Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster/Robert Michael Biddlecombe/Northern Territory
[2002] NNTTA 145
•19 July 2002
NATIONAL NATIVE TITLE TRIBUNAL
Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster/Robert Michael Biddlecombe/Northern Territory, [2002] NNTTA 145 (19 July 2002)
APPLICATION NO: DO 01/114
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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Robert Michael Biddlecombe (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: 19 July 2002
Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory
Native Title Party: 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 – registered or recorded sites – previous exploration/mining activity – legal principles – whether act interferes with community or social activities – whether act interferes with areas or 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 1901 (Cth) s 36
Mining Act (NT) s 24A
Native Title Act 1993 (Cth) ss 29, 32, 44H, 151, 237
Cases:Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sakurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002
Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002
Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002
Kathleen Parry & Ors/Troy Resources NL/Northern Territory DO01/84, unreported, Member Sosso, 24 May 2002
Marjorie Foster v Biddie Lindsay [1998] NTSC 62
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
Noy v Tapgnuk (1997) 138 FLR 205
Smith v Western Australia (2001) 108 FCR 442
Tapgnuk v Northern Land Council (1996) 132 FLR 40
Western Australia v Smith (2000) 163 FLR 32
Wik Peoples v Queensland (1996) 187 CLR 1
William Risk and Kathleen Mary Mills/McGinness/Corporate Developments Pty Ltd/Northern Territory DO01/77, unreported, Member Sosso, 15 April 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 22186 (“the proposed tenement”) to Robert Michael Biddlecombe (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 16 blocks (approximately 53 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, Mrs Marjorie Foster. The application was entered on the Register of Native Title Claims on 25 October 2001. The Douglas North application wholly covers the area of the proposed tenement.
[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 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 1901 (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 abovenamed applicants.
[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, and 28 March 2002, I issued Directions for the conduct of the inquiry, and the various contentions made by the parties have been pursuant to those Directions. A preliminary conference of the parties was convened on 26 November 2001.
[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 18 April 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 4 April 2002
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 8 April 2002
Grantee Party Contentions
Statement of Contentions of Grantee Party (“Gr1”) dated 8 April 2002
Grantee Party Reply to Contentions of Objection (“Gr2”) dated 17 April 2002
Evidence
Affidavit of Marjorie Foster
[8] The native title party lodged the Affidavit of Marjorie Foster which was affirmed before Paul Walsh, a Commissioner for Oaths, on 27 March 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 (DC01/23). I am Kamu.
2. The area of the application includes the area of ELA 22186. The ELA area is in Kamu country. I have seen a map of the area of the ELA. Now produced and shown to me marked “MF 22186” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit. Mount Shoebridge is in the middle of the ELA area.
3. My sons Michael and Barry go hunting in this area. My son, Mickey Foster, lives in a house out near Mt Thomas. Jorjor area, which my husband built when he was alive. All of us, mostly all the family, and all of my children go out there, especially Mickey and my daughter Margie Foster, who lives out at Daly. I go there too. Everybody goes, on the weekend.
4. I grew up and lived in Darwin. I was stolen generation. But after I grew up and got married, I went back there to my country. I lived for a time out there with my husband until he died. I have not been able to live out there since I got diabetes in my 60s, but I still go out with my family on weekends. I go out there most weekends. Sometimes I stay one week, two weeks at the house.
5. We go out into Kamu country and camp. We get what we can get, goose, bush tucker, goanna. The boys go through the hills; they get wood for didgeridoos, firewood and building from the ELA area. They go shooting for roo there; the roos hide up in the mountains.
6. Marion Hill is poison country; king browns live there. My son, Francis Storer, knows the country in and out. I’ve got six sons. The company should ask the boys. All them sites and things come under those boys. They go walking there. They should take the boys there to show them where they can go.
7. I worry about it, what might happen to my country. My children worry about what mining might do to the country.”
Aboriginal Communities
[9] There are no Aboriginal communities on or in close proximity to the proposed tenement. The only communities referred to by the native title party (OSC at para 39) are Douglas and Hayes Creek communities which are approximately 17 km south-east of the proposed tenement and Ban Ban Springs community which is 15 km north-east.
Recorded or Registered Sites
[10] The native title party contends (OSC at para 52) that there are eight sites recorded or registered by the AAPA “in the licence area”. However the only area or site which is mentioned by name either in the Affidavit of Marjorie Foster or in the Contentions of the native title party is Marion Hill. The government party correctly highlights (GPCR at para 68) that no information is provided as to whether Marion Hill is located on the proposed exploration licence area. While this information was not provided to the Tribunal in this inquiry, Mrs Foster deposed to the importance of Marion Hill in DO01/84. Mapping provided in that inquiry indicates that Marion Hill is located approximately 64 km south-west of the proposed tenement.
Previous Exploration Activity
[11] The area of the proposed tenement has been subject to a number of previous exploration and mining grants by the Northern Territory over the past 25 years or more. Outlined below are details of previous mining and exploration tenements as supplied by the government party:
Exploration Licence: EL 1154, 1593, 1724, 1732, 1733, 1741, 1742, 1761, 2127, 2413, 2473, 2477, 2478, 2736, 3027, 3331, 3543, 4196, 4350, 4443, 4499, 4814, 4986, 5025, 5038, 5042, 5044, 5971, 6045, 6495, 6496, 6624, 6638, 6819, 6905, 7038, 7039, 7124, 7399, 7564, 7701, 8216, 8254, 8336, 9124, 9134, 9274, 9435, 9465.
Exploration Licence (Substitution): SEL 7507
Mineral Claim (Northern): MCN 355, 604, 1623, 3206, 3207, 3208, 3209, 3210, 3211, 3212, 3213, 3214, 3215, 3340, 3341, 3477, 3479, 4004, 4012, 4013, 4014, 4015, 4016, 4017, 4018, 4019, 4364, 4365, 4366, 4367, 4368, 4369.
Licence to Treat Tailings (LTT): LTT 1/77B, 2/77B, 3/77B
[12] Existing mining tenements in the immediate vicinity of the proposed tenement are as follows:
SEL 9591 - adjoins Eastern boundary;
EL 9588 - approximately 2 km east of proposed tenement; and
EL 10421 - approximately 2 km south of proposed tenement.
[13] The government party also supplied mapping and information on actual exploration activity that has occurred on the subject area over the past two decades. It would appear that there has been extensive exploration over all parts of the proposed tenement, which included: soil sampling, stream sediment sampling, costean sampling, reverse circulation drilling, percussion drilling, diamond drilling, rotary airblast drilling, ground magnetic surveys and ground radiometric surveys.
[14] In addition, material presented to the Tribunal indicates that this general area has been the subject of intensive exploration and mining activities for more than a century. Mapping and other information supplied by the government party suggests that there are six abandoned mines on ELA 22186, the common name of each being: Jacksons, Full Hand (2), Mount Shoobridge, Barrets and Old Company. While information has not been provided on four of those mines, it would appear that Barrets was a tin mine which operated between 1891 and 1911 and that Old Company was also a tin mine which was operational between 1882 and 1893.
Nature of the Proposed Exploration Activity
[15] The grantee party in his Application for the Grant of an Exploration Licence provided this information on the proposed work program for the first year:
“Review of all previous work. Rock chip and loaming program for areas not previously covered. Area of known resource – up to date air photo cover.”
In addition, the grantee party’s reply to the question of the extent of commitment, should encouraging indicators be obtained, was as follows:
“This area is reasonably well served and has some gold resource targets at present 1.25 million ton (sic) at approx 1.5 g pr gdd. Due to the low gold price further work on these areas will be to delineate higher grade ore shoots (sic) of up to 50 – 100,000 tons that may one day be treated at a nearby plant. Much work has been completed on the area under application and a stand alone deposit seems unlikely.”
[16] Contentions were submitted on behalf of the grantee party in which it was pointed out that Mr Biddlecombe has entered into an Option to Purchase Agreement with Julia Corporation Limited (“Julia”), and that Julia would be providing the Contentions on behalf of the grantee party (Gr1 at p.1). The Contentions were lodged by McColl Exploration & Mining Title Services Pty Ltd (“McColl”) on behalf of Julia.
[17] The Contentions lodged by McColl were largely predicated on the manner in which Julia operates and its mining and exploration experience. In that regard McColl lodged a copy of a document entitled “Company Policies for Exploration” which sets out at some length the manner in which Julia operates. In normal circumstances material of this kind would be of assistance to the Tribunal.
[18] The current status of the arrangement between the grantee party and Julia is unclear. In a previous inquiry where there was an option to purchase arrangement between Julia and another grantee party, Julia informed the Stock Exchange that it would not be executing the Option prior to the conclusion of the inquiry, and in those circumstances the Contentions lodged on behalf of Julia were of no assistance to the Tribunal – William Risk and Kathleen Mary Mills/McGinness/Corporate Developments Pty Ltd/Northern Territory DO01/77, unreported, Member Sosso, 15 April 2002 at [17] – [22].
[19] While the circumstances are different in this inquiry, it is still the case that while the Tribunal has been presented with a body of evidence about how Julia operates and will operate, no such evidence has been submitted with respect to the grantee party. In those circumstances where an Option to Purchase has not be exercised, and when there is no evidence about the likelihood or timing of the Option being exercised, the Tribunal will look to the grantee party to provide evidence on the assumption that it will be the person/entity who will engage in exploration. Additional information about the party who may purchase the tenement will be very useful, but it is not a substitute for direct evidence from the party who has the current contingent legal entitlement to carry out the exploration activities.
[20] In the absence of such evidence, the Tribunal will proceed on the assumption (as it has in this inquiry) that the grantee party will, subject to the regulatory regime in force, fully exercise his legal entitlements.
Expert Evidence Adduced by the native title party
[21] In addition to the Affidavit of Marjorie Foster, 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.
[22] 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
[23] 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.
[24] 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
[25] The native title party made the following submissions on community and social activities (OSC at para 42):
“42. The community or social activities of the native title group include:
a.Hunting, fishing, and gathering bush tucker [affidavit of Marjorie Foster [3] – [5]];
b.Collection of wood as firewood and for ceremonial and other purposes, including making artefacts [affidavit of Marjorie Foster [5]];
c.Camping [affidavit of Marjorie Foster [3] –[5]];
These activities occur over some or all of the licence area, and in its vicinity [affidavit of Marjorie Foster [3] – [5]].
These activities occur regularly and are carried on by more than isolated members … of the native title claim group [affidavit of Marjorie Foster [3] – [5]].”
[26] It is clear from the above extract from the Contentions of the native title party, that significant reliance is placed on the community or social activities that are deposed to by Mrs Foster. In her Affidavit, Mrs Foster deposes that her son Mickey lives in a house near Mt Thomas. The government party points out (GPCR at para 91) that there is no information provided by the native title party that would assist in locating this house in relation to ELA 22186. While that is true, the Tribunal was presented with an Affidavit by Mrs Foster in DO01/84 in which she also referred to this house. The mapping supplied in that inquiry discloses that Mt Thomas is located in the south east corner of ELA 22495. Mrs Foster deposed in the Affidavit submitted in that matter that her son Mickey’s house was located just south of ELA 22495. This Affidavit is set out in full in Kathleen Parry & Ors/Troy Resources NL/Northern Territory DO01/84, unreported, Member Sosso 24 May 2002 at [8]. Suffice it to say, the house that Marjorie Foster refers to is located more than 50 km south west of the proposed tenement.
[27] Mrs Foster deposes that “All of us, mostly all the family, all of my children go out there, especially Mickey and my daughter Margie Foster, who lives out at Daly. I go there too. Everybody goes, on the weekend.” Mrs Foster also deposes that she has been unable to live on country since she has suffered from diabetes, but nevertheless still visits with her family on weekends. She says that “I go out there most weekends. Sometimes I stay one week, two weeks at the house.” The question is whether, when Mrs Foster says that her family “go out there” and stay for the weekend, she is referring to staying at her son’s house, which is quite some distance from the area of the proposed exploration licence, or staying on and visiting the area of the proposed tenement. Assistance can be gleaned from Mrs Foster’s Affidavit which was considered in DO01/84. Mrs Foster deposed in that matter, in relation to ELA 22495 as follows:
“3. … I have not been able to live out there since I got diabetes in my 60’s, but I still go out with my family on weekends. I go out there most weekends. Sometimes I stay one week, two weeks at the house.
4. The house is located just south of the ELA. My son Mickey lives there. My husband built it. My husband is buried near the house on my country.”
I read Mrs Foster’s statement in paragraphs 3 and 4 of her Affidavit in this matter as meaning that while her sons Michael and Barry go hunting in the area of the proposed tenement, her statements about her and her family going there on weekends, refers not to the proposed tenement but to her son Mickey’s house near Mt Thomas. Such an interpretation makes the statements in both Affidavits consistent. Also, having regard to Mrs Foster’s age and health it is also the most likely interpretation, namely that she stays at the house that her husband built, near where he is buried and where one of her son’s lives.
[28] Mrs Foster refers to camping, hunting and gathering in Kamu country. While Kamu country is not explained or delineated, I accept her statement that ELA 22186 falls within it. However, while I am prepared to work on that assumption, I note that the location of Kamu country was dealt with by Toohey J in the Daly River (Malak Malak) Land Claim Report. Specifically, His Honour gave extensive consideration to the issue of whether there was an extant Kamu descent group and the country of that group – see pp 24-29. Various aspects of His Honour’s findings with respect to the Kamu were later the subject of certain legal proceedings: see eg Tapgnuk v Northern Land Council (1996) 132 FLR 40, Noy v Tapgnuk (1997) 138 FLR 205 and Marjorie Foster v Biddie Lindsay 1998 [NTSC] 62. The native title party did not refer to His Honour’s Report in this inquiry, and in the absence of any other party referring to it or relying on it, I also have not had regard to it in reaching a determination.
[29] Accordingly as I read Mrs Foster’s Affidavit, I understand her to be deposing that her sons Michael and Barry go hunting in the area of the proposed tenement. Further while I also understand her to say that she and members of her family camp in the area of the proposed tenement, and hunting and gathering activities are conducted there, the frequency of the camping trips is unclear. Moreover, when Mrs Foster refers to her family going “out there” on weekends I take that to mean staying at her son’s house south of Mr Thomas.
[30] When considering section 237(a) it is important to consider the leading Federal Court decision on this paragraph since it was amended in 1998. In Smith v Western Australia (2001) 108 FCR 442 French J pointed out that the Tribunal is required to conduct a predictive assessment, and that a future act is likely to result in interference with community or social activities if it involves a real chance or risk of interference. However, the interference referred to in section 237(a) (at 451) “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.” His Honour also said that
“in assessing the risk of direct interference the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed act is insubstantial. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”
[31] The government party made these submissions on section 237(a) (GPCR at para 60):
“These activities must be carried on. The scant references in the affidavit of Mrs Foster are so unspecific and there are very few references to the proposed licence area that contain any useful information upon which to found a carrying on of social or community activities on the proposed licence area. The specific locations at which these activities are said to occur are patchily identified, the number of relevant persons engaged in these activities, when they go, the seasonal variations in the game or item; all are unstated.”
[32] In assessing the likelihood of the future act interfering directly with the carrying on of the community or social activities of native title holders, I have taken into account the following factors:
(a)the proposed tenement forms part of Perpetual Pastoral Lease 903. The licensee of PPL 903 has a right, pursuant to the terms of the lease and the law governing that lease, to carry out lawful activities. To the extent that a pastoral licensee (or persons authorised by the licensee) lawfully exercise rights granted, such activity prevails over any native title rights and interests – s 44H. Toohey J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 (at 133): “If inconsistency is held to exist between the rights and interests conferred by native title and rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.” French J highlighted in Smith v Western Australia that when assessing the risk of direct interference the Tribunal is entitled to have regard to constraints already imposed on community or social activities by third parties. In this instance the Tribunal has had regard to the fact that community or social activities on the proposed tenement by native title holders, are already subject to lawful activities of the grantee of Perpetual Pastoral Lease 903;
(b)the area comprising ELA 22186 has been the subject of intensive exploration and mining activity for approximately 120 years. The proposed tenement contains six abandoned mines and the mapping provided by the government party highlights that almost the entire area of the licence has been explored by one means or another for at least two decades. Most types of exploration activity have been engaged in, and it would appear that no substantial part of the proposed tenement has been left untouched. Despite this history of intensive and extensive activity, no evidence has been produced to the Tribunal that this has in any material way interfered with community or social activities. Indeed, on the most beneficial reading of Mrs Foster’s Affidavit, it would appear that hunting and gathering still occurs on this area without any suggestion that current or past mining activities have had any deleterious impact;
(c)the area immediately surrounding the proposed tenement has also been the subject of extensive exploration and mining activity;
(d)the evidence of community or social activities carried out on the proposed tenement is relatively brief and would tend to indicate that although the subject area is visited by native title holders for traditional activities, the number of persons engaging in this conduct, the intensity of the activities and the nature of those activities, is not such that the grant of the exploration licence would be likely to substantially impact on those activities;
(e)there are no Aboriginal communities located within, or in close proximity to the proposed tenement;
(f)no evidence was presented of any areas within the proposed tenement that are of particular spiritual importance, such that interference with these areas would result in any direct interference to community or social activities of the native title holders;
(g)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. In previous inquiries I have referred to the conditions imposed on grantees pursuant to section 24A of the Mining Act. I will not repeat each of the pertinent conditions, however I do set out the first two which are of particular relevance to a section 237(a) assessment:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any extant 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;
(b) any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out its activities in such a way as to minimise the disturbance of the environment of the licence area, in particular by minimising:
(a) interference with the use of the land by other persons;
(b) the disturbance of flora, fauna and other natural resources;
(c) pollution, including soil, water and atmospheric pollution;
(d) the incidence and effects of soil erosion.”
There are other provisions in force in the Northern Territory which I have also previously outlined in other inquiries, however 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; and
(h)the Tribunal is entitled to presume that the grantee party will act lawfully in exercising rights given under the exploration licence – see Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Deputy President Franklyn.
[33] In conclusion, while I accept that community and social activities are carried on by native title holders on the subject area, I am not satisfied on the material before the Tribunal, and having regard to the factors outlined above, that there is any real chance or likelihood that the grant of the proposed tenement would be likely to result in direct interference within the meaning of section 237(a).
Section 237(b) – Areas or sites of particular significance
[34] The only area or site mentioned by Mrs Foster in her Affidavit is Marion Hill. She says that Marion Hill is poison country, and that any explorer should speak to her sons and “take the boys there to show them where they can go.”
[35] Marion Hill is located just south (about 2-3 km) of the south-eastern boundary of ELA 22495. While it is not possible to give a precise estimate of the distance from Marion Hill to the proposed tenement, it is likely to be approximately 64 km.
[36] There is no evidence before this inquiry that the poison country associated with Marion Hill covers the area of the proposed tenement or, indeed, is located anywhere near it.
[37] The native title party referred to eight sites recorded or registered by the AAPA on the proposed tenement, but did not identify them nor lead any evidence that any of these sites were of particular significance to native title holders.
[38] In order for the Tribunal to make an assessment of the likelihood of interference pursuant to section 237(b) there must be evidence of areas or sites either within or in close proximity to a proposed licence area, and that the relevant area or site is of particular significance to native title holders in accordance with their traditions. In this matter there is no evidence of any sites or areas that are of significance to native title holders. The fact that a site is registered or recorded by the AAPA does not automatically mean that it is of particular significance to native title holders, and this self evident proposition is manifestly demonstrated by this inquiry when the native title party produced no evidence whatsoever on sites recorded by the AAPA. The only site mentioned (Marion Hill) is located so far away from the proposed tenement that, on the evidence presented to the Tribunal, no question could arise of interference with it. Moreover, no evidence was led that the “poison country” referred to in any way includes the area of the proposed tenement. Finally, no evidence was led as to the particular significance of either Marion Hill or poison country or the authority of Mrs Foster to speak for that site or that country.
[39] It is not helpful that the native title party has presented to the Tribunal an Affidavit which makes a fleeting reference to Marion Hill, and then refers to Marion Hill in its Contentions on section 237(b) – OSC at para 48. It is not helpful because Mrs Foster and another native title holder have previously given evidence to this Tribunal about Marion Hill and identified its location as being many miles from ELA 22186. Marion Hill is located so far from the proposed tenement that its stretches one’s imagination to think how it could reasonably be contended that mining exploration on ELA 22186 could interfere with it. Moreover, not identifying the location of Marion Hill places the Tribunal and the other parties (particularly the grantee party) in a difficult position in that they were precluded from sensibly addressing the issue of the likelihood of interference with Marion Hill pursuant to section 237(b). The government party, for example, contended (GPCR at para 95): “It is unclear whether Marion Hill is within the proposed licence area. It is not identified in the AAPA information attached to the Objectors’ Contentions.” Obviously if the government party had been aware that Marion Hill was 64 km distant from the licence area, it would have been able to make specific submissions rather than the type of contentions that were actually lodged. If it were not for the fact that I conducted the inquiry into DO01/84 I would also have been unaware of the location of Marion Hill in relation to the proposed tenement. I therefore note that the omission of the native title party to disclose the location of Marion Hill in its Contentions was not only unhelpful to the Tribunal and the other parties, but also had the potential to mislead.
[40] In conclusion the scant material before the Tribunal is such that it is impossible to find that there is a real chance or likelihood of interference within the meaning of section 237(b).
Section 237(c) – Major disturbance to land or waters
[41] The native title party made extensive submissions on the issue of major disturbance, however the vast bulk of those submissions were not directed to the particular circumstances of the proposed tenement, but were of the standard type received in most expedited procedure objection inquiries. Nevertheless it was pointed out that the much of the proposed licence area is hilly (OSC at para 91) and that Mrs Foster is worried about what might happen to country (OSC at para 90).
[42] The government party made the following submissions (GPCR at paras 80-83):
“80.There is no evidence of any sensitive geological or environmental areas in the proposed licence area.
81. The state of the evidence simply does not establish how, where and why a major disturbance is likely to occur to any land or waters concerned.
82. There is no evidence before the Tribunal that activity from the plethora of previous exploration licences and mineral claims granted in the area caused or involved major disturbance.
83. The Government party iterates its contention that, taking into account:
(i) the absence of evidence of major disturbance;
(ii)the overall regulatory scheme which governs the exercise of the rights under the grant;
(iii)the additional statutory checkpoint which seeks to prevent and/or remedy any potential substantial disturbance, including by attaching remedial conditions; and
(iv)the statutory requirement that productive mining activities need proceed through a completely independent future act process under the NTA than that for exploration activities,
the Tribunal will conclude that the grant of the proposed licence does not 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.”
[43] In Moses Silver I set out key provisions of the then regulatory regime governing exploration activities in the Northern Territory. Subsequently Deputy President Franklyn described the changes brought about by the Mining Management Act in Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, 27 March 2002 and Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported 17 April 2002. I adopt, for the purposes of this inquiry, the analysis of the regulatory regime set out in the abovementioned determinations. The evidence submitted in this inquiry about the regulatory regime is consistent with previous findings of the Tribunal that it 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.
[44] It is clear that the area of the proposed exploration licence has been the subject of extensive exploration and mining activity. Yet despite more than a century of such activity, no evidence has been led that it has resulted in major disturbance to land or waters. Indeed, Mrs Foster deposes that hunting and gathering still occur on the area, and if previous exploration had any major impact on the land or waters, it would be assumed either that this would have resulted in an impairment on traditional hunting and gathering (which was not suggested) or there had been some instances where there was disturbance to the land or waters (no evidence of which was led).
[45] Apart from the fact that this is hilly country, no evidence has been produced that there are any specific factors about this country which would render it more likely that the proposed exploration activities would result in major disturbance to land or waters.
[46] It also must be borne in mind that there are no communities situated on or immediately adjacent to the proposed tenement that would be directly affected by exploration activities.
[47] Finally it is not clear from Mrs Foster’s affidavit that she is necessarily opposed to exploration occurring. Indeed while she says that she is worried about what might happen to her country, this is said in the context of mining activity. The concern expressed is not necessarily directed towards exploration of the type proposed. In any event she expresses a desire that consultation should occur with her children and that her sons should assist in showing a grantee party where exploration can take place. As the government party highlighted (GPCR at para 99), the compulsory on site consultation (condition 18 of the “Second Schedule” Conditions made pursuant to section 24A of the Mining Act) between the grantee party and registered native title claimants when concerns can be ventilated will ensure that issues such as these can be addressed and proper protocols developed.
[48] I am satisfied on the basis of the evidence before the Tribunal, the absence of any evidence of disturbance from previous exploration activity, the nature of the regulatory regime governing mining exploration in the Northern Territory and the absence of any material indicating that the subject area has particular environmental or geological considerations, that it is not likely that the grant of the exploration licence would result in major disturbance within the meaning of section 237(c).
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22186 to Robert Michael Biddlecombe is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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