Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster/Biddlecombe Pty Ltd/Northern Territory

[2002] NNTTA 129

NATIONAL NATIVE TITLE TRIBUNAL

Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster/Biddlecombe Pty Ltd/Northern Territory, [2002] NNTTA 129 (4 July 2002)

APPLICATION NO:  DO 01/112

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

Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster (Native Title Party)

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Biddlecombe Pty Ltd (Grantee Party)

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Northern Territory of Australia (Government Party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:   John Sosso
Place:        Brisbane
Date:         4 July 2002

Hearing dates:  9 April 2002

Government Party:             Matthew Storey, Solicitor for the Northern Territory

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

Grantee Party:  Mr Ross McColl

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – no registered or recorded sites – previous exploration/mining activity – legal principles – no evidence of community or social activities – no areas and sites of particular significance – no evidence of prior disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.

Legislation:                 Acts Interpretation Act 1902 (Cth) s 36

Native Title Act 1993 (Cth) ss 29, 32, 151, 237

Cases:Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002

Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002

Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002

REASONS FOR DETERMINATION

Background

[1] On 27 June 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 10120  (“the proposed tenement”) to Biddlecombe Pty Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.

[2] The proposed tenement covers an area of 4 blocks (approximately 11 square kilometres) and is located wholly within Perpetual Pastoral Lease 903, which is known as “Douglas”.

[3] On 13 March 2001 a native title determination application was filed with the Federal Court (D6023/01). The name given to this application is “Douglas North”, and the Applicants are Mr Arthur Que Noy, Mr Gabriel Hazelbane, Mr Paddy Huddleston & Ms Marjorie Foster.  The application was entered on the Register of Native Title Claims on 25 October 2001. The Douglas North application covers a very small portion of the proposed tenement near the north west border.

[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 29 October 2001. Technically this was more than four months after the section 29(4) notification day of 27 June 2001 (section 32(3)), however 27 October 2001 was a Saturday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1902 (Cth) which provides:

“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”

The named Objectors, Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster, are also the Applicants named above.

[5] On 5 November 2001 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. On 8 November 2001 I issued Directions for the conduct of the Inquiry and the various contentions made by the parties have been pursuant to those Directions.  A listings hearing was convened on 9 April 2002 and on that date I made further Directions for the supply of material in this inquiry.

[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. 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, I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.

[7] The parties have submitted to the Tribunal extensive written contentions, which, for ease of reference, are set out below:

Government Party Contentions

Statement of Contentions of Government Party (“GPSC’) dated 19 March 2002.

Contentions in Reply (“GPCR”) dated 22 April 2002.

Native Title Party Contentions

Statement of Contentions of Objectors (“OSC”) dated 22 March 2002.

Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 8 April 2002.

Objectors’ Reply to the Contentions of the Grantee Party ( (“OCRGr”) dated 8 April 2002.

Grantee Party Contentions

Statement of Contentions of Grantee Party (“Gr1”) dated 3 April 2002.

Grantee’s Reply to Contentions of Objector (“Gr2”) dated 19 April 2002

Evidence

Affidavit of Tony Kenyon Luwanbi

[8] The native title party lodged the Affidavit of Tony Kenyon Luwanbi which was affirmed before Jamie Wright, a Commissioner for Oaths, on 11 April 2002.  The Affidavit is set out below:

“1.  I am a member of the native title claim group in the Douglas North native title determination application (DC 01/23).  I am Warai.

2.   I live at Waruk, near Humpty Doo in the Northern Territory.  I have lived there for over 20 years.

3.   The area of the application includes the area of ELA 10120.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “TKL 10321” is a map of the ELA and the surrounding area.  Marked on it are some of the places referred to in this affidavit.

4.   The north western flat part of the ELA is Warai country.  I can speak for that country.  The hilly country in the south east of the ELA area is Wagiman country.  I can’t speak for that part of the ELA.

5.   In the old times, Warai used to hunt in the flat country, but not any more.  It is too far to go these days.

6.   There are no sites in the flat country on this ELA, or adjacent to it.  Warai and Wagiman used to have ceremony together sometimes in the past, on each other’s country in company.  But this did not occur near this ELA.

7.   I worry that big floods in the wet might wash material into the flat country and the watercourses and the Margaret River, if there is exploration or mining.  I am concerned about the impact on fish and turtle in the creeks and rivers.

8.   The exploration company might mess up our country and all the creeks.  They should talk to us before they go anywhere.”

Aboriginal Communities

[9] There are no Aboriginal communities situated on, or in close proximity, to the proposed tenement. The native title party suggests (OSC at para 39)  that there are several communities in the vicinity of the licence area and names Pine Creek Town Camp, Kybrook Farm, Douglas and Hayes Creek communities and Ban Ban Springs. However, as the government party points out (GPSC at para 8), Pine Creek Town Camp is 44 km to the south-east, Kybrook Farm 47 km to the south-east, Douglas is 15 km south-west, Hayes Creek is 10 km south-west and Ban Ban Springs is 13 km north of the proposed tenement. In short, there are no Aboriginal communities within a 10 km radius of the boundary of the proposed tenement.

Recorded or Registered Sites

[10] There are no recorded or registered sites within the boundary of the proposed tenement or immediately adjacent to it.

Previous Exploration Activity

[11] The area of the proposed tenement has been the subject of numerous exploration and mining grants by the Northern Territory dating back to 1973 (some 29 years).  Outlined below are details of previous mining and exploration tenements as supplied by the government party:

Dredging Claim B  –             DC179B, DC181B, DC247-250B

Gold Mining Lease B –         GML200-201B, GML206B

Exploration Licence –           EL 615, 4010, 4219, 4415, 4854, 5043, 5343, 6029, 6629, 6645, 7386, 7478, 7480, 7539, 7561, 7895, 8130, 8476, 9126, 9448

Mineral Claim (Northern) –   MCN 261-264, 623-624, 725, 727, 900, 1029, 1333, 1339-     1341, 1343-1344, 1346-1347, 1349, 2200

Mineral Lease B -                 ML 1300B, 1301B, 1346B, 1349B

Mineral Lease (Northern) -    MLN 840, 846

[12] Current Mining Tenements covering the same area are as follows:

Mineral Lease Northern -      MLN 214, 341, 824-829, 831-832, 861-863

[13] It would also appear that, not only has the proposed tenement been subject to numerous exploration and mining grants, but in addition, the area has been extensively explored and mined. Previous exploration activity has included costean sampling, pit sampling, rock chip sampling, soil sampling, vacuum drilling, reverse circulation drilling and rotary airblast drilling.  Mapping produced by the government party also indicates that while most areas of the tenement have been subject to exploration activity, the majority of this has occurred in the southern and south-eastern portions, as well as in the extreme north. The proposed tenement also contains two abandoned mines: Princess Louise and Radfords Blow, which appear to have been gold mines. These two abandoned mines are located in the eastern section of the subject area. The Princess Louise mine operated between 1872 and 1891 and Radfords Blow in 1900.

Nature of the Proposed Exploration Activity

[14] In the Application for the Grant of an Exploration Licence the grantee party supplied the following information on the proposed work program for the first year:

“Re-assess previous data.

Aerial photo interpretation for alluvial channels etc

Costean of targets

Assay”

[15] In addition the grantee party indicated that the exploration program for subsequent years would be as follows: “The adjacent land to the ‘Priscilla Line’ to be surveyed for the site of an alluvial gold project, this is to ensure that the site does not interfere with any future hard rock deposits on the Priscilla Line. Whilst the Priscilla Line seems to be the main gold bearing structure in the application area other targets generated will be costeaned and drilled.”

[16] This information was confirmed by the grantee party in its Contentions where it was said:

“Biddlecombe’s initial work on this area will comprise non-intrusive activities such as data research and aerial photo interpretation.  Should encouraging results be obtained, follow-up costeaning and drilling would most likely be carried out.  This follow up costeaning and drilling will require an Authorisation under the Mining Management Act from the Minister for Business, Industry and Resource Development prior to it being carried out.”

Expert Evidence Adduced by the native title party

[17] In addition to the Affidavit of Mr Luwanbi the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy, the transcripts of evidence given by Messrs Stead and Foy to Member Stuckey-Clarke in December 2001 and the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.

[18] I have considered all of this material in a number of inquiries, and for the purposes of this inquiry I adopt my comments at paragraph 23 of Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002. So far as is relevant, I also adopt the analysis and comments of Deputy President Franklyn in Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].

Legal Principles

[19] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.

[20] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:

“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.”

Section 237(a) – Interference with the carrying on of community or social activities

[21] Mr Luwanbi deposes that he can only speak for the north-western portion of the proposed tenement that comprises flat country. Relevantly he says that while in “the old times” the Warai People used to hunt in the flat country they do “not any more. It is too far to go these days.” In short the tenor of Mr Luwanbi’s evidence is that while social and community activities occurred in the past, this area is no longer used by the Warai People for hunting.

[22] The native title party contended that there is an active community life in relation to the land (OSC at para 38). If there is such an active community life, then no evidence of its existence was presented to this inquiry.

[23] The evidence of community and social activities by the native title claim group on the proposed tenement is limited to Mr Luwanbi’s Affidavit. A reading of this brief document highlights that no such activities have been carried on in this general area for many years. It would not be sensible to discuss the evidence of previous and ongoing mining activity on the proposed tenement and the absence of any evidence that this has interrupted community and social activities or of the likelihood of interference with areas or sites of cultural importance, as there is no primary material that would enable such an exercise to be carried out.

[24] It is a condition precedent for conducting a section 237(a) inquiry that the native title party produces some contemporary evidence of community or social activities. Here no such evidence has been produced, and, accordingly, I am unable to find that there are social or community activities conducted by native title holders on the proposed tenement. No issue of conducting a predictive assessment of the likelihood of interference pursuant to section 237(a) arises due to the absence of evidence of relevant contemporary activities.

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

[25] Mr Luwanbi specifically states that there are “no sites in the flat country on this ELA, or adjacent to it.” Moreover he indicates that while the Warai and Wagiman People used to have ceremonies together in the past, this did not occur near the proposed tenement.

[26] The native title party made no submissions on section 237(b), and accordingly:

(a)there are no sites recorded/registered by the AAPA on the proposed tenement;

(b)the only native title holder to give evidence denies that there are any sites on the proposed tenement; and

(c)the native title party made no submissions at all on section 237(b).

[27] The government party contended (GPCR at para 83): “There is, therefore, no evidence before the tribunal of sites of particular significance in or adjacent to the proposed licence area, let alone interference with those sites.” The Tribunal agrees with this submission. This is not even an instance of a native title party asserting that there are sites without identifying them. This is an instance of a native title party making no submissions on the issue of areas or sites of particular significance and lodging an Affidavit from a native title holder who specifically denies that there are any sites on the proposed tenement. Obviously in these circumstances there is no basis for conducting a section 237(b) inquiry.

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

[28] It is clear that this general area has been subject to extensive mining and exploration activity for many years. As the government party highlighted there are even two abandoned mines on the proposed licence area (GPCR  at para 56).

[29] Mr Luwanbi expresses concern that floods may wash exploration and mining material into the flat country, the watercourses and the Margaret River, having a consequent impact on fish and turtles. He is also concerned that explorers might “mess up” the country and creeks and that they should talk with the native title holders before going anywhere.

[30] The government party contends that there is no evidence before the Tribunal of any of the previous exploration and mining activity causing interference or disturbance, and that, in any event, the regulatory regime in force requires a pre-exploration on site meeting with explorers when any concerns of native title holders can be put.

[31] In this inquiry the material before the Tribunal discloses that:

(a)this general area has been subject to mining for many years (with two abandoned gold mines that operated in the late nineteenth century);

(b)there is no evidence of community or social activities occurring on the subject area;

(c)there is no evidence of sites of importance to native title holders on the subject area;

(d)there is no evidence that previous mining or exploration has resulted in major disturbance to the relevant land or waters;

(e)there is no evidence of any particular environmental or geological factors that would render it more likely that the proposed program of exploration activities would result in major disturbance;

(f)the proposed tenement falls wholly within a pastoral lease, and in any event the native title holders are subject to ongoing interference by the lawful activities of the pastoral holders; and

(g)the grantee party has indicated that it will give written notification to native title holders (and/or their representatives) before exploration commences and will meet with native title holders prior to commencing work to discuss the proposed work and where that work is proposed. Relevantly it is said: “This will be as requested by Tony Kenyon Luwanbi in his Affidavit dated 11 April, 2002” – Gr2 at p 2. In short not only has the grantee party highlighted its appreciation of its requirements under the regulatory regime, but specifically has evinced an intention to discuss any concerns with Mr Luwanbi and other native title holders.

[32] On the basis of the material presented to the Tribunal I am unable to find that the grant of the proposed tenement, or the exercise of rights pursuant to it, would be likely to involve major disturbance to any land or waters concerned.

Determination

The determination of the Tribunal is that the grant of Exploration Licence 10120 to Biddlecombe Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.

John Sosso

Member