Ben Ward and Others on behalf of the Miriuwung & Gajerrong People/Ausquest Limited/Northern Territory
[2002] NNTTA 41
•8 April 2002
NATIONAL NATIVE TITLE TRIBUNAL
Ben Ward and Others on behalf of the Miriuwung & Gajerrong People/Ausquest Limited/Northern Territory, [2002] NNTTA 41 (8 April 2002)
Application No: DO1/63
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of a Future Act Determination Application
Ben Ward and Others on behalf of the Miriuwung & Gajerrong People (Native Title Party)
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Ausquest Limited (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: 8 April 2002
Hearing dates: 10 December 2001, 14 January 2002
Government Party: Mr Daniel Lavery, 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 Graeme Drew
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – grantee party’s intentions – presumption of regularity - likelihood of interference with areas or sites of particular significance – in accordance with traditions of the native title holders - not an act which attracts the expedited procedure - objection application upheld.
Legislation: Native Title Act 1993 (Cth) ss 29,32, 146, 151, 237.
Northern Territory Sacred Sites Act 1989
Cases:Ben Ward/Button Jones/Ashton Exploration Australia Pty Ltd/Northern Territory of Australia DO01/03 and 23, Member Sosso, 1 February 2002
Little v Western Australia [2001] FCA 1706
Mark Lockyer & Ors on behalf of the Kurama Marthudunera People/Western Australia/Adelaide Prospecting Pty Ltd WO01/423, Deputy President Sumner, 27 March 2002
Re Miriuwung and Gajerrong Peoples (1996) 128 FLR 90
Northern Territory/Ben Ward/Ashton Exploration Australia Pty Ltd DO01/03, Member Sosso, 24 October 2001.
Scotty Birrell & Ors/Western Australia/John Booth WO99/574, Deputy President Franklyn, 25 September 2000
Smith v Western Australia (2001) 108 FCR 442
Walley & Ors/ Boddington & Ors/Western Australia/Giralia Resources WO01/179 and 180, Deputy President Sumner, 8 March 2002
Ward v Western Australia (1998) 159 ALR 483
Western Australia/Glen Money/Jack Britten & Ors WO99/800, Member Stuckey-Clarke, 25 June 2001Western Australia v Ward (2000) 99 FCR 316.
Wilma Freddie/Western Australia/Stephen Povey WO99/882 Member Stuckey-Clarke, 19 December 2001
REASONS FOR DETERMINATION
Background
[1] On 7 March 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 22646 (“the proposed tenement”) to AusQuest Limited (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 493 blocks (1625 square kilometres) and is comprised of the following Perpetual Pastoral Leases (“PPL”): PPL 1013 known as “Rosewood”, and PPL 1014 known as “Newry”.
[3] A native title determination application covering part of the area of the proposed tenement, ie the area to the north of 16°10’ and on the western side of the Duncan Highway (which would be approximately 40-50% of the area), has been filed with the Federal Court. The application (DC95/1, DG6008/98) was lodged on 3 January 1995 and was entered on the Register of Native Title Claims on 8 September 1995. The Applicants are Ben Ward and others on behalf of the Miriuwung & Gajerrong People. This application is yet to be registration tested under the statutory regime effected by the 1998 amendments to the Native Title Act 1993. The background to this situation is set out in Northern Territory/Ben Ward/Ashton Exploration Australia Pty Ltd DO01/03, unreported, Member Sosso, 24 October 2001.
Although only part of the area of the proposed tenement falls within the boundaries of the registered native claim, nevertheless it provides the platform for the objection to the grant of Exploration Licence 22646 without the native title party being afforded the right to negotiate. No party has made any submissions to the Tribunal on this issue, and in the absence of any contentions, I have proceeded on the basis that the determination to be made is whether the expedited procedure is attracted to all of the land and waters that comprise Exploration Licence 22646 and not just to that part of the Exploration Licence that comprises DG6008/98.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 25 April 2001 which was within four months after the section 29(4) notification day of 7 March 2001 (section 32(3)). An amended Form 4 was subsequently submitted on 7 August 2001. The named objectors are Ben Ward and others (on behalf of the Miriuwung and Gajerrong people), who are the Applicants named above.
[5] Deputy President Sumner issued Directions for the conduct of the Inquiry on the 16 July 2001 and convened a preliminary conference of the parties on 7 August 2001. The various contentions made by the parties have been pursuant to those Directions. On 1 October 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. Following my appointment listings hearings were convened on 10 December 2001, and 14 January 2002 and on those dates 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. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. In this matter I am satisfied that the material lodged with the Tribunal is sufficient to allow a determination to be made “on the papers”.
[7] All parties submitted extensive written contentions to the Tribunal, which are as follows:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC”) dated 21-11-2001
Contentions in Reply (“GPCR”) dated 19-12-2001
Final Contentions of the Government Party (“GPFC”) dated 9-1-2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 28-11-2001
Response to Tribunal Matters (“ORTM”) dated 5-12-2001
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 19-12-2001
Reply to Final Contentions of Government Party (“ORFC”) dated 16-1-2002
Grantee Party Contentions
Letter from Mr Graeme Drew, a Director of AusQuest Limited (“Gr1) dated 13 December 2001
Evidence
[8] The native title party lodged with the Tribunal the Affidavits of the following persons:
(a) Birrbi Manggari - aka Monkey Rosewood (Marrpngayarri) dated 16 September 2001, and
(b) Ben Barney dated 16 September 2001.
[9] Mr Barney states (at paragraph 2 of his Affidavit) that he lives at Bubble Bubble Community, but that he was born on Newry Station and that his country is on the “Newry side”. While neither Mr Barney nor the native title party has informed the Tribunal of his relationship to the native title claim group, it would appear that Mr Barney is a registered native title claimant. The list of registered native title claimants for the Miriuwung People and the Gajerrong People as at 6 February 1998 includes a “Ben Barney”. For the purposes of this determination I have worked on this assumption.
[10] Conversely the relationship of Mr Manggari to the native title claim group is not clear. In another inquiry I recently conducted there was evidence before the Tribunal that Mr Manggari was a member of the Newry-Rosewood native title claim group – see Ben Ward/Button Jones/Ashton Exploration Australia Pty Ltd/Northern Territory of Australia DO01/03 and 23, Member Sosso, 1 February 2002 at [10] – [14]. However in this inquiry, as with the previous inquiry, there is no evidence before me that Mr Manggari has been authorised by the Miriuwung and Gajerrong #3 claim group to speak on their behalf. Consequently the status of Mr Manggari to speak for the land and waters that comprise the Miriuwung and Gajerrong #3 claim is unclear.
Nevertheless the Miriuwung and Gajerrong #3 claim only constitutes part of the area of the proposed tenement. Even if Mr Manggari does not speak on behalf of the Miriuwung and Gajerrong #3 claimants, he may well be authorised to speak on behalf of other native title holders. Again, if that is the case, then the Tribunal has been provided with no specific material explaining the situation and putting the evidence of Mr Manggari into its proper context. As it is, Mr Barney specifically refers to Mr Manggari in his Affidavit, and this has assisted the Tribunal.
In summary while I accept Mr Manggari’s evidence, the weight that can be given to it is less than if his status and relationship to the registered native title claim group or other native title holders had been directly dealt with. In expedited procedure objection inquiries there is clearly a need to articulate the relationships between a person giving primary evidence, the country in question and the registered native title claim group. If that person is a member of the claim group, then the Tribunal should be informed whether that person has been authorised to speak on behalf of the claim group, and if he or she has, by whom and when. The absence of such information is not fatal, but it does render the task of the Tribunal more difficult. In addition there is also the probability that the weight that will be ascribed to the evidence of the witness will be less than if such information had been provided – see Little v Western Australia [2001] FCA 1706 at [79] per R D Nicholson J.
[11] The Affidavits of the above mentioned gentlemen are set out below:
Affidavit of Birrbi Manggari
“1. I have been told that the Northern Territory Government wants to grant an exploration licence over parts of Newry and Rosewood stations. I have seen a map of the area of the ELA. Now produced and shown to me marked “BM-22646” is a map of the ELA and the surrounding area. The area of the ELA includes part of my country.
2. My father’s country is Pumundu, but I grew up on Rosewood, my father was working for Jack Guilfoyle. Rosewood is my country now. I grew up there, riding horses, mustering cattle. The old people told me about that country. The country goes from Rosewood station into Lake Argyle, up to the top of the Keep, to Blackfellow Creek, across to Kildurk, and along that boundary fence.
3. An old man was shot not far from Rosewood station yard in the wild days. They burned him at Dingo Springs. I know that place. It’s on the road to Number 6 Bore. I don’t want the mining mob in there.
4. Near Rosewood station (Larro), there’s a hill called Yirragi on the Black Cockatoo Dreaming (Warlugbin). There are lots of people buried in an old time graveyard by the creek south of that hill. The Dreaming goes from Yirragi to Byrnes’s Hill, where there are Bardigi tree – Nutwoods. Then it goes to a place on Blackfellow Creek, near the head of the Keep, called Jilarndim; then he turns back and travels through Cross Keys Well, Schoolboy Creek to Mount Duncan, which is called Girlirrangin, and then to the gate near Gum Creek. The mining company can’t go drilling at Mount Duncan or any of those places where the Black Cockatoo stopped.
5. They can drill at Faraday. Soda Creek and Peter Springs Creek: there’s nothing there.”
Affidavit Ben Barney
”1. I have been told by the Northern Land Council that the Northern Territory Government wants to grant an exploration licence over parts of Newry and Rosewood stations. I have seen a map of the area of the ELA. Now produced and shown to me marked “BB-22646” is a map of the ELA and the surrounding area. The area of the ELA includes part of my country.
2. I live at Bubble Bubble Community (Damberam), Evening Star Dreaming, past Newry from Timber Creek. My country is Newry side. I was born on Newry Station.
3. There are three communities in the Northern Territory on the north side of the Keep River: Bubble Bubble (Damberam), Bucket Springs (Binjen) and Police Hole. There are also communities in Western Australia between the border and Kununurra, including: Ngaliwiriwir, FourMile; Red Creek; Eight Mile; and Ben Ward’s community at Cockatoo Spring.
4. At Newry, there’s a hill called Gurdim, and a waterhole called Murnamurum. Gurdim is the hills that go back to Dingo Gap.
5. Yawurryawurrum is the Dingo Dreaming at Dingo Gap, on the ELA area. He’s a private Dreaming for man, standing up there. The Dingo is Jimirran. The mining company can go look, but they can’t do any digging there. They can go to that old copper mine again closer to Argyle can mine on the west of the Duncan Road, but not the east. I don’t want them to blow up or dynamite that private Dreaming. They can’t go there and damage it because it’s from Ngarrangkarni, the Dreamtime.
6. There are other places: Revolver Spring on the north side of Argument Gap, where the Victoria Highway and Saddle Creek go through. Nyalabarrbam, bush chewing gum, is the name of that spring. There is a waterhole at Saddle Creek, up from Argument Gap, called Breaky Rock Hole. That’s the Dreaming for the sun; it can burn you right through. You call the name of someone and they’ll be burnt.
7. Emu Spring is Jiilm. It has a Dreamtime story: Lightning Dreaming for big storm. They can’t touch the bottle trees there. There’s a nice place with flat rocks. The lightning had an argument with his wife and he went and stopped there for good. He was angry and he made the lightning. The mining mob can go and drink the water and swim there; but they can’t mine or dig up anything. They can’t touch the bottle tree or the spring.
8. Ngalanyanim is near Blackfellow Creek; on top of that creek is black soil: there’s a Bottle Tree, Gardawuny. It’s Dreaming for flood. The mining company can go there and look, and take photos from a long way away; but they can’t touch it. I can rub my sweat on people and they can touch him; otherwise, everything will flood. This is a sacred place. They can work further down Blackfellow Creek;
9. We used to walk from Newry station to Kildurk, holiday time and camp all around. Mining mob can have a look, but if they do find something I don’t want them to wreck the country.
10. On the Keep River there’s that Black Cockatoo which we half-own with that old man, Birrbi Manggari. It’s not far from that Keep River; there is a spring there. I don’t want the mining mob to go to Jilarndim. It’s on the ELA area.
11. There are some places which are more sacred that others. Some are not sacred; they are only Dreaming places. Breaky Rock Hole on Saddle Creek is very sacred. The Bottle Tree, Gardawuny, is more sacred than Jiilm.
12. There are old people buried at Newry Homestead. There is stone around there. I go and visit every couple of weeks. The graves are from the station time and from before that too. I’ve got that Goanna Dreaming, Marlajagu. We don’t want that mining mob to go there. I sometimes go and get a killer out there; I go ask.
13. We go fishing on Newry at Goose Hole and Matilda Creek down the Duncan Highway. Goose Hole is on the Newry/Rosewood fence on that Highway, Newry side. I catch goanna and bush turkey. I go maybe twice a year. If the mining mob go there then it’s OK. If they try to tell me to get out, I’ll tell them to get lost. We got to share the place.
14. I visit Dingo Gap when I have time. When I drive past I clean out the grass around that dreaming place, Dingo Springs. No one can burn the grass around that Dreaming thing.
15. If the mining company digs holes and trenches for exploration then it’s OK as long as they don’t make a real big mess. Else I’ll take them to court and tell them to put all the ground back and all the trees back.”
Federal Court Decisions
[12] The native title party made reference (OSC at paras 29-30) to various extracts from the judgment of Lee J in Ward v Western Australia (1998) 159 ALR 483 and that of the Full Federal Court in Western Australia v Ward (2000) 99 FCR 316. The native title party’s reliance on the judgement of Lee J at first instance and that of Beaumont and Von Doussa JJ on appeal, was primarily directed towards findings with respect to community and social activities. The Tribunal was directed (OSC at para 42) to pages 538 and 539 of Lee J’s judgment and paragraphs 157-159 and 243 of that of Beaumont and Von Doussa JJ.
[13] It was contended that Button Jones and Ben Barney were applicants in the Miriuwung Gajerrong application, the subject of the above Federal Court decisions, and that the area of the application included the Keep River National Park just to the north of the proposed tenement and areas of Western Australia immediately to the west of the proposed tenement, including Lake Argyle. The essence of the native title party’s submission was that Lee J at first instance made undisturbed findings of fact regarding activities carried out by members of the Miriuwung and Gajerrong native title claim group and that it was open to the Tribunal to draw an inference that these activities took place on the proposed tenement.
[14] The government party pointed out (GPCR at para 8(a)) that in fact the native title party did not provide to it (or the Tribunal) any such extracts from the decision of Lee J.
[15] The Tribunal does not have before it any information about the activities which were the subject of Lee J’s decision, eg what they were, their frequency, the persons engaged in them, their significance to members of the native title claim group etc. Moreover it cannot be assumed that because activities occur in the vicinity of the proposed tenement that such activities take place on the proposed tenement. There may well be significant differences in the terrain, in the use of lands, and many other matters. I am not stating that there are such differences, however one certainly cannot assume that simply because evidence is adduced as to activities in areas in the vicinity of a proposed tenement, that it is necessarily safe or appropriate to extrapolate that this is the situation on the proposed tenement.
[16] Even if I were to give the benefit of the doubt to the native title party, there is still no material before the Tribunal, except a bald statement that there is some dicta in the decision of Lee J that I should adopt pursuant to section 146(b). With due respect to the native title party, it is not the role of the Tribunal to make assumptions which are not firmly based on the evidence submitted. Nor is it the role of the Tribunal to do research for the native title party. If a party wishes to rely on secondary material, that party bears the responsibility of fully and fairly explaining its relevance to the Tribunal and to the other parties. Clearly procedural fairness requires that there be a level evidentiary playing field so that all contestants can, in an open and transparent fashion, present their case and be subject, when the occasion arises, to a reply from another party.
[17] In addition the Tribunal has not been presented with any detailed material on the composition of the claim group in the native title application before Lee J and the native title claim group in this matter. Certainly there is evidence that there are similarities between the two. Moreover, even if it is assumed that the claim group is identical in both matters, the fact that in unrelated litigation in the Federal Court, native title rights have been found with respect to land and waters in the vicinity of the proposed tenement, does not of itself provide an adequate foundation for this Tribunal to draw conclusions unsupported by evidence of specific activities on the proposed tenement.
[18] While there may well be circumstances where the Tribunal can and should exercise it powers under section 146(b), to adopt the findings of a Federal Court judge as to matters pertinent in an expedited procedure objection inquiry, this is not such a case. If a party wishes to make such a contention it is up to that party to provide, and draw the Tribunal’s attention to the relevant portion of a judgment, and explain its relevance. While the native title party has certainly drawn the Tribunal’s attention to the decision of Lee J, and directed it to certain pages of his reasons as reported in the Australian Law Reports, it has not satisfactorily sought to explain why the findings of His Honour can be safely and conclusively applied to the area of the proposed tenement.
Registered or Recorded Sites
[19] The evidence before the Tribunal discloses that there is one site within the area of the proposed tenement that is registered by the Aboriginal Areas Protection Authority (“AAPA”). This site (Yawurryawurrum) consists of hills, a spring and other features and lies in the area of the junction of the Victoria and Duncan Highways in the north western portion of the proposed tenement.
[20] In addition there are a total of twenty recorded sites within the proposed tenement. Fourteen of these sites appear to be dotted along, or within close proximity to, the entire length of the Duncan Highway. Of the remaining six sites, two are located in the extreme north eastern corner of the proposed tenement, three are positioned in the centre of the proposed tenement, and one in the south eastern corner of the tenement.
[21] Approximately seven kilometres beyond the northern border of the tenement, there is a cluster of eleven recorded sacred sites that are also situated in close proximity to the Duncan Highway. There are a further three recorded sacred sites within a ten kilometre radius of the north east border of the tenement. Some 25 kilometres north east of the proposed tenement close to the Victoria Highway there are a further three recorded sites.
Aboriginal Communities
[22] The native title party contends (OSC at para 39) that there are several communities in the vicinity of the proposed tenement which are occupied by members of the native title claim group, namely:
(a) Northern Territory communities:
(i)Bubble Bubble Community (Damberam);
(ii)Bucket Springs (Binjen); and
(iii)Police Hole.
(b) Western Australian communities:
(i)Ngliwiriwir;
(ii)Four Mile;
(iii)Red Creek;
(iv) Eight Mile;
(v)Mr Ben Ward’s community at Cockatoo Spring; and
(vi) Kununurra.
[23] None of these communities are located within the proposed tenement, with the closest being approximately 35 kilometres distant.
Previous and Current Exploration/Mining Activity
[24] The government party disclosed to the Tribunal that the area of the proposed tenement has been the subject of numerous grants of exploration licences by the Northern Territory. The following Exploration Licences (EL) have been granted over the subject area:
EL 391, 1628, 2235, 2236, 2238, 5392, 5393, 5394, 5529, 5615, 5619, 7035, 7134, 9101 and 9458.
In addition the following Prospecting Authorities (AP) have been granted:
AP 2068, 2327, 2466, 2866 and 3168.
[25] Maps produced by the government party would indicate that previous exploration grants cumulatively have covered the entire area of the proposed tenement. Moreover although exploration activity did not eventuate in every instance, nevertheless it is clear that some form of exploration activity has occurred in almost every sector of the proposed tenement. It would appear the most extensively explored area is the north western portion, with far less activity occurring in the southern and eastern portions.
[26] From the extracts of the company reports, it would appear that the sole type of exploration activity has been stream sediment/gravel sampling, with such activity occurring over three distinct time periods: 1980-1981, 1992-1993 and 1997-1999.
[27] In the immediate vicinity of the proposed tenement there are currently numerous applications for exploration licences, but from the mapping supplied by the government party there is currently only one exploration licence that has been granted, namely EL 8915, which is east of the proposed tenement and in the Tee Dee Hill locality. In addition in Ben Ward and Button Jones/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/03 and 23, 1 February 2002, I determined that the grant of EL 22332 to Ashton Exploration Australia Pty Ltd was an act attracting the expedited procedure. EL 22332 borders the proposed tenement on the eastern side.
Nature of the proposed exploration activity
[28] In its “Application for the Grant of an Exploration Licence”, the grantee party disclosed that its proposed work program for the first year included:
(a) data research and interpretation;
(b) geochemical sampling;
(c) geophysical surveys;
(d) drilling;
(e) analytical testing; and
(f) administration/camp costs.
[29] Apart from the information disclosed in the grantee party’s Application, the only other material before the Tribunal is a letter dated 13 December 2001(GR1) in which the grantee party relies on the contentions of the government party and discloses that most of its early exploration interest will be confined to the southern portion of the proposed tenement. A map accompanying the grantee party’s correspondence discloses that the area of early exploration interest is in the area which is later described by Mr Manggari as falling within the area of the Black Cockatoo Dreaming.
Legal Principles
[30] I adopt, for the purposes of this inquiry, the legal principles set out by me in paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory, unreported, DO01/13, 1 February 2002.
[31] 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
[32] There are no Aboriginal communities located within the area of the proposed tenement. In addition there are no communities immediately adjacent or in the immediate vicinity of the proposed tenement.
[33] Only limited material has been presented to the Tribunal of any community or social activities occurring in the vicinity of the proposed tenement.
[34] Mr Barney deposes that “we used” to walk from Newry station to Kildurk at holiday time and camp all around. Newry station is located in the extreme north eastern section of the proposed tenement, but it would appear that Kildurk is located off the tenement. Consequently just how much of the journey between these two locations would have involved camping and hunting on the proposed tenement is unclear. Assuming, however, that some camping on the proposed tenement did occur (and I assume that it did), then it would appear that this activity occurred in the past only. Moreover who accompanied Mr Barney on his journeys from Newry station to Kildurk is also left unsaid. There is no evidence of when these journeys occurred, the numbers of people involved or their relationship to the native title claim group.
[35] Reference is also made to burial sites at Newry Homestead, which is visited by Mr Barney every couple of weeks (Affidavit of Ben Barney at para 12). In addition Mr Barney deposes that “we” go fishing at Goose Hole and Matilda Creek, and that he catches goanna and bush turkey. However it would appear that this activity only occurs twice a year (para 13) and that Mr Barney has no objection to exploration occurring provided that he is not prevented from fishing or hunting. As he puts it: “we got to share the place.” Finally, Mr Barney deposes (at para 14) that he visits Dingo Gap which is a dreaming place, and which he keeps clean. For the purposes of this inquiry I have assumed that all of these places are located on the proposed tenement.
[36] Mr Manggari does not depose to any community or social activities on the proposed tenement.
[37] In Smith v Western Australia (2001) 108 FCR 442 French J pointed out that the concept of interference in section 237(a) is to some degree evaluative. His Honour said (at 451): “It 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.” In addition, His Honour also said that the evaluation required by the Tribunal is contextual (at 451): “The extent of the interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial.”
[38] I am satisfied by the evidence submitted that some members of the native title claim group do engage in social and community activities on the proposed tenement. However the task required of the Tribunal is to evaluate the likelihood of those community or social activities being directly interfered with. Moreover, as French J has highlighted, that interference must be substantial.
[39] It is of key importance in an inquiry such as this to determine:
(a)the frequency of community or social activities;
(b)the importance of those activities;
(c)the areas where this activity occurs; and
(d)the persons engaging in those activities.
The evidence before the Tribunal is scant. I have no reason to doubt the evidence given by Mr Barney. It clearly is consistent with a view that the area of the proposed tenement is only visited on an irregular basis, possibly only a few times a year. Moreover, the material presented by the native title party also leads to the conclusion that the community and social activities are predominantly carried out by a relatively small group of persons, and then only in particular parts of the tenement. Certainly I have been presented with no primary evidence which demonstrates that that the area of the proposed tenement is regularly visited by a wide spectrum of the native title claim group. Nor have I been presented with evidence that the community or social activities take place in other than specific parts of the tenement, or that those activities have any particular importance or significance to those persons.
[40] Deputy President Sumner recently conducted an expedited procedure objection inquiry where the evidence presented was not totally dissimilar to that presented to the Tribunal in this matter. In finding that there was not a likelihood of direct interference pursuant to section 237(a), Deputy President Sumner made the following observations – Mark Lockyer & Ors on behalf of the Kurama Marthudunera People/Western Australia/Adelaide Prospecting Pty Ltd WO01/423 27 March 2002:
“[15] All this suggests that there may be some community or social activities which take place in the general area of the tenement from time to time and there may potentially be some interference with them. The evidence concentrates on the activities of Jean Lockyer and Neil Finlay and their families but does not support resort to the area of such regularity or intensity by the claim group members as to result in exploration activity substantially interfering with them. In considering the likelihood of interference I have also taken account of the fact that the area of the exploration licence is large (over 200 square kilometres) and that if ground-disturbing activity such as drilling occurs it is unlikely to be over the whole of the tenement at the same time. I accept that drilling normally occurs in limited areas targeted for the purpose.”
[41] In this inquiry the situation is even clearer. The proposed tenement is eight times larger than that considered by Deputy President Sumner (1625 square kilometres). It is wholly comprised of pastoral leases, and, as French J highlighted in Smith, the Tribunal when evaluating the extent of interference is entitled to (451) “have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation.” In addition the primary evidence submitted is limited to the Affidavit of Mr Barney. The Tribunal has not been presented with any evidence that either previous exploration activity or current and ongoing pastoral activities have had a deleterious impact on the native title party’s community or social activities.
[42] The Tribunal has been presented with extensive evidence by the government party on the regulatory regime in force in the Northern Territory which places substantial, and, indeed, comprehensive, limits on the manner in which an explorer can exercise rights granted by an exploration licence. Moreover, the Tribunal is entitled, in the absence of any evidence to the contrary, to apply the presumption of regularity.
[43] Having regard to all of these factors I find that there is not a real chance or risk that the community or social activities of native title holders will be directly interfered with by the granting of the tenement.
Section 237(b) – Areas or sites of particular significance
[44] As previously noted, the proposed tenement has within its boundaries 20 sites recorded by the AAPA and one site that has been registered.
[45] The native title party contends that the grant of the exploration licence would be likely to interfere with the following areas or sites, which are further contended to be of particular significance within the meaning of section 237(b):
(a)Yawurryawurrum, which is a private Dreaming for men (Affidavit of Ben Barney at paras 6 and 15) – AAPA 4765-5a, which is spelt Yawarryawerrum on the AAPA site map;
(b)Nyalabarrbam (Revolver Spring) – bush chewing gum – (Affidavit of Ben Barney at para 7);
(c)Breaky Rock Hole, which is Dreaming for the Sun – (Affidavit of Ben Barney at paras 7 and 12) ;
(d)Jiilm, which is Lightning Dreaming for a big storm (Affidavit of Ben Barney at paras 8 and 12) – AAPA 4765-6, which is spelt “Jiylm” by the AAPA;
(e)Gardawuny, which is a bottle tree and Dreaming for food, and unless proper protocol is followed there may be flooding (Affidavit of Ben Barney at paras 9 and 12);
(f)Jilarndim, which is on the track of the Black Cockatoo Dreaming (Warlugbin) (Affidavits of Ben Barney at para 11 and Birrbi Manggari at para 4) – AAPA 4765-12, which is spelt Jilunndum by the AAPA;
(g)Burials at Newry homestead (Affidavit of Ben Barney at para 13);
(h)Burial at Dingo Springs (Affidavit of Birrbi Manggari at para 3);
Yirragi, which is also on the track of the Black Cockatoo Dreaming (Affidavit of Birrbi Manggari at para 4) – AAPA 4765-18, which is spelt Yerragi by the AAPA;
(j)Burials at Yirragi (Affidavit of Birrbi Manggari at para 4); and
(k)Girlirrangin, which is also on the track of the Black Cockatoo Dreaming (Affidavit of Birrbi Manggari at para 4) – AAPA 4765-28, which is spelt Galirrnging by the AAPA.
[46] It is of relevance to highlight that all of the sites mentioned by Mr Manggari in his Affidavit are located within the proposed tenement. A primary focus of his evidence was directed towards Black Cockatoo Dreaming sites. With respect to the sites on the Dreaming track he deposed (at para 4): “The mining company can’t go drilling at Mount Duncan or any of those places where the Black Cockatoo stopped.” Essentially, the Black Cockatoo Dreaming starts from the southwest corner of the proposed tenement near Rosewood Station and follows a triangular trajectory towards Jilarndim, which is located in the central east. It then heads south towards Mount Duncan in the south east corner of the proposed tenement.
[47] While I have expressed reservations about the way in which Mr Manggari’s evidence has been presented to the Tribunal, it should be noted that Mr Barney specifically refers to Mr Manggari in his Affidavit, and makes this comment (at para 10): “On the Keep River there’s that Black Cockatoo which we half-own with that old man Birrbi Manggari.” This statement of Mr Barney is of assistance to the Tribunal in evaluating the evidentiary worth of Mr Manggari’s statements about Black Cockatoo Dreamings.
[48] There are numerous references by Mr Barney to sites and areas, nevertheless many of these areas or sites are located outside the area of the proposed tenement. While the Tribunal, in conducting a section 237(b), is not limited to considering areas or sites located within the area of a proposed tenement (see Scotty Birrell & Ors/Western Australia/John Booth WO99/574, unreported, Deputy President Franklyn 25 September 2000 at page 6), nevertheless there must be some evidence that the granting of the tenement will directly and physically interfere with that area or site.
[49] Mr Barney refers (at para 4) to Gurdim (AAPA 4766-51), which is a recorded site and which is located approximately 10 kilometres outside of the north east border of the proposed tenement. Reference is also made to various sites in the area of Argument Gap where the Victoria Highway and Saddle Creek intersect. Indeed Mr Barney assigns a degree of significance to these sites. Despite this, these sites are located approximately 45 kilometres north east of the proposed tenement.
[50] A further site Mr Barney deposes to is Jiilm (at para 7), which has been recorded by the AAPA (4765-7). Once again this site is located some distance from the tenement – approximately 6.25 km east, and there is no material indicating that exploration activities on the proposed tenement would be likely to interfere with it.
[51] Mr Barney also deposed to a site called “Ngalanyanim” near Blackfellow Creek where there is a bottle tree “Gardawuny”. This is a site of some importance and sacredness to Mr Barney. Unfortunately it is unclear where the Gardawuny bottle tree is located as it is not disclosed on the AAPA map supplied to the Tribunal. Nevertheless it is pertinent to note that Blackfellow Creek extends from the central portion of the proposed tenement, and flows through the adjoining tenement (ELA 22332) and on to ELA 23333. There is, in fact, a site (AAPA 4865-30) recorded near Blackfellow Creek on ELA 23333 which is referred to as Pitjpum which consists of a boab tree at Amanda Bore. Maps supplied to the Tribunal disclosed no other recorded boab tree sites in the vicinity of Blackfellow Creek within these tenements. If Pitjpum is the Gardawuny bottle tree site, then it is approximately 50 kilometres north east of the proposed tenement. For the purposes of this inquiry, though, it is not necessary for me to reach a settled conclusion on this question.
[52] There is no material before the Tribunal that exploration activity would be likely to directly interfere with any of the areas or sites that are located outside of the proposed tenement.
[53] Apart from these areas and sites, Mr Barney in fact does refer to sites on the area of the proposed tenement. Of particular importance in this regard is his description of Yawurryawurrum, or the Dingo Dreaming site at Dingo Gap. Yawurryawurrum (4765-5a) is, in fact, the only registered AAPA site on the proposed tenement. Mr Barney deposes that the explorers can “go look, but they can’t do any digging there.”
[54] The fact that a site is registered is of relevance, though it is not of itself determinative of the issue of whether that area or site is of particular significance as required by section 237(b).
[55] Both Mr Barney and Mr Manggari refer to sites at Dingo Springs. Mr Manggari states (at para 3): “An old man was shot not far from Rosewood station yard … They burned him at Dingo Springs. I know that place. It’s on the road to Number 6 Bore. I don’t want the mining mob in there.” Mr Barney also deposed: (at para 14): “I visit Dingo Gap when I have time. When I drive past I clean out the grass around that dreaming place, Dingo Springs. No one can burn grass around that Dreaming thing.”
[56] Finally, Mr Barney also refers to burial sites at Newry Homestead. This is within the area of the proposed tenement, however the AAPA has neither recorded or registered any burial sites in this locality. Nevertheless it would appear that Mr Barney visits the burial sites “every couple of weeks” and the burial sites are of particular importance to him in accordance with his traditions.
[57] It is clear from the material presented to the Tribunal that the proposed tenement contains numerous areas and sites of significance to native title holders. While not all of the recorded sites are referred to in the brief Affidavit material submitted by the native title party, the Tribunal is entitled to take notice of the fact that the AAPA has been prepared to record some 20 areas or sites, which although not properly evaluated, nevertheless demonstrate that there is information indicating that they are significant according to Aboriginal tradition, and therefore “sacred sites” within the meaning of that term in the Northern Territory Sacred Sites Act 1989.
[58] I am satisfied that the Black Cockatoo Dreaming sites, are sites of particular significance to members of the native title claim group. I am also satisfied that the Yawurryawurrum site is also a site of particular significance. In addition, there are other sites (including the burial places at Dingo Springs and Newry Homestead) which although apparently neither recorded or registered by the AAPA, are, nonetheless, sites of particular significance to native title holders.
[59] The evidence before the Tribunal discloses that this particular area is “site rich”, and that this area is one of complex interlocking sites: see Re Miriuwung and Gajerrong Peoples (1996) 128 FLR 90 and Western Australia/Glen Money/Jack Britten & Ors WO99/800, Member Stuckey-Clarke, 25 June 2001. It is clear from the evidence of both Mr Barney and Mr Manggari that the land and waters in question comprise many areas of deep spiritual significance and importance to native title holders. Moreover, the evidence suggests that it is not possible to quarantine these areas to a particular geographical portion of the proposed tenement, or indeed to isolated and geographically discrete areas. Dreaming sites dot the landscape. Dreaming tracks criss-cross the tenement. Some have greater significance than others, but the cumulative impact of the evidence is that this particular area of the Northern Territory is of high cultural and spiritual importance to the traditional owners.
[60] It is appropriate that the presumption of regularity be applied. Moreover it is also appropriate that the Tribunal take into account the evidence submitted by the grantee party (limited, though it is). Finally, the Tribunal has also taken into account the persuasive submissions of the government party, and particularly, the various protective provisions and procedures that apply under various laws of the Northern Territory to sacred sites.
[61] However, as Deputy President Sumner recently pointed out in Walley & Ors and Boddington & Ors/Western Australia/Giralia Resources WO01/179 and 180, unreported, 8 March 2002 at [51]: “In other matters, because of the number and nature of sites or because whole areas were regarded as of particular significance, the Tribunal has found that the expedited procedure was not attracted.” With respect to the first proposition he referred to the determination of Member Stuckey-Clarke in Wilma Freddie/Western Australia/Stephen Povey WO99/882, unreported, 19 December 2001. In that inquiry Member Stuckey-Clarke considered, inter alia, the grant of a proposed exploration licence (53/870) over an area where there were six sites recorded in the Interim Register of Aboriginal Sites in Western Australia. In her determination Member Stuckey-Clarke refers to evidence given by a native title holder about sites which were alleged to be of particular significance. The Member accepted that the native title holder was properly authorised to speak on behalf of the claim group. She made these observations which are of relevance to this inquiry (at [49]):
“In my view, the presumption of regularity does not lead me inexorably to find in this case that no such likelihood (of interference pursuant to section 237(b)) exists … In this matter, the grantee has given no evidence of his intention to comply with the Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers or any details as to how in fact he will proceed so as not to interfere with the important sites on the tenement. The area of the proposed tenement has been shown to be extremely site-rich: see Re Miriuwung and Gajerrong Peoples (1996) 128 FLR 90. In these circumstances, it is incumbent on the grantee to lead some evidence upon which the Tribunal might be assured that interference, intentional or otherwise, is not likely given the practical difficulties associated with avoiding interference with sites in extremely site rich areas. In conclusion, I find that the grant of exploration licence 53/870 is likely to interfere with sites or areas of particular significance.”
[62] In this inquiry the grantee party has chosen to rely on the contentions of the government party. Unlike some other inquiries I have conducted in the Northern Territory where grantee parties have submitted extensive evidence on their mode of operation and the nature of the proposed exploration activity, in this case no such material is before me. In the absence of any evidence of a grantee party’s intentions the Tribunal is entitled to proceed on the basis that the grantee party will, subject to the regulatory regime in force, fully exercise its legal entitlements. For the purpose of this inquiry, I have proceeded on that assumption.
[63] I am satisfied that there are a number of sites of particular significance to native title holders in the area of the proposed tenement. Furthermore, and despite applying the presumption of regularity, I am of the view that there is a likelihood of interference with some, or perhaps, all of those sites. The type of interference contemplated by section 237(b) may be in some circumstances only slight, and is of a different nature and degree to the interference contemplated by section 237(a). This is the case as the inquiry required by section 237(b) is into areas or sites of particular significance to native title holders in accordance with their traditions. The nature and sacredness of an area or a site must be evaluated from the prism of the traditions of the native title holders. Likewise the risk or likelihood of interference must also be evaluated from the perspective of those traditions.
[64] When evaluating the likelihood of interference pursuant to section 237(b), it is open to the Tribunal to take into account the sheer number of sites that have been recorded or registered by the AAPA. It is also open to the Tribunal to take into account other sites or areas deposed by persons giving evidence on behalf of the native title party that have not been so recorded or registered, but which, nonetheless, hold a particular significance to native title holders. There is no serious suggestion presented to the Tribunal that the evidence deposed to by either Mr Barney or Mr Manggari can or should be either disregarded or unduly discounted. I am satisfied that in the case of Mr Barney that he can speak on behalf of the native title claim group, and I further note that Mr Barney recognises the authority of Mr Manggari to speak on behalf of the Black Cockatoo Dreaming sites.
[65] I am satisfied that the area of the proposed tenement is site rich, and that those sites are so widespread, and are of such particular significance to native title holders, that, on the balance, it can be concluded that there is a real likelihood of interference pursuant to section 237(b).
Section 237(c) – Major disturbance to land or waters
[66] In view of my findings pursuant to section 237(b) it is not necessary to consider this issue.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22646 to AusQuest Limited, is not an act which attracts the expedited procedure under the Act. The objection is upheld.
John Sosso
Member
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