Ben Ward And Others on behalf of the Miriuwung & Gajerrong People; Button Jones on behalf of the Gudim People/Northern Territory/Ashton Exploration Australia Pty Ltd
[2002] NNTTA 15
•1 February 2002
NATIONAL NATIVE TITLE TRIBUNAL
Ben Ward And Others on behalf of the Miriuwung & Gajerrong People; Button Jones on behalf of the Gudim People/Northern Territory/Ashton Exploration Australia Pty Ltd, [2002] NNTTA 15 (1 February 2002)
Application No: DO01/03 and DO01/23
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of a Future Act Determination Application
Ben Ward And Others on behalf of the Miriuwung & Gajerrong People
and
Button Jones on behalf of the Gudim People (Native Title Parties)
- and -
Northern Territory of Australia (Government Party)
- and -
Ashton Exploration Australia Pty Ltd (Grantee Party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 1 February 2002
Hearing dates: 10, 22 October 2001, 5, 30 November 2001, 24 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 Jeff Wilkie
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – protocols for guidance of parties – parties contentions – whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – major disturbance to land or waters – protection under existing legislation – risk of environmental or cultural disturbance remote – an act which attracts the expedited procedure.
Legislation: Native Title Act 1993 (Cth) ss 77, 148, 151, 237
Cases: Cheinmora v Striker Resources NL (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Little v Western Australia [2001] FCA 1706
Maureen Young/Western Australia/South Coast Metals Pty Ltd WO00/402 Member Sosso 7 June 2001
Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13 Member Sosso 1 February 2002.
Northern Territory/Ben Ward & Ors/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 450
Western Australia v Smith (2000) 163 FLR 32
Wilma Freddie/Western Australia/Stephen Povey WO99/882 Member Stuckey-Clarke 19 December 2001
REASONS FOR DETERMINATION
Background
[1] On 13 December 2000 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 22332 (“the proposed tenement”) to Ashton Exploration Australia Pty 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 303 blocks (a block is approximately 2.9 square kilometres) and is comprised of the following Perpetual Pastoral Leases (“PPL”):- PPL 1013 known as “Rosewood”; PPL 1114 known as “Newry”; PPL 1081 known as “Auvergne”.
[3] Two Native title determination applications covering the area of the proposed tenement have been filed with the Federal Court. The application named “Newry Rosewood” (D6010) was filed on 8 February 2001 and was entered on the Register of Native Title Claims on 13 March 2001. The Applicant is Mr Button Jones. The application named “Miriuwung & Gajerrong #3” (DG6008/98) was filed 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.
[4] Form 4 (Objection to Inclusion in an Expedited Procedure Applications) were lodged with the Tribunal within four months after the section 29(4) notification day (13 December 2000) – section 32(3). The named Objectors are Mr Button Jones (lodged 9 April 2001), who is also the above named Applicant (Newry Rosewood) and Ben Ward and others (lodged 21 February 2001) who are the Applicants named above (Miriuwung & Gajerrong).
I have previously determined that the Form 4 Objections have been properly accepted by the Tribunal pursuant to section 77(2).
[5] Deputy President Sumner convened preliminary conferences of the parties on 3 May and 11 July 2001, and on the later date issued Directions for the conduct of the Inquiry. 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 and 22 October 2001, on 5 and 30 November 2001, and 24 January 2002. At the hearing on 30 November 2001 I made further Directions for the supply of material in this inquiry.
[6] At the outset the government party contended that the objection by Ben Ward (DO01/03) was invalid and should be dismissed pursuant to section 148. On 24 October 2001 I determined that the application of the government party could not be upheld, and the objection was validly made: see Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd DO01/03 24 October 2001, Member Sosso.
[7] 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”.
[8] The parties have submitted to the Tribunal extensive written contentions. As there were two individual Objections, all parties have lodged two series of documents, which in almost every instance are identical. For ease of reference the contentions referred to below relate to the Objection by Mr Button Jones on behalf of the Gudim People ( DO 01/23). Where there is a need to refer to the mirror contentions lodged with respect to the Objection made by Mr Ben Ward the letters (BW) will be inserted to signify that it relates to the Objection of Mr Ward (DO 01/03). The contentions are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 19-9-2001
Further Statement of Contentions (“GPFS”) dated 12-10-2001 (BW)
Contentions in Reply (“GPCR”) dated 17-10-2001
Final Contentions of the Government Party (“GPFC”) dated 21-12-2001
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 4-10-2001
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 17-10-2001
Response to Tribunal Matters (“ORTM”) dated 5-12-2001
Reply to Final Contentions of Government Party (“ORFC”) dated 23-01-2002
Grantee Party Contentions
Response to Government Party’s Contentions (“Gr1”) dated 9-10-2001.
Evidence
[9] The native title party lodged with the Tribunal three almost identical Affidavits for the purposes of both objection applications, namely:
Affidavit of Ben Barney dated 16 September 2001;
Affidavit of Birrbi Manggari dated 16 September 2001; and
Affidavit of Laurie Roberts dated 16 September 2001.
[10] Both Mr Barney (at para 1) and Mr Manggari (at para 1) deposed that they were members of the Newry-Rosewood native title claim group. Mr Roberts deposed (para 1) that he was a Ngarinyman man.
[11] None of the material adduced by the native title party in the Miriuwung and Gajerrong #3 Application is from a person who identified themselves as a member of that claim group. In addition the area of the Application does not include all of the area of the proposed tenement. It covers only the north western segment of ELA 22332, with the remaining southern and eastern segments included within the Newry-Rosewood Application. However there is no overlap between the two, as the Newry-Rosewood Application is specifically defined (inter alia) to include those areas subject to “(c) an application for an exploration licence under the Mining Act (NT), numbered 22332 (in respect of which a notice has been issued under section of the 29 of the NTA, at the date of the application), excluding the area covered by Ben Ward & Ors v Northern Territory of Australia (as amended 21 October 1999) claim (DG6008/98) (DC95/1).”
[12] The Affidavit of Laurie Roberts is of no ostensible assistance to the Miriuwung and Gajerrong #3 matter. Mr Roberts says that he is a Ngarinyman whose country goes west to Sugarbag Bend Yard and to the West Baines River. This is country to the east of the Miriuwung and Gajerrong #3 Application. None of the locations or sites referred to by Mr Roberts falls within this area, they are all to the east.
[13] I have given very careful consideration to the Affidavits of Ben Barney and Birrbi Manggari to determine if those persons, who did not identify themselves as members of the Miriuwung and Gajerrong #3 claim group, can be relied upon. Despite the lack of detailed mapping, it would appear that both gentlemen refer to areas and sites that fall within the area of the Miriuwung and Gajerrong #3 Application. Moreover, in the list of registered claimants of the Miriuwung and Gajerrong #3 Application, there is both a Mr Ben Barney and a Mr Button Jones. Mr Jones is the Objector on behalf of the Newry-Rosewood Application. I have worked on the assumption that Mr Barney is a member of both native title claim groups.
[14] The other issue, though, is the evidentiary worth of those Affidavits for the Objectors. There is no material before the Tribunal that the Miriuwung and Gajerrong #3 claim group have authorised Mr Manggari to speak on their behalf. The status of this gentleman to speak for country subject to the Miriuwung and Gajerrong #3 claim has not been made clear.
[15] With respect to the Newry-Rosewood Application, the government party quite rightly pointed out (GPCR at para 7) that it was not clear if Mr Roberts was a member of the Gudim People native title claim group. Likewise there is no indication that if Mr Roberts is not a member of the Gudim People native title claim group that he is authorised to speak on its behalf. It is not necessary that he be such a member, he could be providing evidence to assist the objection in his capacity as a separate native title holder. However, in weighing up his evidence, it is obviously important to know on what basis the evidence is being provided.
At the Listings Hearing on 24 January 2002 I invited the legal representatives of the native title party to inform the Tribunal of the relationship of Mr Roberts to both native title claim groups, whether he was authorised to speak on behalf of either or both of them and generally his status to speak on behalf of the relevant land or waters. In short, I was looking for some clarification about Mr Roberts so that the Tribunal could properly appreciate his evidence and give it the appropriate weight.
On 1 February 2002 Mr Mark Rumler, a solicitor with the Northern Land Council, wrote in the following terms to the Tribunal with respect to DO01/23: “We confirm our instruction that Mr Robert (sic) is a native title holder for the area subject of the within matter and is authorised to speak on behalf of the country.”
Unfortunately this letter does not advance the matter any further. The Tribunal has not been informed whether Mr Roberts is a member of either native title claim group, and if he is not, then on what basis he is speaking for the relevant land and waters. All that the Tribunal has before it is a bald assertion that he is a native title holder and he is authorised to speak on behalf of the country. The basis of that authorisation and on behalf of whom has not been clarified.
[16] In this regard it is relevant to refer to the recent decision of R D Nicholson J in Little v Western Australia [2001] FCA 1706. His Honour was dealing with an appeal from an expedited procedure objection determination of Deputy President Franklyn. One issue that arose concerned the weight to be placed on the Affidavit of Mr Bynder. Outlined below are relevant extracts from His Honours judgment ([78]-[79]):
“78. In relation to “areas” and turning to the Affidavit of Mr Bynder, that is an affidavit which suggests there is a sacred quality attached to the entirety of Lake Moore. For the Grantee it is submitted that for three reasons it could not reasonably form the basis of a conclusion by the Tribunal that the grant of the exploration licences would be likely to interfere with areas or sites of particular significance, in accordance with the traditions of the applicants for several reasons. The first is that Mr Bynder fails to establish that he is properly qualified to speak about the applicants’ traditions in relation to areas or sites of significance …
79. As to the first point, it is the case that Mr Bynder does not establish his qualifications to speak for the Badimia people so that his evidence has the weight of one Badimia person.”
[17] Consequently the weight that can be placed on the evidence presented to the Tribunal by the Objectors has to be evaluated in light of these circumstances.
[18] The Affidavits of the abovementioned gentlemen are set out below:
Affidavit of Ben Barney
“1. I am a member of the native title claim group in the Newry-Rosewood native title determination application (D6010/01), on behalf of the Gudim People.
2. The area of the application includes part of the area of the ELA 22332. I have seen a map of the area of the ELA. Now produced and shown to me marked “BB-22332” is a map of the ELA and surrounding area.
3. 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.
4. 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, Four Mile; Red Creek; Eight Mile; and Ben Ward’s community at Cockatoo Spring.
5. At Newry, there’s a hill called Gurdim, and a waterhole called Murnamurum. Gurdim is the hills that go back to Dingo Gap. Yarurryawurrum is the Dingo Dreaming at Dingo Gap. He’s a private Dreaming for man, standing up there. The mining company can go there but they can’t do any digging. 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, 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 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.
11. There are some places which are more sacred that (sic) 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. If the mining mob go to places 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.
13. 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.
Affidavit of Birrbi Manggari
“1. I am a member of the native title claim group in the Newry-Rosewood native title determination application (D6010/01).
2. The area of the application includes part of the area of ELA 22332. I have seen a map of the area of the ELA. Now produced and shown to me marked “BM-22332” is a map of the ELA and the surrounding area.
3. 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.
4. The Black Cockatoo Dreaming (Warlugbin) goes to a place on Blackfellow Creek called Jilarndim; then he turns back and goes to Cross Keys Well, Schoolboy Creek, Mount Duncan, which is called Girlirrangin, just up 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. Duldul Dreaming - that’s the Bush Pheasant – has got two rocks at Kinevan’s Yard: there’s pretty rock in the creek there. There are hills all around, sandstone. That place makes you go grey – we didn’t use to listen to those old people and now I’m all grey. There’s a Burlga Dreaming there, Grey Whiskers.”
Affidavit of Laurie Roberts
“1. I am a Ngarinyman man. My country goes west to Sugarbag Bend Yard, to the West Baines River; this is my jawiji country, my mother’s father’s country. I speak with Ronny Balwanyja for that country.
2. I have been told that a mining company wants to explore in the area of ELA 22332. I have seen a map of the area of the ELA. Now produced and shown to me marked “LR-22332” is a map of the ELA and the surrounding area.
3. My family and I stay at BarrakBarrak on BarrakBarrak Creek. I’ve got a block there. There are a lot of people there, family.
4. There is another camp at Bulla, near Auvergne Station; all the same family. My mum stops there with my cousins. My uncle was the owner for that country and got the land for the community.
5. People live at Timber Creek. Mulurn is a camp close to town where we stay. There is the same family mob there.
6. The mining company can’t go to any sites. I don’t like the mining company going down there; it’s very important country. If they change the ground, we won’t see him again for a long time now. The ground will change. If they make it look like new, I don’t want it that way.
7. When I go hunting I go right up to Hector Hole Yard. I go with a motor car. I go fishing with a spear or a wire. We get water-goanna with a spear, or dig for bush yam. We also get bream, turtle, barramundi, catfish. We go to Brumby Hole on Snake Creek. I go once a year. I have not been yet this year. My mother tells me she goes fishing at Snake Creek, Brumby Hole.
8. From my block I go to Timber Creek, Brumby Hole, Hector Hole, Bloodwood Swamp, Bulla camp. We go across the country following fence lines; there are a lot of tracks everywhere from Auvergne Station.
9. There’s Mordmord on the ELA. At that place, an old man ate all the sugarbag for two brolgas, Gudarrg. He ran back for water but the brolgas took it away and so he just fell down and crippled himself. Later, the little NawurlaNawurla left-hand sand frog hit the coolamon and the water came back. Mum knows that story. Mordmord is right up in the gorge for Gipsy Creek in the middle of the sandstone. The mining company can go there and dig stuff up; it is just the story. It’s not as important as the Flying Fox, Dingo, Goanna, and Emu sites.
10. Emu Dreaming is to the west halfway to the West Baines River.
11. Lawirrabi, Cocky Yard, is right in the sandstone, east from Stewarts Yard. There is a Flying Fox ceremony at Lawirrabi. We have to stop the company from going there. Blue Mud Waterhole, Two Bob Yards and Brumby Hole are all the same Flying Fox Dreaming, Warrba.
12. I go once a year to Blue Mud Waterhole. I have not been there this year yet. Mum tells me to go. Mum goes to Sugarbag Bend Hole, Blue Mud Waterhole, Brumby Hole, Two Bob any time. Sometimes she goes Saturdays. She told me. There’s a good manager on Auvergne, Alan Andrews, who doesn’t mind that we go there all the time. We get turtle and lily. We get turtle from the mud.
13. They’ve got to tell us what they are doing in that country. We might tell them to go away. After they finished, the country will not look the same. The hunting ground might be different. The wildlife might get poisoned from drinking at the waterhole, and nothing will be left. We won’t go there. Some animals might get short.
14. Now, we are getting bush food. There are lots of wild animals. We get kangaroo and turkey with a gun. We don’t see emu and porcupine now; we don’t know what’s killing them. We’ve got to save the animals.
Land Claim Report
[19] The native title party also relied on certain findings by Mr Justice Olney in his capacity as Aboriginal Land Rights Commissioner in the Amanbidji Land Claim Report No 46 (hereafter referred to as “the Land Claim Report’).
[20] The native title party has supplied to the Tribunal, and the other parties, only very short extracts from His Honour’s Report – pages 11 and 12. The material supplied by the native title party did not disclose:
(a) the area of the claim;
(b) the persons found by Olney J to be traditional owners; and
(c) the relationship between the Ngarinyman People and the Miriuwung and Gajerrong Peoples and the Gudim People.
[21] In other inquiries when the Tribunal has been presented with only very short extracts from Land Claim Reports, I have been prepared to accept them into evidence only after I read the whole of the Report and was satisfied that it was reasonable to do so. In this inquiry the government party made the following submissions (GPCR at para 7(a)): “the correlation between the traditional owners as identified and the Amanbidji Land Claim Report and the Gudim native title claim group is unknown and, even in the event that there was a correlation, the extracts are of little, if any, relevance to the enquiry of the Tribunal in the Expedited Procedure.” - Also GPCR(BW) at para 7(a).
[22] As in other inquiries I have obtained a copy of the full Report of the Aboriginal Land Commissioner and perused same. Unlike other inquiries where it was patently clear that the extracts adduced by the native title party could fairly be accepted into evidence because of their relevance, the same cannot be said about this Land Claim Report. The relationship between the traditional owners in this Report and the native title claimants in this inquiry is unclear. Certainly the native title party has produced no material to assist the Tribunal in this regard. Accordingly I accept the submission of the government party that the extracts of the Land Claim Report are not of relevance to this inquiry and I have accorded the extracts provided little or no evidentiary weight.
Aboriginal Communities
[23] The native title party contends that there are several communities in the vicinity of the proposed tenement which are occupied by members of both claim groups, namely:
(a) Timber Creek, along the Victoria Highway to the east of the proposed tenement;
(b) Kildurk on the Nagurunguru Aboriginal Land Trust which borders the south eastern portion of the proposed tenement;
(c) Three communities in the Northern Territory on the north side of the Keep River: Bubble Bubble (Damberam), Bucket Springs (Binjen) and Police Hole;
(d) Communities in Western Australia between the border and Kununurra, including Ngaliwiriwir, Four Mile, Red Creek, Eight Mile and Mr Ben Ward’s community at Cockatoo Spring; and
(e) Kununurra in Western Australia.
[24] It would appear that the closest community to the proposed tenement is Kildurk which is located approximately 10-15 km south east of the proposed tenement. No other community is apparently located within 30 km of the proposed tenement.
Registered or Recorded Sites
[25] The evidence before the Tribunal discloses that there are three sites recorded by the Aboriginal Areas Protection Authority (“AAPA”) which are located within the area of the proposed tenement. Two of the sites are in the extreme eastern portion of the proposed tenement while the third is in the central portion just to the north of the border with the Nagurunguru Aboriginal Land Trust.
[26] In addition there are a number of sites both registered and recorded by the AAPA in the area immediately adjacent to the proposed tenement. Two registered sites are located on the Nagurunguru Aboriginal Land Trust, while a further five recorded sites are on the Trust but located in very close proximity to the area of the proposed tenement. There are also two recorded sites close to the south eastern boundary of the proposed tenement: one on pastoral lease land, and the other on land owned by the Marurrum Aboriginal Corporation.
[27] To the north of the proposed tenement there is a cluster of five recorded sites on PPL 1081 to the west of Gipsy Creek.
Previous Exploration Activity
[28] The government party has disclosed that there are no current mining tenements covering the same area as the proposed tenement.
[29] The only previous mining activity on the area of the proposed tenement has apparently been in the form of Exploration Licences (“EL”). The following EL’s have been granted over the same area: EL 1979, 2236, 2238, 2292, 2294, 5527, 5528, 5529, 6616, 7656, 7659, 8673, 8915, 9009 and 9101.
[30] Maps produced by the government party disclose that the previous exploration licences covered, cumulatively, the whole area of the proposed tenement. Despite this, exploration activity has not occurred throughout the proposed tenement, with previous exploration activity having been primarily located in the far eastern section (of the “pan handle”) and with far lesser activity having occurred along the south eastern border with the Nagurungur Aboriginal Land Trust. It would appear that this exploration activity was limited to stream sediment sampling and occurred in 1997.
[31] In the immediate vicinity of the proposed tenement there is only one current mining tenement, namely EL8915 (granted to Ashton Mining Limited) which is located in the east of the proposed tenement to the south of the pan handle section.
Nature of the Proposed Exploration Activity
[32] The grantee party supplied the following information to the Tribunal on the nature of the exploration it intends to carry out under the proposed tenement (Gr1 at p2):
“Rio Tinto’s intention is to initially conduct a regional diamond sampling program. This involves collection by hand of drainage samples from creek and river systems and analysis of these samples in a laboratory.
Depending on the results of this initial work follow up gravel sampling would be carried out and if further positive diamond indicators were found a geophysical survey would be proposed. If any identifiable features were considered prospective drilling of these features would be considered.”
[33] This information is consistent with that provided by the grantee party in its “Application for the Grant of an Exploration Licence” which was provided to the Tribunal by the government party. In that document the grantee party provided this information on its proposed work program:
“4.1 Proposed work program:
The application area lies in a region considered prospective for diamondiferous kimberlites. The licence area will be systematically explored by staged exploration involving reconnaissance stream and loam sampling, airborne geophysical surveys and landsat interpretation.
4.3 Detail of work program for subsequent years:
Subsequent stages would involve follow-up sampling and drill testing by Rotary Air Blast (RAB) and Reverse Circulation (RC) of any anomalous results. The extent of further work will depend upon results obtained in preceding years.”
[34] The native title party contended (OSC at paras 17-20) that the grantee party had not provided any details of its currently proposed work program other than that contained in the Application Form set out in [33], and that the Tribunal should decide the objection on the basis that the grantee will exercise all rights available to it.
[35] As indicated, the grantee party has supplied information on its intentions if the exploration licence is granted. In these circumstances it would not be appropriate to presume that the grantee party will exercise all of the rights available to it.
Legal Principles
[36] 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 DO01/13 1 February 2002.
[37] 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
[38] Each native title party contended (OSC at para 44) that the community or social activities of the respective claim groups included:
(a)foraging, with reliance placed on the findings in the Land Claim Report;
(b)hunting, fishing and gathering of bush tucker – Affidavit of Ben Barney at para 9 and Affidavit of Laurie Roberts at paras 7, 8, 12 and 14;
(c)teaching about the significance of areas or sites – Affidavit of Laurie Roberts at para 9;
(d)quiet enjoyment and camping grounds – Affidavit of Ben Barney at para 9; and
(e)actively looking after country by visiting and maintaining sites.
[39] The government party (GPCR at para 12) pointed out that the various communities outlined by the native title party which were asserted to be in the vicinity of the licence area were not identified in the maps supplied by the native title party and the distance between these communities and the proposed tenement was not specified.
[40] With respect to the community or social activities outlined at [38] the government party contended:
“As to paragraph 44, the claimed community or social activities are said to occur ‘over some or all of the licence area’. The lack of particularity makes it impossible for the Tribunal to attribute any evidentiary weight to the assertions. The specific locations that the activities are said to occur are not identified, the overall range where such activities are carried on is not stated; the seasonal variations in the game, the number of persons engaged in these activities; all are unstated.”
[41] In addition, the government party said (GPCR at para 15) that Mr Roberts seemed to suggest in his Affidavit that an excursion occurs “once a year” and Mr Barney stated “[w]e used to walk from Newry to Kildurk, holiday time and camp all round” with the implication being that such an excursion had not occurred for some time.
[42] The grantee party (Gr1 at p 4) contended that its planned activities had the following characteristics:
· “are confined to well spaced sampling and prospecting activities including aerial surveys,
· are limited to the area of the Exploration Licence boundaries,
· are limited to the dry season and are periodic and short term,
· governed by strict legislative compliance, prior approval, and
· conducted under strict environmental guidelines.”
The grantee party also informed the Tribunal that it undertakes appropriate meetings with the local community and traditional owners to discuss planned activities and clear proposed work areas.
[43] The Affidavit of Mr Roberts presents some difficulties for the Tribunal. He deposes to hunting and fishing up to Hector Hole Yard as well as (once a year) at Brumby Hole on Snake Creek (paragraph 7). In addition Mr Roberts’ mother fishes at Brumby Hole. Unfortunately, none of these locations appears on the map supplied by the native title party. Certainly it would appear that none of these places is located within the area of the proposed tenement.
[44] Mr Roberts did depose (at para 12) to going once a year to Blue Mud Waterhole (although he had not visited the waterhole at that stage in 2001). Blue Mud Waterhole is marked on the map supplied by the native title party and is located approximately 10 km north of the proposed tenement. He also deposes to his mother going to Sugarbag Bend Hole, Blue Mud Waterhole, Brumby Hole and Two Bob Yards “any time”. Again none of these places are marked on the map of the proposed tenement supplied by the native title party. There is a Sugarbag Bend Yard which is just in the proposed tenement, and I will assume that the Sugarbag Bend Hole Mr Roberts refers to is located nearby. It is clear from Mr Roberts statement when he says that his mother “told me” that she visits these places, that he does not necessarily accompany her. This conclusion is even more likely because while Mr Roberts indicates that while his visits are not regular (he refers to once a year), his mother’s visits are much more frequent (“sometimes she goes Saturdays”). Unfortunately, the Tribunal was presented with no direct evidence from Mr Roberts’ mother as to these matters. Whether in fact Mr Roberts’ mother does visit the various sites as frequently as he believes, what she does when she visits them and who accompanies her, are matters on which there is no primary evidence before the Tribunal.
[45] The only relevance of the Affidavit of Mr Barney to a section 237(a) inquiry is his statement in paragraph 9 that: “We used to walk from Newry to Kildurk, holiday time and camp all around.” Who the “we” is, is never explained. In addition, as the government party contends, it would appear that Mr Barney is deposing to past activity as he does not refer to walking and camping around as an ongoing activity. It should also be noted that neither Newry or Kildurk are within the proposed tenement. It may well be that when Mr Barney and others were walking that they camped in the proposed tenement as it is between these two locations. However, exactly where in the proposed tenement, for how long, when and what activities were (or are) engaged in is not specified.
Finally, Mr Manggari’s Affidavit contains no material that is of applicability to section 237(a).
[46] The government party has supplied the Tribunal with detailed submissions on the mining and environmental regime in place in the Northern Territory which it contends has relevance to the issue of determining the likelihood of interference with community or social activities. I have taken those submissions into account. The native title party has likewise put before the Tribunal extensive and substantial submissions on these matters. I have also considered those. However, these contentions have to be considered in light of the primary evidence before the Tribunal. The primary evidence on the issue of likely interference with community or social activities is scant.
[47] There simply is not enough evidence from the native title party about the nature and extent of community or social activities for the Tribunal to determine that there is a likelihood of interference within section 237(a).
The Tribunal does not, for example, have any evidence before it about the community at Kildurk, which is located in relatively close proximity to the proposed tenement, other than its existence. No evidence was led as to how many people live there, whether they visit the proposed tenement, whether they rely on water from the proposed tenement etc. The evidence of Mr Roberts and Mr Barney in the context of section 237(a) is vague, and, if anything, points towards community and social activities on the proposed tenement which are intermittent and geographically localised.
The task required of the Tribunal is to determine if “the proposed act..would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.” Per French J Smith v Western Australia (2000) 108 FCR 442 at 450. The facts before the Tribunal indicate that insofar as there is evidence of community or social activities:
(a)they extend beyond the proposed tenement, and that area of the proposed tenement forms only a part of a much wider area of traditional activities;
(b)they are intermittent (Mr Roberts deposing to annual visits) and of relatively short duration;
(c)there is no suggestion that previous exploration or mining activity has had a deleterious impact on them; and
(d)there is no suggestion that ongoing pastoral activities negatively impacts upon them.
In the circumstances, I am of the view that there is insufficient material before the Tribunal for any holding that there is a real chance that the grant of the proposed tenement will directly interfere with the carrying on of community or social activities of the holders of native title in relation to the land or waters concerned.
Section 237(b) – Areas or sites of particular significance
[48] As previously pointed out, the area of the proposed tenement contains three sites that have been recorded by the AAPA. In addition, the native title party contended (OSC at para 53) that the following areas or sites of particular significance were likely to be interfered with:
(a)Jiilim – Affidavit of Ben Barney at para 7;
(b)Ngalanyanim – Affidavit of Ben Barney at para 8;
(c)Jilarndim – Affidavit of Ben Barney at para 10, Affidavit of Birrbi Manggari at para 4;
(d)Mordmord – Affidavit of Laurie Roberts at para 9; and
(e)Lawirrabi, Blue Mud Waterhole, Two Bob Yards and Brumby Hole – Affidavit of Laurie Roberts at para 11.
[49] The site referred to as “Jiilim” by Mr Barney is, according to the native title party, the AAPA recorded site “Jiyilm”, which is outside of the proposed tenement – approximately 5 km north of the north west boundary. The site referred to as “Mordmord” by Mr Roberts is, according to the native title party, the recorded site “Makmak”, which is situated on the proposed tenement in the area east of the West Baines River near to the far eastern boundary.
[50] The government party drew the Tribunal’s attention to the regulatory regime in force in the Northern Territory designed to protect sacred sites and concluded (GPCR at 24):
“In conclusion as to paragraph 237(b), there is an absence of evidence which could allow the Tribunal to conclude in the contextual risk assessment that – when other relevant factors are borne in mind including the overall regulatory scheme – it is likely there is real risk of substantial and proximate impact to an area or site of particular significance in relation to the land or waters concerned.”
[51] The grantee party informed the Tribunal that areas of particular significance will be identified in consultation with traditional owners, and that it undertook to comply with the Northern Territory Aboriginal Sacred Sites Act 1989. In addition (Gr1 at p 5): “No field work will be conducted until a work program clearance heritage survey is conducted by either the Aboriginal Areas Protection Authority or the relevant land council or representative body.”
[52] The bulk of the evidence of Mr Manggari would appear to relate to sites that are located outside of the proposed tenement. When drawing the Tribunal’s attention to Black Cockatoo Dreaming sites, he refers to a place on Blackfellow Creek called “Jilarndim”. No such site is on Blackfellow Creek is recorded by the AAPA, and the native title party has failed to specify whether this site is inside or outside the boundary of the proposed tenement. Blackfellow Creek does intersect the proposed tenement, however all of the other sites mentioned by Mr Manggari – Cross Keys Well, Schoolboy Creek and Mt Duncan are located to the south west of the licence area.
[53] Mr Manggari says that the grantee party cannot drill at any of these Black Cockatoo Dreaming sites. However, as they appear to be located outside of the proposed tenement, his concerns are not apposite to this inquiry.
[54] Mr Manggari also refers to the Duldul (Bush Pheasant) Dreaming, with two rocks at Kinevan’s Yard. Kinevan’s Yard would appear to be located in the south east of the proposed tenement near Kildurk Creek. The importance of this site, however, is not expanded upon by Mr Manggari.
[55] Mr Roberts recounts the story of Mordmord (at paragraph 9 of his Affidavit). As mentioned, Mormord is a recorded site on the proposed tenement. However, he goes on to say: “The mining company can go there and dig stuff up; its just the story. It’s not as important as the Flying Fox, Dingo, Goanna and Emu sites.” I take it from this evidence that while Mordmord is a site of significance in accordance with the traditions of the native title holders, it is not a site of particular significance, as that term was explained by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 21.
[56] The location of the other sites referred to by Mr Roberts is not clear. Lawirrabi is said to be east of Stewarts Yard, which is approximately 3 km south of the proposed tenement to the east of the West Baines River. It would appear most likely, then that Lawirrabi is likewise to the south of the proposed tenement. There are in this immediate locality two sites (numbered 21 and 22) recorded by the AAPA. Blue Mud Waterhole is about 10 km north of the proposed tenement. The location of Two Bob Yards and Brumby Hole is not certain; they are not marked in the area of the proposed tenement on the maps supplied by the native title party.
[57] The Affidavit of Mr Barney is also problematic. At paragraph 5 he refers to a hill called “Gurdim”, and he says that it goes back to Dingo Gap There is no such location on the area of the proposed tenement disclosed by the map provided by the native title party. Moreover I could not find any such location in the general locality of the tenement, although north west of Newry station there is a Dingo Creek. Mr Barney refers (at paragraph 6) to various places in the area of Argument Gap where the Victoria Highway and Saddle Creek go through. This would appear to be an area approximately 20 km north of the proposed tenement. The map supplied by the government party which discloses sites recorded or registered by the AAPA does not extend this far, and, as such, I cannot determine if the sites mentioned have in fact been recorded or registered. Nevertheless it is clear that these areas fall quite some distance outside of the proposed tenement.
[58] The site Mr Barney refers to as Jiilm is a recorded site located 10 km south-east of the Newry homestead and around 3 km north of the proposed tenement. Mr Barney’s concern that the grantee party not touch the spring or trees located at this site is understandable, however as it falls outside of the proposed tenement area there is no real risk of any such interference.
[59] Reference was also made by Mr Barney to a site he refers to as “Ngalanyanim” near Blackfellow Creek where there is a bottle tree “Gardawuny”. He says that it is a sacred place. However he goes on: “They can work further down Blackfellow Creek”. There is in fact a recorded site near Blackfellow Creek (no 30) referred to as Pitjpum where there is a boab tree. No other boab sites are recorded on Blackfellow Creek on or near the proposed tenement from the information supplied to the Tribunal. If this is in fact the site referred to it is outside of the proposed tenement. Mr Barney’s reference to the grantee being able to work further down Blackfellow Creek in this context, may, in fact, be referring to that part of Blackfellow Creek that flows through the proposed tenement. I make no finding on this matter, other than to note that it is not clear where this site is located, and that the native title party has not put forward any material indicating that it is located in the tenement area.
[60] The final reference to sites made by Mr Barney is to Jilarndim, which was also mentioned by Mr Manggari. Of interest is that Mr Barney refers to this site in the context of a location near the Keep River (not Blackfellow Creek). The Keep River, on the map supplied by the native title party, flows just outside of the north western boundary of the proposed tenement. In this particular area it would appear that both the Keep River and Blackfellow Creek are in very close proximity.
[61] In summary, although there is a considerable body of evidence of sites of significance to the deponents, there is little evidence of sites located within the area of the proposed tenement. Indeed one of the few sites mentioned in this area, Mordmord, is then described by Mr Roberts as not as important as other sites and he specifically says that the grantee can go there and “dig stuff up”.
[62] The task given to the Tribunal in an expedited procedure objection inquiry is to determine if there is a likelihood that areas or sites of particular significance are likely to be interfered with. It is not necessary that those areas or sites be located on the proposed tenement: see Scotty Birrell & Ors/Western Australia/ John Booth WO99/574 Deputy President Franklyn 25 September 2000 at p 6. The focus of the inquiry is the risk of interference, and is possible that areas or sites physically outside of a tenement may, nonetheless be impacted upon by the activities of a grantee on site. Moreover the type of interference which the attention of the Tribunal is directed towards is necessarily different from that envisaged by section 237(a). In my opinion a site of particular significance could be interfered with even though the level of interference is slight. The object of paragraph (b) is the protection of sacred sites, and a higher standard is required than with respect to interference with community or social activities, because of the importance and sacredness of the areas or sites involved.
[63] However, the inquiry required by section 237(b) is towards discrete geographic locations. It would be very rare indeed that a native title party could say that the whole area of a proposed tenement is an area of particular significance. However, in certain circumstance this could occur, and the larger the area of a proposed tenement covered by an area of particular significance, the greater is the likelihood that section 237(b) will be activated – see Maureen Young/Western Australia/South Coast Metals Pty Ltd WO00/402 Member Sosso, 7 June 2001.
[64] In this matter there is no material before the Tribunal indicating that there are any areas or sites of particular significance to native title holders within the area of the proposed tenement. However, even if I accepted that there were, and further, that I accepted that there were areas and sites of particular significance located in the vicinity of the proposed tenement, the Tribunal has to consider the following matters:
(a)the evidence of the grantee party that no field work will be conducted until a work program clearance heritage survey is conducted;
(b)evidence adduced by the government party about a range of legislative provisions aimed at protecting sites of significance (which is of wider application than simply sites of particular significance); and
(c)the presumption of regularity.
In addition there are also the following factors:
(a)I am satisfied, on the balance and considering all the material before me, that the legislative protections under the Northern Territory legislation are effective and not illusory; and
(b)I am satisfied that so far as this inquiry is concerned, there are no inaccuracies or deficiencies in the AAPA’s sites register such that the information provided on sites recorded or registered can be relied upon as being accurate.
[65] The material before the Tribunal is such that I am unable to find that there is a likelihood of interference to areas or sites of particular significance pursuant to section 237(b).
Section 237(c) – Major disturbance to land or waters
[66] The native title party made these submissions regarding concerns related to section 237(c) (OSC at para 72):
“The objectors are concerned about major disturbance to land or waters within or in the vicinity of the licence area:
a. Ben Barney is concerned about:
i.the company wrecking the country if they find anything [9];
ii.the mining mob telling him to get out of his country [12]; and
iii.the company making a big mess, taking away the ground and the trees [13].
b. Laurie Roberts is concerned about:
i.the company changing the ground, making it look like new [6]; and
ii.poisoned animals from drinking polluted water [13], and losing the animals [14].”
[67] The government party made these submissions (GPCR at para 32):
“The evidence simply does not establish how, where and why the major disturbance speculated upon by the Objector is likely to occur. The fears and concerns stated in the affidavit materials relate to highly speculative scenarios. The use of explosives is very rare in minerals exploration, the use of poisons generally is highly controlled, the indiscriminate slaughter of wildlife is prohibited by the general law; these are highly circumscribed activities of which the grantee will disavow any intention. Please refer to relevant Second Schedule Conditions.”
[68] The Tribunal has been presented with detailed evidence from the government party on the regulatory regime in force in the Northern Territory which governs the exercise of rights under an exploration licence and for the rehabilitation of sites.
In particular the government party has highlighted the many conditions which exploration licences are subject to under various sections in the Mining Act. Reference was made by the government party to the Second Schedule Conditions. These are conditions imposed on exploration licences by the Minister pursuant to section 24A. The standard form of those conditions has been received into evidence. Some relevant conditions include requirements that the explorer:
a. carry out activities so as to minimise any impact to any extant native title rights and interests in the licence area (condition 1);
b. carry out activities in such a way as to minimise disturbance to the environment of the licence area (condition 2);
c. does not bring firearms or traps onto the licence area and not take or kill any wildlife (condition 3);
d. ensure that all structures, facilities, survey markings or other related infrastructure to be of a temporary nature and removed at the completion of exploration unless otherwise approved (condition 4);
e. does not construct new vehicle tracks unless unavoidable (condition 5)
f. keep clearing and/or disturbance to vegetation of a minimum (condition 6)
g. remove all rubbish and waste from the licence area (condition 14);
h. take all precautions to prevent contamination of underground and surface waters in the licence area (condition 15);
i. choose drillhole and excavation sites to minimise environmental impact and after completion of drill holes, the collar to be sealed off and casing plugged or capped (condition 17);
j. shall prior to commencing exploration activities convene a meeting on the licence area (or nearest convenient locality) with registered native title claimants to explain the exploration activities and have regard to representations made at that meeting (condition 18).
[69] In its Final Contentions (GPFC at para 25) the government party contended:
“The Second Schedule Contentions are purpose-built to address s.237 NTA issues and are relevant to all three paragraphs of that section. In the Objectors’ Reply it is stated:
‘The Second Schedule Conditions are not enforceable by the Objectors. Any concerns about compliance with them must be raised with the Government party and dealt with in its discretion.’
The Tribunal’s attention is drawn to s.166A Mining Act which makes conditions imposed in relation to native title rights and interests as having effect and capable of being enforced ‘as if they were terms of a contract among the parties.’”
[70] The Tribunal has also not been presented with any evidence suggesting that exploration activity on the proposed tenement, or on any adjacent country, has caused or involved major disturbance. One can compare the evidence before the Tribunal in this inquiry with that considered by Member Stuckey-Clarke recently in Wilma Freddie/Western Australia/Stephen Povey WO99/882 19 December 2001. There the Tribunal was presented with evidence that exploration activity nearby had interfered with water sources and wildlife and created respiratory problems in communities from dust generated from the use of heavy equipment. Here, no such primary evidence has been led.
[71] One issue that did arise concerned some evidence given by Mr Foy before Member Stuckey-Clarke on 4 December 2001. Mr Foy was the author of a document “Exploration activities” which has been submitted by each native title party who is represented by the Northern Land Council. Mr Foy’s testimony before Member Stuckey-Clarke, was, by consent, admitted as evidence in this inquiry.
[72] Mr Foy testified about the production of dust from drilling. He indicated that the level of dust generated was dependent on a number of factors including the level of the water table, the type of subterranean rock, the drilling equipment and prevailing wind conditions. On a worst case scenario he testified that dust could be created by drilling that could coat everything within a 20 to 30 metre radius with a white powder. The government party contended (GPFC at para 15): “Mr Foy concedes that his example is extreme, and more importantly he provides no evidence, in relation to the proposed licence area, as to the factors he identifies as relevant to the level of production of dust.” In response, the native title party contended (ORFC at para 10) that “at least part of the licence area is likely to have a low water table, and, therefore, to give rise to dust upon drilling.”
[73] The grantee party has indicated that if drilling does occur it will not take place until after the first year. There is also evidence before the Tribunal that it is quite common for exploration to be abandoned after the initial phase has concluded.
[74] In this inquiry the Tribunal has been presented with no evidence about the water table on the proposed tenement. No evidence has been led about the type of subterranean rock or any other matter that might be relevant in making an assessment of whether there is a real and not remote chance of substantial disturbance occurring. Indeed, even if there was evidence of a low water table and of soft subterranean rock (such as limestone) which would be prone to generate dust, this still would not necessarily lead to a conclusion of the likelihood of substantial disturbance. For such a finding to be made there would have to be some evidence that native title holders would be likely to be affected by that dust, or that fauna or flora would be harmed. Again, there is scant evidence of community or social activities on the proposed tenement, and no evidence that drilling in the locality has killed or harmed wild life. Mr Roberts deposes that emu and porcupine are now rarely seen but he says: ‘we don’t know what’s killing them”. Certainly there is no evidence that any exploration activity has had that effect.
[75] In making a predictive assessment, the Tribunal is required to undertake a risk assessment “that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.” – Smith v Western Australia (2001) 108 FCR 442 at 450 per French J. This inquiry has not been presented with any evidence of
(a) previous deleterious mining or exploration activity on or in the vicinity of the proposed tenement,
(b) information in regard to the geological composition of the subsoil,
(c) the level of the water table,
(d) prevailing wind conditions,
(e) those parts of the tenement regularly accessed by native title holders or
(f) those persons who rely on the waters, soil, fauna and flora of the proposed tenement.
To make a predictive assessment that there is a real risk or chance of major disturbance there must be a level of evidence to found such a conclusion. This inquiry has not been presented with such evidence.
[76] There is no doubt that the persons providing Affidavits have some concerns about the possible impact of mining exploration. I have no reason to doubt that those concerns are genuine and deeply felt. However, the Tribunal has before it a large body of evidence that the regulatory regime in place in the Northern Territory is comprehensive, is directed towards minimising the risk of major disturbance and renders it unlikely that any of the concerns would come to pass. The Tribunal has before it detailed material on the various legislative conditions imposed on explorers by the Mining Act. The government party asserts that they are “purpose built to address s237” issues. Certainly it would appear that the Northern Territory Parliament has passed laws designed to meet the concerns of the Commonwealth Parliament that the expedited procedure not be granted when there is a likelihood of interference or major disturbance of the type specified in section 237.
[77] It is important to emphasise two things. The first is that the Tribunal will apply a presumption of regularity. This was explained by Deputy President Franklyn in Western Australia v Smith (2000) 163 FLR 32 as follows (at 51-52):
“In my opinion, in the absence of evidence to the contrary, it would be improper to assume that, in exercising the rights created by the grant, the grantee would act in breach of the conditions imposed on the licence or in defiance of the various statutes and regulations which apply in respect of and would restrict any such statute or rights. Nor should it be assumed that those empowered by any statute or regulation to exercise discretion in the manner or extent of the exercise of all or any such rights would not act properly within the boundaries of the discretion. The presumption of regularity must prevail in the absence of evidence to the contrary.”
The second is that this is only a presumption. As Deputy President Franklyn points out, it prevails only in the absence of evidence to the contrary. There may be evidence of previous conduct of the grantee in flouting the law. There may be evidence that the relevant authority is not enforcing the law. Further, evidence could be led about the manner in which discretionary powers are exercised, such that the protections afforded are either illusory or largely ineffectual. So while the government party is entitled to present in evidence what appears to be a well thought out and integrated body of laws that goes further, perhaps, than any other Australian jurisdiction in addressing the requirements of the future act process, this evidence is not conclusive and does not relieve the Tribunal of the task of making a predictive assessment.
[78] A further issue, though not of decisive importance, is the fact that the proposed tenement lies within three pastoral leases. The likelihood of major disturbance by the activities of the grantee party has, necessarily, to be evaluated in light of the fact that native title holders are already subject, on an ongoing basis, to the lawful activities of leaseholders which could have the potential to impact on their rights and interests. As French J pointed out in Smith v Western Australia (2001) 108 FCR 442, in evaluating the risk of interference (or, in the context of section 237(c), major disturbance) the Tribunal has to consider the issue in the broader context. In short, the Tribunal has to take into account such other lawful activities being carried on in the area of the proposed tenement that are, in themselves, likely to cause major disturbance to land or waters.
[79] It also needs to be kept in mind that the disturbance that section 237(c) is directed towards is “major disturbance”. As Wilcox J pointed out in Dann v Western Australia (1997) 74 FCR 391, “major” is an adjective of degree. While disturbance is necessarily a local phenomenon, and that the particular views of Aboriginals who live in or use the affected area must be taken into account, at the end of the day as Wilcox J points out (at 395) it is not up to one of the parties to say that disturbance is major: “assertion is not enough; the Tribunal must decide.”
[80] There is no doubt that the exercise of rights conferred by the exploration licence will involve some disturbance to the area of the proposed tenement. However, the issue for the Tribunal is the likelihood of “major” disturbance. In addressing this issue I have had regard to:
(a)the limited evidence of community or social activities on the proposed tenement;
(b)the absence of areas or sites of particular significance on the proposed tenement;
(c)the regulatory regime in force in the Northern Territory;
(d)the absence of evidence of previous exploration or mining activity on or near the proposed tenement causing major disturbance;
(e)the absence of evidence about any geological or other physical special conditions which would result in a higher risk of major disturbance;
(f)ongoing pastoral activities on the proposed tenement;
(g)the large area of the proposed tenement (approximately 878 square kilometres); and
(h)the absence of any resident Aboriginal community on the proposed tenement.
[81] In conclusion, having considered the evidence before the Tribunal, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to any land or waters concerned, or create rights whose exercise is likely to involve major disturbance to such land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22332 to Ashton Exploration Australia Pty Limited is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
0