from the Warlmanpa, Walpiri, Mudbura and Warumungu Land Claim and the Warlmanpa (Muckaty Pastoral Lease) Land Claim, the affidavit evidence of Jeffrey John Wilson Stead (two affidavits sworn 8 October 2001) and Mark Frederick Foy (two affidavits sworn 6 November 2001), the transcript of evidence given by each of them in the joint inquiry conducted on the 3 and 4 December 2001, numbered DO’s 01/11, 12, 17, 18 and 43, affirmed by Tribunal Member Stuckey-Clarke, two affidavits (affirmed the 25 October 2001) of Angus Riley and two affidavits (affirmed 28 October 2001) of Dick Foster.

[10]  I find the selected pages of the Land Claims Reports relied on interesting, but of little assistance in the present inquiries.  I am grateful for the assistance provided by the Contentions, Analysis of  Sites Legislation and the document entitled ‘Rights conferred under an Exploration Licence’.  I find the respective affidavits of Mr Stead and Mr Foy and the transcript of the evidence given by them respectively on the 3 and 4 December 2001, to be of no more assistance in the present inquiries than I did in inquiries DO01/40 and 41 (Hazelbane and Ors/Northern Territory/Johnston), which were jointly determined on the papers on the 28 March 2002 and which deal in some detail with such affidavits and evidence. My conclusions as to the evidence of Mr Stead is found in paragraphs [9(c)] and [11] and of that of Mr Foy in paragraphs [9(d)] and [12] of that Determination. In short they do not address the issues raised by s 237(a),(b) and (c) of the Act with sufficient particularity to lead to a conclusion in respect of any of those issues one way or the other. The evidence of each is general and not directed to the issues raised by s 237 and the evidence relevant thereto in respect of the lands the subject of the proposed licences.

[11]  I refer to the two affidavits of Angus Riley containing his evidence in relation to ELA’s 9975 and 9998 respectively.  To each is annexed a map showing the location of the relevant ELA.  In respect of ELA 9975 he identifies it as being on land known to him and for which he is Kurtungurlu.  He deposes to being Kurtungurlu on it for ‘that Hunter Creek, Prayatku’ which, he says, goes through this ELA; to being Kirda for country near the ELA and other named places, and to be Kurtungurlu also for 12 other places, all of which he says are ‘around the ELA’.  The AAPA information includes some of the places named by him as recorded sites, all several kilometers from the two proposed licences, but makes no mention of others. Without any other identification of the places to which he speaks, he then refers to ‘all those sacred sites’, and deposes, that if mining companies go ‘out there’ without letting ‘us know’, he could get into trouble from Kurtungurlu, and that mining companies must first see Kirda and Kurtungurlu for the country.  He says, again without specification, that all of ‘these places’ are important, being places for ceremony which ‘they sing for’; that ‘we follow all these dreaming sites for ceremony’ that in the ceremony ‘the Kurtungurlu put the mark of rain dreaming on me and we put the mark for the snake dreaming on Peter Toprail because I am Kurtungurlu for Toprail’.  No explanation is given by him as to the effect and meaning of ‘Kurtungurlu’ or ‘Kirda’.  I am given to understand however, that each term describes some ceremonial function.  Assuming that to be correct there is no evidence of the nature of the ceremony or where on ‘that Hunter River Prayatku’ it takes place.  Of the various places named by him in respect of ELA 9975, eight are included in the lists of sites recorded by the AAPA referred to earlier herein, but not that of Prayatku.  I note however that on the map annexed to his affidavit the word ‘Prayatku’ has been written in ink inside the boundaries of ELA 9975 as shown there, and that the names of the other places referred to by him have also been written in ink on the map, all however being well outside and away from the said ELA.  None of the ink insertions on that map are initialed, no reference is made to them in the body of his affidavit, and no explanation as to by whom or when they were inserted is given elsewhere in the material provided by the objectors.  Comparing Mr Riley’s signature with the insertions I have considerable doubt that they are in his handwriting.  He deposes that ‘last year I was out there on Prayatku, that Hunter Creek’ hunting with his wife and 4 named persons travelling by motor vehicle, and that ‘when we go hunting we get kangaroo, emu, goanna, bush potato, bush tomato and wild banana’.  He says they use Supplejack ‘to make boomerang and nulla-nulla’ and ‘make coolomon from kulinji tree and shield from yininti tree.  We use them for ceremony business.  Those trees grow in that country’.  I accept the evidence that Hunter Creek goes through ELA 9975, but am not satisfied that any ceremony or ceremonial function is exercised on or in or in respect of that section of it as is within ELA 9975.

[12]  In respect of ELA 9998 Mr Riley refers to an identical map to that produced in respect of ELA 9975 but showing the location of ELA 9998 which has marked on it, to the west of the ELA, in ink the word ‘Jankarti’.  Again that addition to the map is not referred to in the affidavit, is not initialed by anyone and is without any explanation.  Again, I have considerable doubt that it is in the handwriting of Mr Riley.  The writing on this map appears very similar to that on the map relevant to ELA 9975, where the same word has been inserted in approximately the same location.  He deposes that he knows the country and is Kurtungurlu for it and that on the ELA 9998 is a road from Renner Springs going through to ‘old Burke near Jankarti’.  He deposes that he is Kurtungurlu for ‘Jankarti and for the other places around there’, it being ‘all Pelican country around there’.  He then refers to ‘all those sacred sites’, without any further identification, saying that ‘we use them for business’.  He refers to those ‘places’ as being important, being ‘places for ceremony’ and that ‘we sing’ for them.  He says ‘we follow those Dreaming sites for ceremony’ and that in the ceremony there is a marking of bodies for Pelican dreaming.  He does not say where the ceremonies are held.  He then deposes to being out on ‘that country earlier this year’ with ‘the Sacred Sites mob’ to check on some of those places for the railway’ and that last year he was out there hunting in a motor vehicle with the same persons as those referred to in his affidavit relevant to ELA 9975 which I take to be a reference to the same occasion.  He deposes in respect of that hunting that ‘we go through Namerinni sometimes’.  He then identifies the wild life, bush tucker and other material they get in terms identical to that used in his affidavit in relation to ELA 9975.  I point out that Namerinni is shown on the map used by the Government party to be some 17 kilometers to the south of ELA 9998.

[13]  I turn now to the two affidavits of Dick Foster affirmed 28 October 2001, each of which annexes a map identical to those annexed to the affidavits of Angus Riley, one showing the location of ELA 9975 and the other that of ELA 9998.  Those maps have the same place names written on them in ink as do those annexed to the affidavits of Mr Riley, in handwriting that appears similar to that on the Riley affidavit maps.  Again the ink additions are not initialed and how when and by whom they were made is not explained.  Mr Foster confirms the correctness of the location of the proposed licences on these maps.  He deposes that his Rain Dreaming goes through Renner Springs from Jankarti, over ELA 9975 and near ELA 9998 ‘all through there, that Burke Creek Country’.  He explains that rain went through ‘all that area, all west side from bitumen, that old Burke Station’.  One can only assume from the map that, by ‘bitumen’, he refers to the Stuart Highway, well to the east of the two ELA’s.  He goes on to say that ‘we do a lot of things ceremony side’, that he has to teach his boys a lot of things, that he paints up ‘for that Rain Ceremony’ and that a Kurtungurlu painted on his body the mark for rain dreaming.  He explains that Kurdungurlu ‘are like black policemen’.  He says that every one or two years ‘we do that ceremony for the young men’.  He does not say however where that ceremony is performed.  He says he goes out to ‘that country’ near each ELA, taking his sons and sometimes some of the girls’.  He shows them ‘where that Japurla Japurla dreaming went through, where that Rain dreaming went through.  Japurla Japurla is Laughing Boys dreaming’.  In his affidavit in respect of ELA 9975 he says that ‘Japurla Japurla goes from Wave Hill and comes east, goes west of the ELA’.  Wave Hill is not shown on the maps in evidence and Japurla Japurla is not otherwise identified.  He says in the affidavits in respect of both ELA’s that he goes out to ‘that country, near the ELA’, that they go hunting and get goanna and a lot of bush tucker, and also go there camping out.  ‘We camp out a couple of days.  My kids, meself, my wife, May sometimes, sometimes me and Garrdu -–Angus Riley – go out’.  He says that not many people live there now, that they are all in town, and that ‘we got outstation at Namerinni.  He says he would feel bad if ‘that mining company goes there.  There are a few sacred sites out there’.  He then refers to a site named ‘Jimamalkari’ which, he says, is east from ELA 9998.  It is marked on the AAPA information maps as number 5661-23.  Applying the scale of those maps it would appear to be 12 to 15 kilometers to the south east of ELA 9975 and approximately 8 kilometers south east of ELA 9998.  He speaks of the concern of the people as to possible damage to the country by mining and the possibility that kangaroos may be frightened away and bush tucker may not be there, ‘that you will have to go another place.  You used to be able to go to just one place’.  He also speaks of concern that sacred sites might be drilled and says that the mining companies should come and talk to the people.

Section 237(a)

[14] evidence as to the carrying on of community or social activities of the holders’ of native title on either proposed licence is uncertain to say the least.  In so far as it speaks of ceremonies and teaching, the evidence does not suggest these activities are held or conducted on or in such close proximity to either of the proposed licences, that the grant of either is likely to interfere directly with the carrying on of the same.  The only other activity of which evidence is given is that of hunting and foraging, in the course of which there is some camping.  This activity is said by Mr Riley to have taken place ‘last year’ on ‘that country’ which, in the context of his evidence, is a reference to a very much larger area than that of the proposed licences.  His evidence makes clear that it includes Namerinni, some 17 kilometers from ELA 9998 and approximately 27 kilometers from ELA 9975.  Similarly the evidence of Mr Foster makes clear that the country to which he refers extends well beyond the ELA’s.  For example he says he will feel really bad if the mining company ‘goes there’.  In that context he refers to Jimamalkari as being ‘out there’ east from the ELA.  Independent evidence  (the AAPA map) shows it to be some 15 kilometers from ELA 9975 and approximately 9 kilometers from ELA 9998.  There is no evidence to suggest that the activities of hunting and foraging have been interfered with in the past by the previous Exploration Licences granted over the land the subject of the proposed licences.  The evidence of Mr Riley suggests very strongly that the hunting and foraging is an occasional activity only.  Support for that conclusion can be found in his affidavits, in which he is specific only as to going out on ‘that country’ hunting and foraging ‘last year’ with his wife Ivy Riley, Mr and Mrs Bindi Martin and Johnny Benson in Bindi Martin’s Toyota.  The evidence of Mr Foster speaks of hunting and foraging on ‘that country near’ the proposed licences.  He refers to sacred sites ‘out there’ and of a place ‘Jimamalkiri’ which is not in close proximity to either proposed licence (see para [16] hereof).  He also speaks of ceremonies but does not suggest they are held on or in close proximity to either ELA.  Indeed, like Mr Riley, he gives no evidence where they are held.  The evidence does however, in my view, make clear that the activities of hunting and foraging are carried out over a much wider area than that the subject of the proposed licences and without reliance on the land the subject thereof.  I am satisfied that there is no evidence to lead to a conclusion that the grant of either proposed licence is likely to interfere directly with the carrying on of the communal or social activities of the holders of the native title in respect of the land concerned.

Section 237 (b)
[15]  The objectors contentions allege that relevant sites of particular significance in respect of each ELA said to be identified in the evidence of Dick Foster and Angus Riley are, 1) Jankarti, 2) Rain Dreaming track, 3) Japurla Japurla and 4) Jimamalkiri.  In respect of the ‘Rain Dreaming track’ the contentions refer to the Muckarty Land Claim Report made under the Aboriginal Lands Rights (Northern Territory) Act 1976 in which, in paragraphs 4.5.1 – 4.5.4, the Commissioner speaks of the rain dreaming as the principal dreaming of the Ngapa group and describes where it ‘travels’, referring to its originating site and then from named site to named site.  He points out that in places it shares with other dreamings and that its sites are sometimes intermingled with, and sometimes shared, with other dreamings.  Its southernmost site is said in the report to be shared with Japurla Japurla and others.  It is clear that the report does not find or speak of the travel of the dreaming as a ‘track’, or as a sacred site within the meaning of the Sacred Sites Act or otherwise, but rather that, on the ground, there are sites associated with the dreaming.  It is the evidence of Angus Riley that ‘we follow all those dreaming sites for ceremonies’.  Neither Mr Riley nor Mr Foster speak of a ‘Rain Dreaming track’.  That expression appears only in the contentions.  In respect of ELA 9975,  Mr Foster’s evidence is that the rain dreaming ‘goes over that ELA’ and in respect of ELA 9998, that it goes ‘near’ the ELA.  That evidence, in my opinion, does not translate to a Rain Dreaming track.

[16] None of the other places (Jankarti, Japurla Japurla and Jimamalkari) are on or in such close proximity to either proposed licence has to be likely to be interfered with, even assuming that any of them have a relevant particular significance. Jankarti (AAPA reference 5661.21) is approximately 4 kilometers west of ELA 9998 and considerably further from ELA 9975. Jimamalkari (AAPA reference 5661.23) is approximately 15 kilometers from ELA 9975 and approximately 9 kilometers from ELA 9998. The location of Japurla Japurla is not the subject of any evidence save that it is said to go from Wave Hill (not identified) come east and go west of ELA 9975. The AAPA and Government maps in evidence each identify the location of Jankarti and Jimamalkari. I am satisfied on the evidence that the grant of either or both proposed licences is not likely to interfere with any area or site that is of particular significance within the meaning of s 237(b) of the Act.

[17]  As I pointed out in DO01/40 and 41 Hazelbane and Ors/Northern Territory/Johnston determined 27 March 2001 at paragraph [11], s 237(b) is concerned with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title in respect of the land or waters concerned, and that the expression ‘particular significance’ necessarily excludes areas and sites that may be significant to those persons but do not have the characteristic of a ‘particular significance’ within the meaning of the section. The existence of that characteristic cannot be determined simply by the recording or registration of a site under the Sacred Sites Act.  Nor is an alleged relevant site excluded from consideration because it is not recorded or registered under that Act.  The subsection is concerned with the likelihood of interference to a relevant area or site.  This requires evidence of the existence of the claimed area or site, including identification of its location and evidence of its relevant particular significance, ie: that it has special or more than ordinary significance to the native title holders, in accordance with their traditions.  In the absence of that evidence there can be no determination of likelihood of interference.

Section 237(c)

[18] The evidence of Mr Riley and Mr Foster speaks of concern for ‘the country’ as a whole, with emphasis on sacred sites, if the mining company ‘goes out there’.  Mr Foster also expresses concern ‘if the country is damaged’ and as to the possibility of sacred sites being drilled.  In the context of their respective affidavits read as a whole I find each such deponent is speaking of the whole of ‘the country’ referred to in their affidavits and that the major concern is that unless mining companies speak with them the sacred sites may be damaged.  Neither of them speak or refer in any way to damage or disturbance to the land arising out of the operations under previous Exploration Licences over the lands the subject of the proposed licences, nor of any concern as to those past operations.  As previously mentioned and with complete acceptance and every respect for the qualifications of both Mr Stead and Mr Foy, the evidence contained in their affidavits and transcript does not assist in this matter.

In Hazelbane and Ors/Northern Territory/Johnston (supra) I drew attention in some, but not exhaustive, detail to the legislative regime in the Northern Territory which controls the exercise of rights granted under Exploration Licences. That legislative regime is found in the provisions of the Mining Act (NT), the Mining Management Act (NT) and, if the issue of likelihood of major disturbance relates to areas or sites of relevant particular significance, the Northern Territory Aboriginal Sacred Sites Act (the Sacred Sites Act).  On the evidence that is not this case.  I do not propose in these reasons to repeat my observations as to the effect of and the controls which exist by reason of that legislative regime and instead refer to and adopt my comments and findings set out in Hazelbane at paragraphs [13] to [16] inclusive. I further draw attention to the provisions of s 166(A) of the Mining Act (not specifically referred to in Hazelbane) which provides as follows:

166A.  Where acts may be done subject to conditions

(1)Where under this Act an act may be done in relation to land in respect of which native title rights and interests exist or may exist subject to conditions relating to those rights and interests being complied with by the parties, the conditions have effect and may be enforced as if they were terms of a contract among the parties.

(2)If a person lodges a native title objection to the doing of the act, any other person in the native title claim group concerned is taken to be a part for the purposes of subsection (1)

[19]  I also adopt the reasoning and findings of Member Sosso in Moses Silver and Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13: 1 February 2002, save to the extent that they make no reference to the Mining Amendment Act No. 44 of 2001 (the Amendment Act) or the Mining Management Act No. 43 of 2001 (the Management Act) which came into operation on the 1 January 2002.  I agree with such reasons and findings however, as to the Mining Act as it stood prior to the coming into operation of those Statutes.  The Amendment Act repealed s 166(1)(a) of the Mining Act and inserted in s 161(1A).  That last mentioned section makes it a condition of an Exploration Licence granted subsequent to 1 January 2002 that the grantee must hold an authorisation under s 36 of the Management Act before carrying out on the licence area any exploration, operations or works involving substantial disturbance.  The Management Act (to which I have referred in more detail in Hazelbane at para [13]) provides that to obtain such authorisation the grantee must provide a Mine Management Plan (s 35) in respect of its proposed mining activity (defined in s 4) and the authorisation is conditioned by a requirement that the operator must comply with that plan and such other conditions as the Minister may impose (s 37).  There is power to vary or revoke an authorisation (s 38) and provision for penalties for failure to comply with the same (s 39).  S 40 sets out the information and documents to be included in a Mining Management Plan.  S 41 and s 42 are also relevant to and impose further obligations on the operator relevant to the Mining Plan.   S 43 and s 44 deal with the purposes of, and the procedure to claim upon, a security which the Minister may require to be given as a condition of the authorisation, including securing the obligation to comply with the Act and the authorisation.  In my opinion the provisions of the Amendment Act have significantly added to the strength of the Northern Territory’s already strong legal regime for the management of mining exploration which, as Member Sosso says at paragraph [156] in Moses Silver (supra), is ‘well advanced, integrated, proactive’ and ‘pays significant regard to the native title rights and interests of traditional owners which, to a very large degree has succeeded in dove tailing native title considerations into the fabric of the decision making process’. 

Relevant also to the issues which arise under s 237(c) is the evidence that not many people live in ‘that country near the ELA’ and are ‘all in town’ (affidavit of Dick Foster affirmed 28 October 2001 paragraphs 7 and 8); the distance from the proposed licences of the location of any Aboriginal community; the absence of any site of relevant particular significance on either proposed ELA; the extensive area on which the hunting and foraging is carried out; the previous Exploration Licences granted over the land the subject of the two proposed licences and the absence of any evidence of interference therefrom; that the proposed licences are each on pastoral lease land and so subject to rights of the lease-holder which have impact on the objectors’ use of the same; and the presumption that the grantees will comply with the law and the conditions attached to the Exploration Licences and authorisations.

[20]  Applying the meaning given by the Full Court of the Federal Court in Dann V WA (1997) 74 FCR 391:144 ALR 1, and taking into account the evidence as to the views and concerns of the objectors, the evidence contained in the materials provided to the Tribunal by the parties and the other circumstances to which I have referred, I am satisfied that, considering the matter from the view point of the Australian community generally, the grant of the two proposed licences is not likely to involve major disturbance to any land or water concerned or to create rights whose exercise is likely to involve any such major disturbance.

DETERMINATION

The determination of the Tribunal is that the grant of each of Exploration Licences 9975 and 9998 is an act attracting the Expedited Procedure.

……………………………………….

Hon EM Franklyn QC

Deputy President