Billy Coolibah and Ors on behalf of the Gurdanji and Garawa People/Ashton Mining Limited/Northern Territory - [2002] NNTTA 248

NATIONAL NATIVE TITLE TRIBUNAL

Billy Coolibah and Ors on behalf of the Gurdanji and Garawa People/Ashton Mining Limited/Northern Territory, [2002] NNTTA 248 (5 December 2002)

APPLICATION NO: DO01/61

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Billy Coolibah and Ors on behalf of the Gurdanji and Garawa Peoples (Native Title Party)

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Ashton Mining Limited (Grantee Party)

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Northern Territory of Australia (Government Party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Prof. Douglas Williamson QC
Place:  Melbourne
Date:  5 December 2002

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to have any of the consequences specified in s 237 of the Native Title Act1993 (Cth) – evidence does not support objection – determination that the grant of exploration licence is an act attracting the expedited procedure.

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

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3
Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 3, 33, 34, 35, 36

Mining Act 1980 (NT) ss 24, 24A, 166
Mining Amendment Act 2001 (NT) s 14
Mining Management Act 2001 (NT) ss 35, 36, 37

Cases: Smith v Western Australia (2001) 108 FCR 442

Dann v Western Australia (1997) 74 FCR 391
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, Member Sosso, 1 February 2002
Michael Page/Arafura Resources NL/Northern Territory, NNTT DO01/21, Member Sosso, 1 February 2002
George Huddlestone and Others/Stephen Darryl Moffatt/Northern Territory, NNTT DO01/19, Member Sosso, 2 February 2002
Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, Deputy President Franklyn QC, 27 March 2002
Waanyi Jambarana and Waanyi Liliriji/Ashton Mining Ltd/Northern Territory, NNTT DO01/11, Member Stuckey-Clarke, 14 May 2002
Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, Member Williamson QC, 15 July 2002
Arthur Que Noy and Others/Robert Michael Biddlecombe/Northern Territory, NNTT DO01/114, Member Sosso, 19 July 2002
Anges Limmerick/Pilbara Chemical Corporation NL and Rare Earths and Minerals Pty Ltd/Northern Territory, NNTT DO01/47, Member Williamson QC, 5 August 2002
Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/57, Member Williamson QC, 21 October 2002

Listing Hearing date: 12 December 2001

Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory.

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

Grantee Party: Mr Jeffrey Wilke, Rio Tinto Exploration Pty Limited

REASONS FOR DETERMINATION

Background

On 7 March 2001 the Northern Territory (‘the government party’) issued a notice pursuant to section 29 of the Native Title Act 1993 (Cth) (‘the Act’) that it proposed to grant exploration licence 9925 (‘the proposed tenement’) to Ashton Mining Limited (‘the grantee party’) and included a statement in accordance with section 32(1) that it considered that the act attracted the expedited procedure as defined in s 237 of the Act.
The proposed tenement (‘the licence area’) is 103 blocks (approximately 340 square kilometres) in the Batten locality. It is principally within Perpetual Pastoral Lease (‘PPL’) 1051, known as McArthur River, and partly within PPL 1069 known as Billengarrah. It is an irregular shape: the longest distance north-south is about 27 kilometres, and the longest distance east-west is about 18 kilometres.
On 20 December 2000 a native title determination application (DC00/27, D6031/00) was filed with the Federal Court of Australia (‘McArthur River application’). The applicants are shown as Billy Coolibah, Gordon Lansen and Roy Dixon on behalf of the native title claim group comprised of the Gurdanji and Garawa Peoples (‘the native title claim group’). The application was accepted for registration and entered on the Register of Native Title Claims on 2 February 2001. The McArthur River application remains on the Register, and wholly covers the licence area.
An application (Form 4) objecting to inclusion of the proposed grant in an expedited procedure was lodged on 6 July 2001 and accepted by the Tribunal pursuant to section 32(3). The objectors are the said Billy Coolibah, Gordon Lansen and Roy Dixon on behalf of the native title claim group.
There was no application by any party that this matter required an ‘on country’ hearing, and no party requested the Tribunal to hear oral evidence. At a Listing Hearing held on 12 December 2001 parties agreed that the inquiry could be dealt with ‘on the papers’. 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 and the submissions by the parties, I formed the view that it was not necessary to hold a hearing, and directed that a determination be made on the documents.

Contentions

The following contentions, dated as shown, were submitted to the Tribunal:
(1)   Government party Statement of Contentions, 21 November 2001.
(2)   Native title party Statement of Contentions of Objectors, 28 November 2001.
(3)   Grantee party Statement of Contentions, 26 November 2001.
(4)   Government party Contentions in Reply, 19 December 2001.
(5)   Native title party Objectors’ Reply to the Contentions of the Government Party,
19 December 2001.

Submission of evidence

The government party submitted the following evidence:
(1) Map marked with -
(i)the proposed licence area;
(ii)the location of sacred sites, registered or recorded pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989, both within the licence area and in its general locality;
(iii)the location and general details of various underlying tenures of land, both within the licence area and in its general locality; and
(iv)the location of any known Aboriginal communities.
A substitute for the map originally supplied was included as Attachment ‘A’ to the government party Contentions in Reply (‘the Government party map’). It contained a correction as to the location of the Cow Lagoon Community.
(2) Mining tenement documents including -
(i)a copy of the Exploration Licence application, (with financial details in a sealed envelope marked ‘Financial Details-Confidential’, the confidential status of which was lifted by consent direction on 12 December 2001);
(ii)a schedule showing that there are no other current mining tenures covering the licence area;
(iii)details of prior mining tenements granted over the same area, with dates of grant, expiry and (where applicable) surrender or termination.
The native title party submitted the following evidence:
(1)Affidavit affirmed by ‘Fred Raggett’ (28 September 2001), with attached map of the licence area and surrounding country. It is noted that the affidavit is headed ‘Affidavit – Fred Raggatt’, and the text refers to ‘Fred Raggert’, but the affidavit is signed repeatedly as ‘Fred Raggett’. The latter spelling is used herein. A map signed by Mr Raggett is produced with the affidavit (‘Mr Raggett’s map’).
(2)Affidavits affirmed by expert witnesses Jeffrey John Wilson Stead (8 October 2001) and Mark Frederick Foy (6 November 2001). Annexure ‘MFF1’ to Mr Foy’s affidavit is a 10 page document ‘Exploration Activities’ prepared by him.
(3)Documents prepared by Angus Frith ‘Rights conferred under an exploration licence’ (8 October 2001) and ‘Analysis of legislation dealing with significant areas and sites’ (7 November 2001). These are in the nature of legal analysis and opinions concerning the relevant legislation.
(4)Letter dated 10 December 2001 from the Northern Land Council enclosing information provided by the Aboriginal Areas Protection Authority (‘AAPA’), comprising a map showing sites on and in the vicinity of the licence area registered or recorded in the Register of Sacred Sites as at 7 December 2001, together with a schedule containing the identifying reference number, description (name), brief geographical description, status and map co-ordinates of each site. A direction was made on 12 December 2001 preserving the confidentiality of this information other than for the purposes of the proceedings in this matter.
(5)Extract from the Borroloola (No 1) Land Claim Report, dated 3 March 1978, page 19.

The grantee party submitted the following evidence:
Affidavit of Jeffrey Alexander Wilkie sworn 26 November 2001 with annexures JAW1 and JAW2 setting out the Community Relations Policy and the Environmental Policy of Rio Tinto Exploration – Australasia Region.
With the consent of the parties, the following ‘generic’ material was received in evidence at the Listing Hearing:
(1)Memorandum by Member Sosso, 16 November 2001 ‘Generic Issues To Be Dealt With’, provided to the parties in expedited procedure objection inquiries DO01/13 and DO01/19.
(2)Response by government party, 5 December 2001.
(3)Response by Northern Land Council, 6 December 2001 on behalf of the native title party.
(4)Transcripts of evidence given by Jeffrey John Stead, 3 December 2001, and Mark Frederick Foy, 4 December 2001, in expedited procedure objection inquiry DO01/11 before Member Stuckey-Clarke.
(5)The ‘Standard Exhibit’ submitted by the government party.
Since the Listing Hearing, the Northern Land Council has provided a folder of Standard Documents to Contentions of Objector, compiled as at 9 August 2002, to be relied upon as evidence or submissions in all expedited procedure objection inquiries. The folder includes the affidavits and documents referred to in paragraphs [8(2)] and [8(3)] above, and the transcripts of evidence referred to in paragraph [10(4)]. Given that no grant has yet been made in this matter to the grantee party, it is appropriate to have regard to all relevant material in this folder of Standard Documents.
As at the date of the Listing Hearing, the ‘Standard Exhibit’ referred to in paragraph [10(5)] above comprised a folder of ‘Particulars’ provided on 22 November 2001. Since then, the folder has been updated, as at August 2002. The government party relies upon the contents of the Standard Exhibit in all expedited procedure objection inquiries. Copies of the exhibit are ‘on file’ with the Tribunal, the Northern Land Council, the Central Land Council, and are available for reference by proposed grantees. In brief, the contents comprise extracts from legislation, standard conditions that are contained in every grant of an exploration licence, and brochures, booklets, guidelines and other information concerning the conduct of exploration and mining in the Northern Territory. The relevant material is brought to the attention of applicants for the grant of an exploration licence, either prior to or at the time of grant. Given that no grant has yet been made in this matter to the grantee party, it is appropriate to have regard to the Standard Exhibit in its updated form, as at August 2002. The current contents of the Standard Exhibit are referred to further at paragraphs [28] and [29] below.

The expedited procedure provisions

Subdivision P of Division 3 of Part 2 of the Act applies to certain future acts, including the conferral of specified mining rights, which by definition include exploration rights (section 253). Subdivision P establishes a regime for negotiation amongst prescribed parties, and if agreement is not reached, then a determination is to be made by an arbitral body. If the procedures of the subdivision are not complied with, the future act will be invalid to the extent that it affects native title.
Section 32 of the Act applies if the notice given under section 29 of intention to do the act (in this matter, to grant an exploration licence) includes a statement that the government party considers that the proposed act is an act attracting the expedited procedure as defined in section 237. If the proposed act is one that does attract the expedited procedure, then the negotiation or determination process provided by subdivision P is no longer applicable, and the proposed act may validly be done.
In the present matter the objectors have lodged an objection pursuant to section 32(3) against the inclusion of the statement. If the objection is upheld, then the further provisions of subdivision P remain applicable.
The key to the objection process and the present inquiry lies in the provisions of section 237. These provide as follows:
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.

Legal principles

The interpretation and application of the provisions of section 237, both before and since amendment in 1998, have been the subject of considerable attention both in determinations by the Tribunal and judgements of the Federal Court of Australia. This material has been canvassed in detail in the contentions by the government party and the native title party in the present matter, and in a number of similar objection inquiries in the Northern Territory during the past year. An extensive and helpful analysis of the relevant principles is set out in the Reasons For Determination given by Member Sosso in Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, 1 February 2002 (‘Moses Silver’). No point is served by repeating that process here, because to the extent that the principles and observations set out in paragraphs [20] to [47], [86] to [107], and [135] to [140] of DO01/13 are relevant to the issues directly raised in the present matter, I respectfully agree with them and adopt them, subject to incorporation of the comments about the appropriate approach to spiritual issues set out in paragraphs [18] to [21] of my Reasons for Determination in Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, 15 July 2002.

Native title party evidence

The affidavit of Fred Raggett affirmed 28 September 2001, states:
I, Fred Raggert of Ijarri, via Borroloola in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1.I have seen a map of the area of the ELA 9925. Now produced and shown to me marked “FR-9925” is a map of the ELA and the surrounding area.
2.Gordon Lansen’s Kujika track comes through Shady Camp Waterhole. It’s a Rrumbariya kangaroo. I am Junggayi. I can talk for that. It starts at Gwida at the head of Barney Creek, next to two hot springs. A kangaroo jumped from Cape Crawford and hit the range at a place called Wirrgarruwa. He came along to a spring called Mandanjabu, and kept going to Shady Camp. Then he went east to Ngurrmu, that Tawallah; then Yalgu, Mamamama, and Ngambi Ngambi (a big waterfall in the middle of the desert).
3.Shady Camp is a big lagoon on the creek. If the mining company comes along near Shady Camp, I think they should come and talk to the owner and the Junggayi. If people come along and make damage to the sacred site, we’ll sue them; we’ll have to take them to court. We’re trying to work with the mining company. If they come and talk to us, we’ll show them the where all the sacred sites are to leave, and make it easy for them.
4.The Roper road through ELA 9925 is used a lot. I’ve got an excision on Tawallah near Crocodile Creek, just near the airstrip on Old Tawallah. It’s about where a dotted circle is marked on the map. All through the dry season, I live out there, but when the road is boggy or torn up, I stay in Borroloola.
5.When we are on the excision, we go hunting on the pastoral lease around there. We go along the road a few kilometres in the direction away from Narwinbi. We shoot from the road. We get a lot of bush turkey, kangaroo. We go a long way; right out past Billengarrah. When I had the four wheel drive, I used to go hunting through that country past Shady Camp, up to the Roper River road. There is a graded track all the way along the side of the creek, through Shady Camp. I had the four wheel drive last year. Now I only have a car. We go fishing. We dig turtle out of the mud. My family goes with me. The ladies get wild yam.
6.If the mining company is in there exploring, we don’t hunt around there until they’re finished. If we know they’re there, we won’t go hunting. When I’m on my block, I’d go hunting and fishing along the road maybe two times a week. Sometimes we go around on the Borroloola Road and come back through Cape Crawford and down the McArthur River.
All the facts and circumstances deposed to in this affidavit are within my own knowledge except where they are stated to be from information only and my means of knowledge and sources of information appear on the face of this affidavit.

The map referred to in paragraph 1 above (‘Mr Raggett’s map’) is produced with the affidavit.

The Statement of Contentions of the native title party does not assert that there are Aboriginal Communities within the licence area, but states that there are several “in the vicinity” of it, which are said to be occupied by members of the native title claim group. The Communities identified are ‘Borroloola, Ryan’s Lagoon, Cow Lagoon, Ijarri and W Lagoon’.

(a)W Lagoon is in fact within the licence area, at or close to the Borroloola Road which traverses the northern portion of the licence area. The Community however, is not listed in the NTG publication ‘Northern Territory Aboriginal Communities (15 April 2002), and according to the government party’s contentions in reply there are no amenities there save for a water tank, and the Community has not been occupied for a number of years. No evidence of occupation is provided by the native title party.
(b)Cow Lagoon (or Tawallah) is about 3 kilometres east of the licence area, along the Borroloola Road (or Ryans Bend Road as it is known at that point).
(c)Ijarri (‘Ijarra’?) is along the Borroloola Road, within the Ijarri Community Aboriginal Corporation area, about 10 kilometres east of the licence area.
(d)Ryan’s Lagoon (‘Ryan’s Bend’?) (Tjoungouri) is along the Borroloola Road, within the Narwinbi Aboriginal Land Trust area, about 15 kilometres east of the licence area.
(e)Borroloola is further east along the Borroloola Road, about 45-50 kilometres from the licence area.

The Statement of Contentions of the native title party refers to several roads ‘inside, or in the vicinity of the licence area’, that are frequently used by members of the claim group.

(a)The road from Borroloola to the Limmen Bight. The Borroloola Road passes through the northern part of the licence area, on roughly an east-west line, before turning north towards Limmen Bight.

(b)Carpentaria Highway passes about 16 kilometres to the east of the south-east corner of the licence area.
(c)It is asserted that various station tracks exist within the licence area. Paragraph [5] of Mr Raggett’s affidavit refers to ‘a graded track all the way along the side of the creek, through Shady Camp’.

Plainly, the Borroloola Road provides access to the northern part of the licence area. It is not apparent how easy or difficult it is to gain access to the southern part of the licence area from the Carpentaria Highway.

The Statement of Contentions of the native title party refers to several water bodies in and around the licence area.

(a)Maps show that Batten Creek, Stott Creek and Looking Glass Creek are within the licence area.
(b)It appears that the upper reaches of Buffalo Creek are within the south-eastern part of the licence area.
(c)Reference is also made to Smythe Creek, Hot Springs (Spring?)Creek and Deep Creek (and their tributaries), but from the maps provided to me I am unable to discern whether they are within or outside the licence area. The uppermost reaches of Hot Spring Creek might be just within the southern boundary of the licence area.

The Statement of Contentions of the native title party refers to only one specific area or site as of particular significance. This is Shady Camp Waterhole, referred to in Mr Raggett’s affidavit at paragraphs [2] and [3]. It is described as ‘a big lagoon on the creek’, but the location is not otherwise identified. However, the site information provided by AAPA lists recorded site 6065-4 Guyuwara (status 10), described as a watercourse including a tributary of Camp Creek from the crossing on the track to Borroloola downstream to Shady Camp Waterhole. The AAPA Site Map shows site 6065-4 at a location in the north-west of the licence area, just within the boundary, on Camp Creek. In the absence of other information, it is assumed that this is the approximate location of the site referred to by Mr Raggett.
Other places mentioned by Mr Raggett in his affidavit relate to the Kujika track of a Rrumbarriya kangaroo, namely Gwida (at the head of Barney Creek), Cape Crawford, Wirrgarruwa, Mandanjabu, Shady Camp, Ngurrmu, Tawallah, Yalgu, Mamamama, Ngambi Ngambi. It is noted that apart from Shady Camp, there is nothing in the material to indicate that any of these places are within the licence area, with the exception that the AAPA site information refers to recorded site 6065-11 Madangubu (status 10), which may possibly be ‘Mandanjabu’ referred to above. It is described as a rockhole and gorge intersected by a huge rock slab, and according to the AAPA site map is located right on the south-west boundary of the licence area. The only other site on the licence area recorded by the AAPA is recorded site 6065-12, which is W Lagoon, also known as Gunbululunyi (status 10).
The AAPA site map shows recorded sites 6065-10, 6065-17, 6065-18 and 6065-19 all a short distance north and east of the northern boundary of the licence area, and 6065-20 a short distance south of the southern boundary. Site 6065-10 is near Cow Lagoon, and has status 30. The rest have status 10.
The Statement of Contentions of the native title party lists community or social activities occurring over ‘some or all of the licence area and in its vicinity’ as including –

(a)foraging (Land Claim Report, paragraph [98])
(b)hunting, fishing, gathering of bush tucker (Raggett [5])
(c)teaching children about traditional laws, customs, activities (Raggett[5])
(d)looking after country, by individuals with specific responsibilities visiting and maintaining sites (Raggett [3]).

The McArthur River application states that the native title claim group is comprised of the Gurdanji and Garawa Peoples who are traditionally connected with the area claimed, which includes the licence area. They are descended from eleven identified apical ancestors.
As already noted, the information provided by AAPA lists three recorded Aboriginal sacred sites within the licence area, namely 6065-4 Shady Camp Waterhole, 6065-11 Mandangubu and 6065-12 W Lagoon (Gunbululunyi). The AAPA site information is examined further later.

The Affidavit of Hugh Joseph Bland (30 November 2001) tendered in NNTT DO01/13 and included in the ‘generic’ material, explains the meaning of the status code used by AAPA. Status 10 indicates that the AAPA has become aware of the existence of a site, it is recorded, and deemed to be significant according to Aboriginal tradition, but has not been evaluated or placed on the Register. If research then indicates that a site is not a ‘sacred site’, it is downgraded to a status of less than 10. Status 12 indicated that the site is recorded, not yet registered, but that research has tended to confirm the location and establishes the significance of the site. Later steps will see the status continue to rise as the site passes through stages of the registration process. Status 40 indicates a registered site.

The affidavit of Mr Stead (8 October 2001) and his oral evidence (3 December 2001) and the affidavit of Mr Foy (6 November 2001) with the annexure ‘Exploration Activities’ and his oral evidence (4 December 2001) have now been submitted in evidence in standard form in a number of expedited procedure objection inquiries.
Similarly with the memoranda prepared by Mr Frith setting out his analysis of the relevant mining legislation ‘Rights conferred under an exploration licence’ (8 October 2001) and the relevant sacred sites legislation ‘Analysis of legislation dealing with significant areas and sites’ (7 November 2001).
At paragraphs [23] to [28] of my Reasons for Determination in Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths and Minerals Pty Ltd/Northern Territory, NNTT DO01/47, 5 August 2002 I have commented at length upon the difficulty of applying the above evidence given (or submissions made) by Messrs Stead, Foy and Frith, and assessing the weight to be given, when there is limited specific factual evidence in the particular matter under consideration. Those comments will not be repeated here, but are incorporated by reference in these Reasons for Determination.

Government party evidence

The government party’s map shows that the licence area lies mostly within McArthur River PPL 1051, and partly within Billengarrah PPL 1069.
Information submitted by the government party states that there are no other current mining tenements on the licence area. However, there have been 6 past prospecting authorities and 22 past exploration licences. These are referred to later.
The government party has submitted its Standard Exhibit. As noted in paragraph [12] above, the Standard Exhibit was updated in August 2002. This was done principally to take into account the modifications introduced as from 1 January 2002 by the Mining Management Act 2001, concerning substantial disturbance. The Standard Exhibit now includes (amongst other things) the following material:
(1)A standard letter, to accompany the exploration licence. It draws attention to a number of the regulatory requirements.
(2)A pro-forma exploration licence, which includes the terms and conditions set out in the First and Second Schedules.
(3)A copy of the Second Schedule conditions, imposed by the Minister pursuant to powers conferred by section 24A of the Mining Act. The conditions in force as at August 2002 are a modification of the earlier version, and take account of the new substantial disturbance authorisation requirements. There have also been some changes to the earlier sequence of conditions, to produce a more methodical grouping of topics under various sub-headings.
(4)A Mining Operation Pack, dated 7 May 2002, prepared by the Mines Division. It comprises 20 sets of documents, including an electronic version.
(5)An Information Sheet, ‘Aboriginal Areas Protection Authority – Sacred Sites Avoidance in the Northern Territory’. This has also been updated as at August 2002.
(6)A memorandum dated 16 January 2002, ‘Contentions on Mining Management Act 2001’, together with a copy of the Act (no. 43 of 2001), the Mining Management Regulations (no. 50 of Regulations 2001) and the Mining Amendment Act 2001 (no. 44 of 2001).
The Standard Exhibit also contains extracts from, or references to, provisions of the mining legislation that are applicable to the grantee of an exploration licence. They include the following:
(1)Sections 24, 24A and 166 of the Mining Act.
(2)Sections 35 to 37 of the Mining Management Act 2001, effective 1 January 2002. These provide a scheme for regulation of substantial disturbance, replacing the regime previously contained in conditions (e) to (g) in section 24 of the Mining Act.
The full Second Schedule conditions, and summaries of the substance and effect of the other contents of the Standard Exhibit listed in paragraphs [33] and [34] above, are set out in my Reasons for Determination in Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/57, 21 October 2002 and are not repeated here, but are incorporated by reference in these Reasons for Determination.
The evidence of the government party also refers to the affidavit of Timothy Milne Gosling (5 December 2001) and the extensive annexures to it. This material was originally tendered by the government party in objection inquiry DO01/13, and was included in the ‘generic’ material provided in the present matter. Now it is incorporated by reference in the memorandum listed at paragraph [33(6)] above. Mr Gosling’s affidavit was sworn before the legislative changes that operate as from 1 January 2002. It deposes to the processes under section 24(e) of the Mining Act for approval of activities likely to result in ‘substantial disturbance’. These processes were aimed at minimising damage, and provided for rehabilitation. As from 1 January 2002 a more comprehensive substantial disturbance regime has been in place, by virtue of the Authorisation process set out in the Mining Management Act 2001 (NT). There is no reason to doubt that the views put in Mr Gosling’s affidavit, attesting to the effectiveness of the substantial disturbance regime before 1 January 2002, are equally applicable to the regime in place since then.
Furthermore, as noted by Deputy President Franklyn QC in Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, 27 March 2002 (‘Gabriel Hazelbane’) at paragraph [16]:
It must be assumed that the Minister and Secretary will administer their obligations under the Acts in accordance with the terms of the Mining Act and Mining Management Act and the philosophy of the Mining Act as apparent in sections 24, 24A and 166 of the Mining Act, and sections 35 to 46 of the Mining Management Act. The presumption of regularity applies.

I respectfully adopt this approach. There is no evidence in the present inquiry sufficient, in my view, to rebut the presumption of regularity with respect to the grant of the proposed exploration licence and the subsequent supervision of operations.

The application for grant

The government party has submitted the application dated 15 July 1997 by Ashton Mining Limited for the grant of the exploration licence. A licence is sought for 6 years. It is noted that the Statement of Contentions of Government Party (21 November 2001) at paragraph 1 refers to Ashton Exploration Australia Pty Ltd as the applicant (‘the grantee party’) and this is reflected in the headings to government party documents, but this plainly an error. The correct grantee party is identified in the licence application, the section 29 notice, and in the material submitted by the native title party and the grantee party.
The application states that the licence area covers ground interpreted as prospective for diamond mineralisation.
The exploration proposed for year 1 will involve Landsat TM Imagery, ground mapping, and follow-up reconnaissance stream sampling. The proposed first year expenditure (estimated as at July 1997) is budgeted at $20,000.
Subsequent stages would involve follow-up sampling of any anomalous results, tested by Rotary Air Blast and Reverse Circulation Drilling. The extent of further work will depend upon the results obtained. The proposed expenditure for years 2 to 6 is estimated at $25,000, $28,000, $32,000, $38,000 and $45,000 respectively. It would appear from the corporate information supplied with the application that the grantee party is adequately resourced to carry out the exploration work.

Previous tenements

Material is provided by the Department of Business, Industry and Resources Development as to existing and past tenements on the licence area. As indicated before, there are no current mining tenements within the licence area. The Department lists 6 past Authorities to Prospect (running for various periods between 1962 and 1972) and 22 past exploration licences (running for various periods between 1972 and 2000) ‘over’ the licence area. There is no indication of what portions of the licence area were covered.

Prior exploration activities

There is no material provided to show what exploration work (if any) was actually performed, or where.

Further grantee party evidence

Reference has already been made to the proposed exploration activities. Further evidence by the grantee party is set out below.
The affidavit of Jeffrey Wilkie states:
On 26 November 2001, I, Jeffrey Alexander Wilkie, Manager, of 18km Post, Stuart Highway, Berrimah in the Northern Territory, say on oath;
1.   I am presently employed by Rio Tinto Exploration Pty Ltd as Manager, Aboriginal Relations – Northern District. I have held this position for approximately 5 years and have been employed by Rio Tinto Pty Ltd for approximately 7 years.
2.   As Manager, Aboriginal Relations, Northern District I am responsible for Rio Tinto’s Aboriginal relations programs throughout the Kimberley region of Western Australia, Queensland and the Northern Territory.
3.   Ashton Mining Limited (“Rio Tinto”) is a subsidiary of Rio Tinto Limited specialising in mineral exploration and mining.
4.   Rio Tinto made application for the grant of exploration licence numbered 9925 pursuant to the Mining Act, 1980 (NT).
5.   The exploration licence application complied in all respects with the Mining Act.
6.   If the exploration licence is granted Rio Tinto will comply in all respects with its obligations under:
a)Northern Territory and Commonwealth legislation (including the Mining Act, the Northern Territory Aboriginal Sacred Sites Act 1989 (NT), the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Native Title Act 1993 (Cth) ); and
b)The conditions of the exploration licence itself.
7.   In addition to its obligations under the above legislation and the exploration licence, Rio Tinto will comply in all respects with Rio Tinto Exploration Pty Ltd’s Community Relations Policy and Environmental Policy, with the following effect:
a)Rio Tinto is sensitive to the interests of all Aboriginal parties affected by its exploration activities and endeavours to minimise the social and environmental impact of those activities;
b)Rio Tinto will communicate in an open and honest manner with all community representatives and exercise respect and consideration when engaging with Aboriginal parties;
c)prior to conducting work programs during the course of exploration, Rio Tinto will ensure that an appropriate process of Aboriginal heritage protection is conducted, commensurate with the proposed level of impact on each program;
d)Rio Tinto recognises the special connection to land and waters that Aboriginal parties may hold and acknowledges that there may be places that Aboriginal parties may wish that exploration activities be excluded for cultural reasons.
8.   Annexed and marked “JAW1” and “JAW2” are copies of Rio Tinto Exploration Pty Ltd’s Community Relations and Environmental Policy.
Annexure JAW1 is as follows:
Rio Tinto Exploration – Australasia Region
Community Relations Policy
Rio Tinto Exploration Pty Limited – Australasia Region aims to be the explorer of choice within Australasia.
To achieve this Rio Tinto Exploration will conduct its activities in a safe, professional and responsible manner. When engaging with local communities we will do so ethically, fairly and consistently.
We shall:
-    Comply with and promote Rio Tinto’s Community Relations policies
-    Be sensitive to the interests of all stakeholders affected by our activities
-    Minimise the social and environmental impact of our activities
-Communicate in an open, honest and respectful manner with all community representatives and listen to and respect their concerns
-    Comply with the spirit and the letter of negotiated land access agreements
-    Comply with all legislative requirements.
[signed]
John F Stephenson
Exploration Director
June 2000

Annexure JAW2 is as follows:
Rio Tinto Exploration – Australasia Region
Environmental Policy
Rio Tinto Exploration Pty Limited – Australasia Region recognises that sound environmental practice is critical to its long term success.
Through effective management the region will strive to minimise the environmental impact of its activities.
To achieve this Australasia Region shall:
-Build from a foundation of compliance with applicable laws, regulations and corporate commitments
-    Establish procedures to ensure effective implementation of its policy
-    Provide adequate environmental training and guidance to its employees
-Instil a culture of continuous improvement through setting and reviewing targets, auditing and reporting environmental performance
-Consult with local communities and other stakeholders to address and manage their environmental concerns
-Ensure critical documents are translated into local languages wherever Australasia Region operates
We expect our employees and contractors to:
-    Comply with the region’s environmental management systems
-    Provide suggestions for improved environmental practice
-    Report all environmental incidents to their immediate managers
-Identify and address environmental concerns through open and honest consultation with local community members
[signed]
John F Stephenson
Exploration Director
20 December 2000
In paragraph 3 of his affidavit Mr Wilkie specifies the expression ‘Rio Tinto’ as a short form of reference to the grantee party Ashton Mining Limited. The references to ‘Rio Tinto’ in subsequent paragraphs are to be read accordingly. Thus, in addition to undertake to comply with all statutory obligations and licence conditions, the grantee party, through Mr Wilkie, is undertaking to comply in all respects with the Community Relations Policy and Environmental Policy adopted by its related company Rio Tinto Exploration Pty Limited, as set out in annexures JAW1 and JAW2.
There have been developments since Mr Wilkie swore his affidavit. In furtherance of the community and environmental policies of Rio Tinto Exploration Pty Limited, that company and the Northern Land Council have agreed upon a Memorandum of Understanding dated 21 December 2001 which sets out a co-operative approach to the development of exploration and mining projects and recognition of, and respect for, native title holders’ rights and responsibilities under customary and statute law. In particular, the Memorandum annexes a model exploration and mining agreement to be entered into between the company (or any related company that is the applicant for the exploration licence), the relevant local Aboriginal groups and the Northern Land Council, with the intention that it be used as a pro-forma to deal with a wide range of matters including (but not limited to) co-operation, consultation, work programs, field inspections, information exchange, cultural clearances, protection of sacred sites and sacred objects, environmental protection and rehabilitation, various forms of community benefits, and dispute resolution. There are further provisions relating specifically to any proposed mining development.

The Memorandum of Understanding, which is subject to review after a specified period of time, evidences a process by which Rio Tinto Exploration Pty Limited and the Northern Land Council address matters that might otherwise be of concern to potential objectors to the expedited procedure. The model agreement seeks to anticipate and resolve any such concerns.
It is my understanding gained from the parties that an equivalent approach has been adopted by the grantee party Ashton Mining Limited (as a subsidiary of Rio Tinto Limited) and the Northern Land Council. It is also my understanding that since execution of the Memorandum of Understanding, there have been no further applications to the Tribunal objecting to the inclusion in a section 29 notice of a statement that the proposed act attracts the expedited procedure, in matters where either Rio Tinto Exploration Pty Limited or Ashton Mining Limited is the applicant for an exploration licence within any area for which the Northern Land Council has responsibilities as a representative body.

Section 237(a): Interference with carrying on community or social activities

The contentions and evidence about activities

The issue is whether the proposed act of granting the exploration licence is likely to interfere directly with the carrying on of the community or social activities of the native title claim group in relation to the land or waters concerned.
As noted in paragraph [19] above, there is no evidence of any Aboriginal community living on the licence area, even at W Lagoon. Nor is there evidence of camping.
The contentions of the native title party state that members of the native title claim group exercise their native title rights ‘within and in the vicinity of’ the licence area, and that in doing so, they carry on community or social activities ‘on and around’ the licence area. The claimed activities are summarised at paragraph [25] above.
In reply to the foregoing, the government party contends that the references to community or social activities are so lacking in particularity as to location, seasonal variations, numbers of persons engaged and frequency that the references have no evidentiary weight. In its reply, the native title party denies the need for this degree of specificity.
It is necessary to examine the evidence, rather than the contentions, in relation to factual matters that are really in issue.
As to foraging, reliance is placed upon the findings in the Borroloola (No 1) Land Claim Report. This Report is of limited assistance. It, like many similar reports, supports the general proposition that traditional owners usually have foraging rights over their country. However, apart from Mr Raggett stating that ‘I am Junggayi, I can talk for that’ in relation to the Rrumbariya kangaroo track, there is no attempt in the evidence to relate the findings as to traditional owners and country which are the subject of the Report, to the traditional owners and country in the licence area. I am unable to reach any conclusion about the exercise of traditional rights of the native title claim group to forage over the licence area, and the likely effect upon that by activities under the proposed exploration licence.
The submission about looking after country is touched upon by the evidence of Mr Raggett at paragraph [3] of his affidavit. From that may be inferred a responsibility of the ‘owner and the Junggayi’ for looking after sacred sites.
The evidence as to hunting, fishing and gathering of bush tucker is in Mr Raggett’s affidavit at paragraphs [4] and [5].

(a)In the dry season, when living on the excision at Tawallah, ‘we’ go hunting. There is shooting from the road, to get a lot of bush turkey, kangaroo.
(b)This is done a few kilometres ‘in the direction array from Narwinbi’. It seems likely that this is west of Narwinbi and Tawallah, in the direction of the licence area.
(c)It is also done ‘a long way; right out past Billengarrah’. The latter is 30 kilometres or more west of Tawallah, and it seems very likely that the Borroloola Road through the licence area is used for this purpose. Whether hunting occurs from along that road within the licence area, and if so how far from the road, is not clear.
(d)Mr Raggett states that he used to go hunting through the country past Shady Camp, up to the Roper River Road, when he had a four wheel drive (up until year 2000). Although Shady Camp Waterhole is just inside the western boundary of the licence area, to drive along a graded track beside the Camp Creek up to the Roper River Road would appear to be heading north-west out of the licence area into an area further to the north-west.

As to fishing and bush tucker, Mr Raggett, at paragraph [5], refers to fishing (presumably along Camp Creek), digging turtle out of the mud, and to the ladies getting wild yam.
As to teaching children about traditional matters, Mr Raggett, at paragraph [5], states that his family goes with him.
There would appear to be relatively easy access by motor vehicle, at least in the dry season, from the communities on or near the Borroloola Road, to the northern part of the licence area. In my opinion, the evidence as to the nature and extent of relevant community and social activities – especially in the context of traditional activities – over a licence area of approximately 340 square kilometres, is very limited.
Apart from possible shooting from the road as it passes through the licence area, Mr Raggett’s evidence concerning activity on the licence area is confined geographically to a relatively small area around Shady Camp Waterhole, close to the Borroloola Road, and apparently part of Camp Creek, close to the western boundary of the licence area.

The contentions and evidence about likely direct interference

The native title party contends that the proposed grant of the exploration licence will authorise the grantee party to engage in a range of activities that will directly interfere with the carrying on of the community or social activities of the native title claim group. These exploration activities include the presence of exploration personnel and equipment; the use of access roads or trucks; construction of tracks, roads, camps sites; increased traffic; and a range of environmental impacts. It is contended that all of this is likely to impact directly on the claimants’ ability, confidence and desire to access and utilise the licence area, so that there is a real or not remote chance or possibility of direct substantial interference with community or social activities.
The above contention really amounts to a listing of all the things that the grantee of an exploration licence may do, whether or not in fact they are likely to be done. It has little or no regard to the regulatory context in which any exploration activities would take place, or indeed, to the description of the proposed exploration program set out in the licence application.
In reply to the contentions of the native title party, the government party contends that:
(1)the likely interference must be direct (ie proximate) and substantial, and the materials do not establish the how, when, where and why of whether a substantial impact is likely to occur;
(2)the contextual risk evaluation should have regard to the state of the evidence, the regulatory scheme, the lawful activities of third parties (including the pastoral lessees) prior mining and/or exploration grants, and restrictions imposed by the general law.
I have referred in paragraphs [33] to [36] above to material relating to the statutory provisions and the administrative regime applicable to the regulation of activities pursuant to an exploration licence in the Northern Territory. Of particular significance are the provisions, terms and conditions designed to protect native title rights and interests, including requirements added since 1 January 2002. Not only are these controls applicable, but active steps are taken by the government administration to bringing them to the notice of a grantee party. Certainly following this inquiry, and upon reading these reasons for determination, the grantee party in this matter could not profess ignorance of them.
In the context of each of sections 237(a) and 237(b), there is particular relevance in Condition 1 of the Second Schedule. This condition imposes a general obligation upon the grantee to minimize interference with traditional community or social activities, or interference with areas or sites of particular significance. Against that background, the conditions relating to consultation (condition 6) and resolution of complaints (condition 25) take on added significance. The provisions of conditions 1, 6, 7, 8, 18, and 25 of the Second Schedule are all specifically directed to the protection of native title rights and interests. In addition, the rest of the conditions also serve, directly or indirectly, to prevent or minimize interference with community or social activities, or areas or sites of particular significance. The effect of legislation directed specifically to sacred sites is considered in relation to section 237(b), but to the extent that there are physical activities associated with areas or sites, then legislation directed to protection of sacred sites tends to facilitate physical activities associated with them.
In Arthur Que Noy and Others/Robert Michael Biddlecome/Northern Territory, NNTT DO01/114, 19 July 2002 at [32], Member Sosso states:
The regulatory regime in force in the Northern Territory contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities. …. the cumulative effect of the various provisions in the Mining Act is such, that it is possible to infer that there is a comprehensive and well integrated legal regime which is aimed at preventing (as far as is practicable) interference with community or social activities by explorers. While this regime does not render otiose an assessment pursuant to section 237(a), nevertheless the existence of such a regime is an important factor to be considered when making a predictive risk assessment …

I respectfully adopt those observations.

In addition to the statutory and administrative regime imposed upon any grantee party, in this matter the grantee party has outlined its own internal policies and practices, and has expressed the intentions set out at paragraphs [45] to [48] above. I have also referred to more recent developments at paragraphs [49] to [51]. In the ordinary course of events the Tribunal is entitled to assume that the grantee party will act lawfully and consistently, and that it will give effect to its present intentions. Presumptions of legality and continuity are capable of rebuttal in appropriate circumstances, but I am not aware of any such circumstances relevant to the present matter.

Conclusion as to section 237(a)

In Smith v Western Australia (2001) 108 FCR 442 at 451 French J states that interference:
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.
The evidence of Fred Raggett, as distinct from standard-form assertions in contentions by the native title party, is limited to the activities of himself and his family, and is negligible as to past and present community or social activities within the licence area by other members of the native title claimant group. As to the way in which the proposed exploration activities on the licence area are likely to interfere with those community or social activities, he refers to an inability to hunt if explorers are there (paragraph [6]).
Against this there is the specific evidence about the comprehensive requirements of the regulatory regime and its implementation, together with evidence relevant to the intentions of the grantee party (particularly with respect to consultation). There are presumptions of regularity and legality about the conduct of the government party and the grantee party, neither of which is effectively rebutted by the evidence of Mr Raggett.
On the evidence, taken as a whole, I am satisfied that there is no real chance or risk that the proposed act will interfere directly with the carrying on of the community or social activities of the native title claim group in anything more than a trivial or unsubstantial way, if at all. In my opinion, the proposed act is an act attracting the expedited procedure within the meaning of section 237(a) of the Act.

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

The issue is whether the proposed act is likely to interfere with areas or sites of particular significance in accordance with the traditions of the native title claim group.
The native title party contends that an area or site is of particular significance because either it has an identified and specific significance that is different to that of other sites or areas of land or waters, or alternatively, all land or waters are significant, and the named area or site is of particular significance in comparison to other land or waters.
I do not accept the blanket nature of those contentions. Plainly the legislation is drawing a distinction between areas and sites that are of ordinary significance, and those that are of special, or more than ordinary, significance in traditional terms: Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 34 per Carr J. I have noted Mr Frith’s memorandum ‘Analysis of legislation dealing with significant sites’, and have commented on it at paragraphs [23] and [24] above. It is a question of fact as to whether a given area or site is of particular significance, and where that is a contested issue, must be established by evidence, not mere submission.

The identification of sites

The native title party contends that there is a specific area or site of particular significance with which the grant of the exploration licence is likely to interfere. This is at Shady Camp Waterhole. The location has already been referred to above at paragraph [22]. Other areas or sites, within the licence area and in the vicinity of it, have been referred to at paragraphs [23] and [24] above.

The significance of the sites

I accept Mr Stead’s evidence that the AAPA Register is not necessarily conclusive as to whether a sacred site exists within a given area.
On the other hand, the fact that a site is recorded, or even registered, as a ‘sacred site’ within the meaning of the Sacred Sites Act does not determine whether or not the site is of ‘particular significance’ for the purposes of section 237(b). I refer to and respectfully adopt the analysis of this issue by Deputy President Franklyn in Gabriel Hazelbane at paragraph [81], which is a refinement of the views expressed by Member Sosso in Moses Silver at paragraph [95]. Once again, the issue of significance is a matter for evidence.
The significance of Shady Camp Waterhole is described by Mr Raggett at paragraphs [2] and [3] of his affidavit. There is evidence of continuing significance. A Rrumbariya kangaroo went there. Mr Raggett has emphasised the need for the grantee party to consult the native title claim group about that place, and serious consequences if it does not. I accept that an area or site at or in the vicinity of Shady Camp Waterhole is likely to be an area or site of particular significance within the licence area.

The risk of interference with areas or sites

Areas or sites of particular significance that are located within the licence area or on the boundary are plainly relevant. In my opinion, only Shady Camp Waterhole so qualifies. It has been accepted by the Tribunal that an area or site that is not located on the licence area may still be relevant, but the evidence does not suggest that any of the nearby areas or sites are of particular significance in the relevant sense.
However, whether an area or site of particular significance is within the licence area or beyond it, the evidence must reveal that the exploration activity is likely to interfere directly and physically with the area or site. See Moses Silver per Member Sosso at paragraphs [34], [35], [88] and [89].
No party has provided any evidence about the effect of activities, if any, between 1962 and 2000 under the earlier authorities to prospect and exploration licenses over the licence area, as referred to in paragraph [42] above.
Very little evidence of weight is provided by the native title party about the likely impact of the proposed exploration program upon the area or site of particular significance that has been identified. One must sympathise however, with the practical difficulty faced by the native title party at this stage, in the absence of access to a detailed proposed work program. The difficulty highlights the relevance and importance of the consultation process within the regulatory regime, together with the undertakings by the grantee party in this matter.
In what may be an attempt to overcome this evidentiary difficulty, the contentions of the native title party argue that under a so-called precautionary principle the mere possibility of interference should be taken into account. I cannot accept that this is the proper test. Section 237(b) requires a determination of whether the act is ‘likely’ to interfere with areas or sites of particular significance.

In Smith v Western Australia (2001) 108 FCR 442 at 450 French J said ‘ … the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of major disturbance of the kind contemplated by s 237’. (In full context, French J was referring to ‘interference’ under section 237(b) as well as ‘major disturbance’ under section 237(c)). I respectfully adopt that approach, as was done by Member Sosso in Moses Silver at [22], citing Little v Western Australia [2001] FCA 1706 per R D Nicholson J at [72] in further support.

The contentions of the native title party argue that the grant of the exploration licence, and lawful exploration activity under that licence, ‘is likely’ to interfere with the areas or sites of particular significance. Reliance is placed upon the documents written by Mr Frith and Mr Foy to demonstrate the potential range and nature of exploration activity. Reliance is also placed upon the document written by Mr Frith to demonstrate limitations to the protection provided by Commonwealth and Territory sacred sites legislation. However, in paragraphs [28] to [30] above reservations are expressed concerning the usefulness of this material in practice.

It is no doubt correct, as the native title party contends, that the legislation, conditions, endorsements, penalties and so on do not provide ‘absolute protection’ for areas or sites of particular significance. This however, is not quite the point. As stated by French J, section 237(b) requires an evaluative assessment of risk. The issue is whether on that assessment, after taking into account the legislation and regulatory practices and constraints, together with the likely conduct and intentions of the grantee party, there is a real chance or risk of interference (or in the case of section 237(c), major disturbance).

The government party contends, correctly in my view, that a contextual risk evaluation should include reference, amongst other things, to the regulatory scheme which governs the exercise of the rights under the grant (including the presumption of regularity), the statutory scheme which protects sacred sites in the Northern Territory, and prior and concurrent lawful activities on the licence area. The comprehensive regulatory scheme that has been in place since January 2002 has been referred to in paragraphs [33] to [36] above.

In the present matter one must add to that list the intentions of the grantee party, as evidenced by the affidavit of Mr Wilkie and the annexures to it, referred to in paragraphs [45] to [48] above. In addition there is now the Memorandum of Understanding and model agreement referred to in paragraphs [49] to [51] above.

The above considerations are relevant to the evaluation of likely interference with areas or sites under section 237(b). It is clear that under the statutory provisions, the administrative procedures, the grantee party’s policies and the Memorandum of Understanding, it is extremely likely that appropriate consultation will take place in order to avoid the risk of interference with areas or sites of particular significance, and to resolve any concerns.
There is a particular safeguard which lends practical force to the above process. The conditions of the proposed exploration licence will trigger enquiry and consultation, both within and outside the provisions of the Sacred Sites Act. See particularly conditions 1(b), 6, 7, 8 and 25 of the Second Schedule. In addition, Part IV of the Sacred Sites Act provides for offences, penalties and processes in the event of unauthorised work on or use of a sacred site, whether or not the site is registered or recorded. There is a defence based on lack of reasonable grounds for suspecting that a sacred site was there. However, in addition to any legal obligations, the specific matters raised by Mr Raggett in the present material (particularly concerning an area or site at or in the vicinity of Shady Camp Waterhole) have been brought to the attention of the grantee party, so that ignorance can hardly be pleaded. Further, the grantee party has declared its intention to engage in consultation with Aboriginal parties and take into account their concerns, pursuant to its declared policies.

Conclusion as to section 237 (b)

On the evidence, it seems unlikely that exploration activities on the licence area, or associated activities off the licence area, will be permitted to occur at a place or in a manner that is likely to interfere with the area or site of particular significance at or in the vicinity of Shady Camp Waterhole. I am satisfied that there is no real chance or risk that the proposed act will interfere with an area or site of particular significance, in accordance with their traditions, to the native title claim group. In my opinion, the proposed act is an act attracting the expedited procedure within the meaning of section 237(b) of the Act.

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

The issue is whether the proposed act is likely to involve major disturbance to any land or waters concerned, or create rights whose exercise is likely to involve such disturbance.

The native title party contends that this will be so, and that therefore the act is not one that attracts the expedited procedure.

The Tribunal has previously discussed the criteria applicable to section 237(c), and I have done so in Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, 15 July 2002. At paragraph [101] of that Determination the following is stated:
The key to section 237(c) is the concept of ‘major disturbance’, whether the first or second branch of the section is applicable. This expression was considered by the Full Court of the Federal Court in Dann v Western Australia (1997) 74 FCR 391. It held that the interpretation of the expression is a question of ordinary statutory construction. In Gabriel Hazelbane Deputy President Franklyn summarised the views of the Court [and expressed his own conclusion] as follows:
As Wilcox J observed, the word ‘major’ is an adjective of degree which requires the Tribunal, in determining whether a given envisioned disturbance is ‘major’, to make a value judgement, giving the term ‘major disturbance’ its ordinary English meaning, considering the matter of degree from the viewpoint of the community generally, its effect on local people being particularly important. Tamberlin J observed that there is no justification for excluding the views of any section of the community nor for suggesting that the views of any particular section, in all circumstances, prevail. “The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or water can be properly categorised as ‘major’”; and, “It is necessary to take into account the views and concerns of Native Title holders but the importance and weight to be assigned to those matters will vary in each particular case according to the circumstances and evidence produced”. Nicholson J held that the expression “should be understood as an ordinary English term and given its ordinary meaning as understood by the whole of Australian community, including Aboriginal people”. It is clear from the judgements that the views of the Aboriginal people must be considered having regard to the circumstances and evidence adduced.

I respectfully agree with the conclusion by Deputy President Franklyn that the views of the Aboriginal people must be considered, but that this must be done in the context of the particular circumstances and the actual evidence.

In Arthur Que Noy at paragraph [43] Member Sosso states:
the regulatory regime … goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and to native title rights and interests are minimised as far as is practicable in the circumstances. Nevertheless despite the advanced and proactive nature of this regime, it is never a complete response to a predictive assessment by the Tribunal under section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant and has been raised), and such other issues as may be pertinent.
It is important to keep in mind the differences between sub-sections (a), (b) and (c) of section 237. Even if a proposed act is not likely to interfere in the ways specified in sub-sections (a) or (b), it could still be likely to involve major disturbance of the land or waters concerned.
In this matter, the evidence by the native title party about likely major disturbance on the licence area does not go beyond the ‘generic’ material from Mr Frith and Mr Foy, and the evidence by Mr Raggett is very limited with respect to the licence area.

In paragraphs [28] to [30] above I have already referred to the difficulty of giving the material from Mr Frith and Mr Foy specific application to the licence area, in the absence of specific supporting evidence.

[100] Some concerns are expressed by Mr Raggett at paragraphs [3] and [6] of his affidavit, but they do not go to the question of whether it is likely that major disturbance will occur. Given the processes for consultation that have already been described with respect to section 237(b), the fact that Mr Raggett has brought his concerns to attention makes it less likely that major disturbance will occur at any of the places mentioned. The further question however, is whether major disturbance is likely anywhere else within the land or waters concerned, or whether rights will be created whose exercise is likely to involve such major disturbance.

[101] In assessing the likelihood of major disturbance by exploration activities in the licence area, the factors working against that likelihood include:

-   the scant evidence relating to community or social activities of the native title claim group in the licence area;
-   the evidence of the grant of previous exploration licences and the lack of specific evidence about any past major disturbance in the licence area or likely major disturbance in the future;
-   the absence of any material indicating that the licence area has particular environmental or geological features that call for special consideration;
- the requirements of sections 35 to 37 of the Mining Management Act that exploration involving ‘substantial’ disturbance must not be carried out unless an Authorisation is first obtained, and that conditions may be imposed requiring the grantee to minimise disturbance;
-   an argument that ‘major’ disturbance involves a greater degree of disturbance than ‘substantial’ disturbance;
-   the difference in nature between the proposed exploration activities and mining activities, and the lesser likelihood of ‘major’ disturbance in exploration activities;
-   the provisions of the consultation and complaint provisions of conditions 6 and 25 of the Second Schedule conditions;
-   the regime of statutory provisions, conditions and regulatory processes that not only are applicable, but are brought to the attention of the grantee party (particularly those in the Second Schedule);
-   the fact that the concerns of the native title party as to the potential impact of exploration activities have been brought to the attention of the grantee party;
-   the nature of the work program proposed by the grantee party; and
-   the stated intentions of the grantee party to comply with all regulatory requirements and to observe its own policies, and the objectives and processes of the Memorandum of Understanding and model agreement.

[102] As to the concerns about exploration generally that have been expressed in the contentions of the native title party, in my opinion there is no sufficient evidence to support the likelihood of major disturbance in the licence area as the result of exploration activities in the sense explained in Dann v Western Australia, under either limb of section 237(c).

Conclusion as to section 237(c)

[103] On the evidence, I am satisfied that there is no real chance or risk that the proposed act will 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. In my opinion, the proposed act is an act attracting the expedited procedure within the meaning of section 237(c) of the Act.

Conclusion as to section 237 generally

[104] I have examined and taken into account all of the evidence that has been submitted, together with all of the contentions by each party. The evidence includes that which is specific to this particular inquiry, as well as the government party’s Standard Exhibit, the ‘generic’ material and the Standard Documents submitted by the native title party. I have also taken into account the findings and commentary on the interpretation of the Act and other legal issues set out in recent Tribunal reasons for determination relating to objection inquiries in the Northern Territory, particularly those referred to in paragraph [17] above.

[105] With respect to the requirements of section 237, I am satisfied that the grant of the proposed exploration licence is an act not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land or waters concerned; is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the holders of native title in relation to the land and waters concerned; and 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.

DETERMINATION

[106] The determination of the Tribunal is that the grant of Exploration Licence 9925 to Ashton Mining Limited is an act which attracts the expedited procedure under the Native Title Act 1993 (Cth).

Professor Douglas Williamson QC.

Member

5 December 2002