Archie Allen & Ors for the Kunapa/Kurtinja/Mangirriji/Jalajirrpa, Yapa Yapa & Pirrtangu Peoples/Northern Territory/Neil Scriven

[2002] NNTTA 146

NATIONAL NATIVE TITLE TRIBUNAL

Archie Allen & Ors for the Kunapa/Kurtinja/Mangirriji/Jalajirrpa, Yapa Yapa & Pirrtangu Peoples/Northern Territory/Neil Scriven, [2002] NNTTA 146 (22 July 2002)  

Application No.:  DO01/75 (EL22428)

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

Archie Allen & Ors for the Kunapa/Kurtinja/Mangirriji/Jalajirrpa, Yapa Yapa & Pirrtangu Peoples (Native Title Party)

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Northern Territory Government (Government Party)

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Neil Scriven (Grantee Party)

DETERMINATION THAT THE ACT ATTRACTS THE EXPEDITED PROCEDURE

Tribunal:       Deputy President The Hon EM Franklyn QC
Place:             Perth
Date:              22 July 2002

Catchwords:  Native Title – future act, - proposed grant of exploration licence – expedited procedure objection – evidence does not support objection – objection dismissed

Legislation:     Native Title Act 1993
  Aboriginal Land Rights Act 1976
Mining Management Act 2001
  Mining Amendment Act 2001
Mining Act (NT) 1980

Land Rights Act

Sacred Sites Act

Cases:  Hazelbane and Ors/Northern Territory/Johnston (DO01/40 & DO01/41) 27 March 2002

Riley and Ors/Northern Territory/Johnston and Sakurai (DO01/70 & DO01/71) 17 April 2002

Rory and Dixon /Northern Territory/Ashton Mining NL (DO110 & DO/111) 10 May 2002

Moses Silver and Ors/Ashton Exploration Australia Pty Ltd/Northern Territory (DO01/13) 1 February 2002

Government Party:     Matthew Storey for Solicitor for Northern Territory

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

Grantee Party:           Neil Scriven

REASONS FOR DETERMINATION – DO01/75

Background

1. On or about 2 May 2001 the Government party issued a notice under s29 of the Native Title Act 1993 (the Act) that it intended to grant to Neil Scriven (the grantee) exploration licence 22428 (the ELA) comprising 146.4 square kms (on Banka Banka Station) in the Brunchilly locality and that it considered such grant to be an act attracting the expedited procedure as defined in s237 of the Act.

1. On 5 September 2001 Archie Allen and Others on behalf of the Kunapa, Kurtinja, Mangirriji, Jalajirrpa, Yapayapa and Pirrtangu Peoples, the registered native title claimants (DC01/5: D6005/01) in respect of the land the subject of the proposed grant, (hereafter referred to as “the objectors”), lodged an expedited procedure objection application to the proposed grant on the grounds that it does not meet any of the criteria prescribed by s237 of the Act.

1. Directions were made on 7 September 2001 dealing with the manner in which the inquiry in respect of the expedited procedure objection application would be conducted, setting, interalia, a time frame for lodgment of contentions, relevant documents and statements of evidence by the parties.  Such time frame was subsequently varied on more than one occasion at the request of the parties to enable negotiations for agreement to continue and because of climatic conditions.

1. The parties have agreed that this matter should be dealt with on the papers and I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering, without holding a hearing, the documents and other material lodged with or provided to the Tribunal.

Government Party Material

1. Material produced by the Government party reveals there to be no Aboriginal community located within the land the subject of ELA, the nearest community being that at Kalumpurpla approximately 27kms away with a population of fifteen people; that there is one recorded sacred site within it and seventeen within the general vicinity, the nearest of which is between 3 and 4kms from its western boundary; that over the period 1992 to 1998 all but a relatively small area of the ELA was the subject at some time of granted exploration licenses being respectively ELS9570, 7948, 9025 and 9327, the boundaries of which extended beyond those of the ELA; that EL9570 was operative from September 1996 to November 1997, EL7948 from December 1992 to July 1998, EL9025 from June 1995 to May 1998 and EL9327 from May 1996 to November 1997 and that over the period 1982 to 1993 portions of the ELA were the subject at different times of exploration licenses 6401and 4800, the boundaries of EL6401 extending over and beyond the ELA boundaries and the boundaries of the ELA being partially common with the boundaries of granted exploration licenses EL4802 and EL3607.

Objectors Material

1. The material produced by the objectors in support of their objection comprises an affidavit of Archie Allen affirmed 30 October 2001; extracts from 1997 the Muckaty Pastoral Lease Land Claim Report pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 dated 1997 (the Land Claim Report); two documents respectively entitled ‘Rights Conferred Under an Exploration Licence’ and ‘Analysis of Legislation, dealing with significant areas of sites’, both said to be in the nature of contentions, the author of them being Mr Angus Frith, counsel for the objectors; a document entitled “Exploration Activities” annexed to an affidavit of Mark Fredreck Foy (Mr Foy) affirmed 14 December 2001; an affidavit of Jeffery John Wilson Stead (Mr Stead) affirmed 8 October 2001; a copy transcript of the evidence given at the joint hearing of expedited procedure objection applications DO01/11, 01/12, 01/17, 01/18 and 01/43 by Mr Foy on the 4 December 2001 and Mr Stead on the 3 December 2001; a document entitled ‘Generic Issues to be dealt with’, containing a statement of issues set out by Member Sosso in another inquiry, dated 16 November, 2001 the objectors responses to the some thereof, and material from the Register of Sacred Sites provided by the Aboriginal Areas Protection Authority (the AAPA).

1. I refer now to the affidavit of Archie Allen relied on by the objectors.  Mr Allen is one of the objectors in native title determination claim registered 28 February 2001 number DC01/5 in which he is described as a member of the “apical Kunapa/Kurtinja/Mangirrigi People’.  He deposes that he lives at Tennant Creek (some 90kms from the ELA) and was born and grew up on Alroy Downs station where he worked for at least twenty years.  There is no evidence of the location of that station.  He identifies himself as “Waramungu” which the Land Claim Report describes as a “language group”, being one of several language groups advanced as being the traditional owners claiming the land the subject of that Report.  That Report refers, without further detail, to Mr Allen giving evidence relevant to the eastern extension of the country of the Milwayi people and comments that he “is not a claimant”, but has country associated with “goanna plains dreaming” further east than the eastern boundary of the claim area the subject to the Report.  Mr Allen deposes to seeing a ‘map of the ELA’ and that ‘my country is in that area’.  With his affidavit is a map signed by him and the Commissioner for Oaths who took his affirmation on 30 October 2001.  It shows the ELA and a large area of land to the east and west and a lesser area to the north and south.  It has printed on it in ink certain names of the places referred to by Mr Allen in his affidavit, presumably to identify their respective locations.  The affidavit does not purport to annex the map.  There is no explanation as to who printed the names on the map, when it was done or the basis for doing so.  Mr Allen’s signature on the affidavit and the map is a printed signature but vastly different to the printing of the names on the map.  A comparison of his signature and the printing on the map leads to the conclusion that it is most improbable that such printing is his.  He says that he used to work around the area of the ELA, riding a horse, when he worked on Banka Banka Station between 1961 and 1985.  That before coming to Banka he used to work at Alroy and Rockhampton Downs and that after leaving Banka he ‘came to Anyinginyi congress doing garden work’, the location of which is not identified.  He gives no other evidence of being on or in the vicinity of the ELA, save that he says that two years ago he was at Yalkawarra, which he describes as a round rock hole.  He testifies that Yalkawarra is close to the ELA “just to the west, top half” and is a “Wild dog dreaming name”.  He says that he learned about the country from ‘the old fellows’ and his elder brother.  He refers to numerous places connected, it would seem, with that dreaming.  The description given by him in his affidavit is not easy to follow or understand however he deposes clearly that Purrtu Waterhole is near the ELA, Manangurra on Lua Creek is west of the ELA and that Langanyiningka near Carmilly bore, Kunapurlu and Ngungulmanja (this last, he says, being the proper name for Carmilly) are each on the ELA.  The names Yalkawarra, Purrtu, Purrtu Creek, Manangurra, Langanyingka, Kunapurlu and Ngungulmanja are the names printed in ink onto the map to which I have earlier referred, with arrows pointing (presumably) to their alleged location thereon, which indicate that Langanyiningka, Kunapurlu and Ngunaulmanja are on the ELA.  Mr Allen does not depose to being authorised by the Native Title Claim groups to speak on their behalf, but the Government Party’s contentions refer to his affidavit in support of the Native Title claim in which he deposed to being authorised to “make the application and to deal with matters arising in relation to it.”

1. Mr Allen deposes that “for Yalkawarra we do the ceremony every year.  Sometime we do it here, in Tennant Creek, and we can do it at Morphett Creek, Banka Banka, Elliott, the main place at Marlinja.  During ceremony we sing half and half with Elliott mob.  Yalkawarra is big business, you’ve got to sing for two weeks or even longer.  Sometimes that Yalkawarra business, from Likabarta, can go for a month.  My dreaming goes from Likabarta.”  He speaks of calling the names for the dreaming which include those to which I have referred as being marked on the map.  He does not testify that the ceremony requires those taking part to be present at each or any of those sites and it seems clear from his affidavit that the singing is conducted from one or other of the various places for “doing” the ceremony that he has mentioned, in respect of each of the places named by him but without physical attendance thereon.

1. Whilst the affidavit of Mr Allen is to some extent difficult to follow and understand, I am satisfied that it identifies sites on the ELA which are integral to the annual ceremony relating to the Wild Dog dreaming which embraces the sites identified by him as being on the ELA as well as other sites named by him.  The information as to sites provided by the Aboriginal Area Protection Authority reveals only one recorded site on the ELA, it being named therein as “Garmilly”, described as “Carmilly Springs to the north-northeast from Banka Banka” and numbered 5760-7.  Mr Allen deposes to Carmilly Springs as being one of the sites on the ELA, the subject of the dreaming ceremony and that its proper name is “Ngungulmanja”.  The markings on the map produced with his affidavit would appear to locate it on the same site as that numbered 5760-7 (“Garmilly”) in the information provided by the AAPA.  It seems probable that the name difference results from the AAPA information being received from a different language group to that to which Mr Allen belongs and that the names’ “Garmilly” and “Ngungulmanja” refer to the same site.  Applying Mr Allen’s description of the location of sites on the ELA to the map referred to in the affidavit they are all within the northern  segment of the ELA on which are situated Carmilly Bore and Carmilly Springs (identified in the map as published), and in close proximity to each other.

Conclusions

1. I am satisfied on the evidence that Kunapurlu, Ngungulmanja and Langanyiningka are each sites of relevant particular significance situated on the ELA area which are “sung” at the annual ceremony referred to by Mr Allen.  There is no evidence however that the ceremony involves attendance or other activity by the Native Title claimant group or any thereof at each or any of those sites for the purpose of its singing and it is not suggested by Mr Allen that it does.  I find that there is no evidence of any community or social activity of the holders of Native Title in relation to the land or waters the subject of the ELA disclosed by the evidence of Mr Allen.  It is not found in his evidence in paragraphs [7], [8], [12], and [13] as contended by the objectors.

1. I find the Land Claim Report and the extracts therefrom to which I am specifically referred also to provide no evidence of any community or social activity within the meaning of s237(a) of the Act on or in the vicinity of the ELA area.  The right to forage found to exist in that report is not found in respect of the ELA and is not evidence of the exercise of such a right or of any past, current or recent community or social activity on or in respect of the ELA by the holders of Native Title in respect thereof.  Nor does the Report provide evidence of the existence of sites of particular significance within the meaning of s237(b) of the Act in accordance with their traditions to the holders of native title in respect of the ELA.

1. I find the material prepared by Mr Frith and Mr Foy and the affidavits and transcript of evidence of Mr Foy and Mr Stead also to have virtually no evidentiary value. The same material was advanced by the Native Title party to the proceedings in expedited procedure objection applications DO01/40 and DO01/41 (jointly dealt with in a determination dated 27 March 2002), DO01/70 and DO01/71 (jointly dealt with in a determination date 17 April 2002) and in DO01/110 and DO01/111 (jointly dealt with in a determination 10 May 2002). I refer to my conclusions in respect thereof at paragraph [10] of the reasons in DO01/70 and DO01/71, paragraphs [9(c), (d)], [11] and [12] of the reasons in DO01/40 and DO01/41 and paragraphs [12] and [13] of the reasons in DO01/110 and DO01/111. In short the evidence and material from Mr Foy, Mr Stead and Mr Frith relied on by the objectors do not address the issues raised by s237(a), (b), (c) of the Act with sufficient particularity to lead to a conclusion in respect of any thereof one way or another.  The evidence and material in each case is of a general nature and in particular, does not take into account the effect of the Mining Management Act 2001, and the Mining Act 1980 as amended by the Mining Act Amendment Act (44) 2001.

1. The Government party relies upon the legislative regime in place in the Northern Territory and in particular the provisions of the Mining Management Act 2001 and its regulations and the Mining Act 1980 as amended by the Mining Amendment Act 2001 and contends that, having regard to those provisions, the grant of the ELA is not likely to interfere with any site or area of particular significance in accordance with their traditions to the persons who are the holders of Native Title in relation to the lands or waters concerned (the Act s237(b)) and is not likely to involve major disturbance or create rights of the nature referred to s237(c) of the Act.  I do not here set out those legislative provisions.  They have been dealt with sufficiently in my reasons for determination in DO01/40, DO01/41, at paragraphs [13] – [16] inclusive, and DO01/70 and DO01/71, at paragraphs [18] and [19] and I refer the parties thereto.  I do, however, subsequently herein make reference to a number of the relevant sections of those Statutes.

1. It is of considerable significance that, despite the uncontested evidence of the grant of previous exploration licences from time to time on and adjacent to the ELA over the period 1982 to 1998, Mr Allen makes no claim or suggestion that the carrying on of the annual ceremony of which he speaks or of any other activity of the holders of native title land has been in anyway interfered with or interrupted by any operation or activity conducted under any such exploration licence.  Nor does he claim that any site or area of relevant particular significance on the ELA or elsewhere has been, to any extent, interfered with or is likely to be interfered with by the grant.  Nor does he suggest that any such previous grant has involved major disturbance or indeed any disturbance to the ELA land or created rights the exercise of which did or is likely to involve major disturbance thereto within the meaning of s237(c) of the Act.  The meaning to be given to the expression ‘major disturbance’ as used in that sub-section and the matters to be taken into account in assessing the degree of disturbance are set out in the judgments of the Full Court of the Federal Court in Dann v Western Australia (1997) (74 FCR 391; 144 ALR1) to which I have referred in some detail in my reasons for determination in DO01/40 and 01/41 at paragraph [15].  It is not necessary that I repeat them here.

1. I agree with the conclusion of member Sosso in Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory (DO01/13: 1 February 2002) at paragraph [95] that the definition of the expression ‘sacred site’ in the Northern Territory Aboriginal Sacred Sites Act (The Sacred Sites Act) and the Aboriginal Land Rights (Northern Territory) Act (The Land Rights Act) includes sites of particular significance within the meaning of section 237(b) of the Act and that the protective provisions of those Acts apply whether or not such a site is registered or recorded under the Secret Sites Act.  Those acts, together with the Mining Act (NT) 1980 amended by the Mining Act Amendment Act (2001), provide the legislative regime applying to exploration and mining activities in the Northern Territory.  In DO01/40 and 01/41 at paragraphs [13] and [14] I summarised the effect of those Acts in respect of the grant of exploration licences and in DO01/70 and 01/71 at paragraphs [18] and [19] elaborated thereon.  The concern of the legislature to prevent major disturbance to lands the subject of a native title claim and for the protection of Aboriginal sites and objects and the rights and interests of Aboriginal people is evident throughout the provisions of those Acts.

1. I draw attention in particular to the provisions of ss35, 37, 39 of the Mining Management Act; to the conditions set out in s24(b), (e), (j), (k) of the Mining Act directed to the minimisation of disturbance of exploration licence land, of interference with the lawful activities and rights of others and with the protection of, and prevention of interference with, Aboriginal sites and objects.  I refer also to the conditions approved by the Minister under s24A of the Mining Act, a copy of which forms part of the material provided by the government party in these proceedings, and in particular to conditions 1, 2, 3, 4, 12, 17, 18 and 20 thereof, which are directed to ensuring consultation with registered native title claimants prior to commencing exploration activities, to the minimisation of impact on native title rights and interests in the licence area and interference of the nature referred to in s237(a), (b), (c) of the Act.  I refer also to s166A of the Mining Act which provides that conditions imposed on a grant relating to land the subject of native title rights and interests may be enforced by the parties as a term of a contract between them; to s166(1A) which requires relevant authorisation before carrying out exploration operations or work involving substantial disturbance and to s171 which makes provision for cancellation of a licence for breach of a condition.  I draw attention to the provisions of ss33, 34, 35 and 37 of the Sacred Sites Act which provide penalties for unauthorised entry onto, working on, use or desecration of a sacred site, and for damage or distress to a custodian of a sacred site arising out of failure to comply with the certificate authorising work on or use of land.  I also refer to s69 of the Land Rights Act which makes it an offence to enter or remain on an Aboriginal site without lawful authority.

1. Having regard (1) to lack of evidence as to the carrying out of any community or social activity on or in the vicinity of the ELA land by the holders of native title; (2) to the evidence that the annual singing ceremony of which Mr Allen speaks, to the extent that it involves sites of particular significance on or in the vicinity of the ELA, has continued without disturbance or interference thereto or any suggestion thereof, despite the existence of previous exploration licences granted over and adjacent to that land over the period 1982 to 1998; (3) to the legislative regime in force to protect sacred sites and sites of relevant particular significance, and (4) applying the presumption of regularity, I conclude that the grant of the ELA is (a) not likely to interfere directly with the carrying on of the community or social activities of the persons who are holders of native title in relation to the land or waters concerned (b) is not likely to interfere with areas or of sites of particular significance in accordance with their traditions to the persons who are the holders of native title in relation to such lands or waters, and (c) is not likely to involve major disturbance to any such land or waters or to create rights whose exercise is likely to involve major disturbance to any such land or waters.

1. Determination:
   It is the Tribunal’s determination that the grant of exploration licence 22428 is an act which attracts the expedited procedure.

The Hon. E.M Franklyn QC
Deputy President