Billy Coolibah and Others on behalf of the Gurdanji and Garawa Peoples/Ashton Exploration Australia Pty Limited/Northern Territory

[2002] NNTTA 220

NATIONAL NATIVE TITLE TRIBUNAL

Billy Coolibah and Others on behalf of the Gurdanji and Garawa Peoples/Ashton Exploration Australia Pty Limited/Northern Territory, [2002] NNTTA 220
(21 October 2002)

APPLICATION NO:     DO01/57

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

-  and  -

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

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

-  and  -

Ashton Exploration Australia Pty Limited (Grantee Party)

-  and  -

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:  21 October 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

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

1. 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 22550 (‘the proposed tenement’) to Ashton Exploration Australia Pty 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.

2. The proposed tenement (‘the licence area’) is 137 blocks (approximately 451 square kilometres) in the Mallapunyah locality, and is wholly within Perpetual Pastoral Lease (‘PPL’) 1051, known as McArthur River.  It is an irregular shape:  the longest distance north-south is about 30 kilometres, and the longest distance east-west is about 38 kilometres.

3. 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.

4. An application (Form 4) objecting to inclusion of the proposed grant in an expedited procedure was lodged on 6 July 2001 within the statutory time period, 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.

5. 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

1. 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

1. 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.

   (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.

1. The native title party submitted the following evidence:

   (1)Affidavit affirmed by Roy Dixon (8 November 2001), with attached map of the licence area and surrounding country.

   (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)Extracts from the Carpentaria Downs/Balbirini Land Claim No 160, namely pages 39, 40, 45 and 58.

2. 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.

3. 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.

4. 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.

5. 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 in detail at paragraphs [28] and [29] below.

The expedited procedure provisions

1. 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.

2. 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.

3. 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.

4. 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

1. 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 (‘Billy Coolibah’).

Native title party evidence

1. The affidavit of Roy Dixon states:

   I, Roy Dixon of Corroboree Hostel, Katherine, in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:

   1.I live at Corroboree Hostel in Katherine. I am here for the dialysis.

   2.I am the applicant in the McArthur River native title determination application (DC00/27). The area of the application includes the area of ELA 22550. I have seen a map of the area of the ELA. Now produced and shown to me marked “RD-22550”. Is a map of the ELA and the surrounding area.

   3.Old McArthur River Station is in the ELA area.

   4.The McArthur River mine goes underneath the river. The Rainbow Serpent is still there now, on top in the river. The river can’t go dry. That Rainbow belongs to that place. Another Rainbow came down form Catfish Hole, Ngumanbaja, on the Glyde River near Merlin Mine, and from Amelia Creek, down to the McArthur River, to Jirriminni waterhole where the mine goes underneath.

   5.Balanmini is a long hill right on the plain, north east from the old McArthur River station. That Rainbow Dreaming is right near that old airstrip. It’s shown on the map. All the trees are the Rainbow Serpent. If they cut the trees, you see oil come. Balanmini is a long one, a hill. They can’t cut that rock, Balanmini because that Rainbow song goes in that hill now.  It’s the same rainbow as at McArthur River Mine. He stays there at Jirrinminni. The Dreaming is Stinking Turtle.

   6.That same Rainbow comes from Catfish Hole, Ngumanbaja. It is milky on one side and clear on the other. A mining company has already been there. Then the Rainbow goes to Amelia Creek, south east from old station; and to Kadkuwaya. Then the Rainbow travels through Mumumanini, which is one hill; to Balinmini; and Jirrinminni. They can’t cut Balanmini or Mumumanini. It’s the same for all those places.

   7.The Abner Range is Gamanja. It is Gurdanji country. Gulangapu is a spring on the side of the Abner Range. There is a waterfall coming down.

   8.Dungamini Spring is just outside the south west corner of the ELA, on top of the range. It is a special place; it is Lightening Dreaming mixed with Yungkumala, Kangaroo. That Lightening, he will kill you. Early days, one young fella married the wrong person. The Lightening Dreaming killed him and his wife. Anything wrong, that Dreaming, he’ll kill you. The old people chucked lightening down the river.

   9.The mining company can go there, but they can’t take anything.

   10.That spring up on top of the Range, you can’t take anything. It’s a dangerous place. Don’t go close. Only the Junggayi for that place can go there safely.  It is dangerous to land a chopper next to the waterhole. It’s got to land about two hundred meters away. If the mining company goes too close, the rain cloud would come out and kill him.

   11.It’s my mother’s uncles’ country.

   12.There is one big hill near old McArthur station. Dudupupa is a big high hill with the biggest mob of caves there. It’s all Red Kangaroo Country. It’s a special place, a camping place. People still camp there. It’s on the Range on the south side of the river, between Kilgour River and the McArthur River. It’s black soil country.

   13.We go fishing at Eight Mile Waterhole, Gulbalyi. We used to fish all day. There’s no road and black soil up from Eight Mile. All that Ryan’s Bend mob, Gordon Lansen’s mob, and the Goolminyini go there to get killer from the station. There is a good manager there. Ryan’s Bend is on Narwinbi Aboriginal Land Trust about 30 kilometres from Borroloola.

   14.Ganjarani is near Bessie Spring. Yungkumala Kangaroo is in that place. His wife is called Warungkala. It is a big ceremony waterhole. They used to do business there, for young men, all kinds. They do not do ceremony there now, since 60 years or so ago. They have ceremony in Borroloola now.

   15.The mining company can go there to Ganjarani. They can go because people go swimming and fishing there. But the mining company can’t have a camp at Ganjarani. They have to go back and camp at McArthur Mine.

   16.They have to be careful about putting rock or oil in the McArthur River. They’ll have to be careful, because it will wash all the way down to Borroloola and kill all the fish. One dam broke up at the McArthur River Mine. Water came down, black through to the sea. All the fish were dead, floating because silver and lead came out. They told us not to swim or fish. The water was poison. They had to dam it up again. It’s OK now.

   17.On the north side of the McArthur River near old station, there’s one big coolibah treein the bank at Bullock Crossing; it’s Rainbow Dreaming. It’s called Walungkangara/Budjimala; it’s got two names. It’s the same Rainbow as Balinmini. The tree is fenced, might be by Sacred Sites. The company can’t cut that tree down.

   18.Yungkumala Kangaroo came down Leila Creek from Carpentaria Station. Yungkumala pushed out to Judana from Three Knob, and went past Marara, back to Ganjarani and Dunganmini.

   19.Garambirini Waterhole on Emu Creek is a Mambaliya White Cockatoo Dreaming. Garambirini is like a well. They put a rock over it so you can’t fall down. You can put a bucket down with a strap. The Stingray, Waranguri, goes up half way. The Rainbow goes up too.

   20.I show people my country. For Rrumbarriya country, I am Junggayi. I don’t want to see anything damaged. If the owner or anybody else damages the place, I’ve got to charge him.

The map referred to in paragraph 2 above is attached to the affidavit.

1. 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.  The ones identified are Borroloola, Ryan’s Bend, and Balbirini.  The government publication “Northern Territory Aboriginal Communities” (15 April 2002) and the accompanying “Aboriginal Communities Map” (updated 14 February 2002) show that Ryan’s Bend is about 40 kilometres, and Borroloola about 70 kilometres, north-east along the Carpentaria Highway from the nearest (northern) boundary of the licence area.  Balbirini is just to the west of the western boundary of the licence area, about 5 kilometres in a direct line, and about 9 kilometres by road to the nearest point.

2. 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.

3. The information provided by AAPA lists recorded Aboriginal sacred sites and ‘other places’ (ie not sacred sites) within the licence area.  Outside the licence area there are many sites to the north-east along the McArthur River, and there is another cluster to the south-east.  There are a number of sites within 3 kilometres or less of the north, south, east and western boundaries of the licence area.  The AAPA site information is examined in detail 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.

1. 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.

2. 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).

3. 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 evidence given, or submissions made, by Messrs Stead, Foy and Frith, and assessing the weight to be given in the absence of specific factual evidence in the particular matter under consideration.  Those observations will not be repeated, but are adopted in the present matter.

Government party evidence

1. The map submitted by the government party shows that the licence area lies wholly within McArthur River PPL 1051.  The Carpentaria Highway passes through the licence area, as does the McArthur River.  The Tablelands Highway runs more or less parallel to the western boundary, a few kilometres west of it.  Various station tracks exist within the licence area, particularly (but not exclusively) to the south of the McArthur River.

2. Information submitted by the government party states that there are no other current mining tenements on the licence area.  However, there have been numerous past exploration licences.  These are referred to later.

3. The licence area is bounded to the south, west and north by current Exploration Licence Application areas, and to the south-east by a granted Exploration Licence (EL9534) and a Substitute Exploration Licence (SEL9779).

4. 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.  In it particular attention is drawn to the provisions of the Northern Territory Aboriginal Sacred Sites Act 1989 concerning consultation with the Aboriginal Areas Protection Authority (AAPA); the terms of clause 6 (formerly clause 18) of the Second Schedule, which requires meeting with native title claimants before commencing exploration activities other than reconnaissance; the requirements for prior authorisation of any proposed substantial disturbance activities; and the provisions in clause 4 of the First Schedule as to compensation payable to a native title holder for certain prescribed mining acts.

   (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.  These contain a number of provisions particularly relevant to the protection of native title rights and interests that might otherwise be affected by proposed exploration activities.  The conditions are 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.  The current Second Schedule conditions are reproduced below:

   General Principles

   1.The Licensee shall carry out its activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular, by ameliorating:

   (a)     any interference directly with the carrying on of community or social activities of registered native title claimants or holders; or

   (b)     any interference with areas or sites of particular significance, in accordance with the traditions or registered native title claimants or holders.

   2.The Licensee shall carry out its activities in such a way as to minimise disturbance to the environment of the licence area, in particular, by minimising:

   (a)     interference with the use of the land by other persons;

   (b)     the disturbance of flora, fauna and other natural resources;

   (c)   pollution, including soil, water and atmospheric pollution;

   (d)     the incidence and effects of soil erosion.

   3.Subject to the provisions of the Mining Act and the Mining Management Act, the Licensee shall in the course of their operations remain subject to the provisions of other relevant legislation.  The Licensee shall ensure that all exploration personnel and their contractors and agents are familiar with such legislative requirements.

   4.If and when the Licensee applies to the Minister for a lease which would allow productive mining, any registered native title claimants or holders are to be informed of this fact in writing so as to signal that another future act process may follow which allows them to exercise procedural rights.

   5.To the extent possible the Licensee should employ persons and contractors resident in or around the licence area and give them the opportunity of quoting or tendering for contract work.

   Consultations with Native Title parties

   6.    

   (a)     The Licensee shall, prior to the commencement of exploration activities other than reconnaissance, convene a meeting on the licence area (or the nearest convenient locality) with registered native title claimants or holders to explain the exploration activities.  The Licensee may also invite the relevant pastoral lessee(s) or landholders to this meeting.

   (b)     Notice of the meeting shall be by letter and shall be posted to the registered native title claimants or holders and the representative body not less than 17 days before the meeting and shall nominate the date, time and place of the meeting.

   (c)     The Licensee must have regard to representations made to it at the meeting regarding any aspect of the exploration activities which raises concerns.  These representations may deal with access procedures to particular areas of land within the licence area.

   Site Protection

   7.All exploration personnel and their contractors and agents shall be instructed on the legal necessity to protect sacred sites and other significant archaeological sites and structures which may exist within the licence area.

   8.Prior to carrying out any work in the licence area the Licensee must consult with the Aboriginal Areas Protection Authority and inspect the Register of Sacred Sites.  A Licensee wishing to carry out work may apply for an Authority Certificate.

   Authorisation – Substantial Disturbance

   9.Pursuant to s.166(1A) Mining Act, all exploration licences are granted subject to the condition that the holder of the licence or the holder’s agent must also hold the relevant Authorisation in accordance with the Mining Management Act before carrying out on the licence area any exploration operations or works involving substantial disturbance (such as drilling, costeaning, gridding, bulk sampling, camp establishment or road construction).

   10.Pursuant to s.35 & 37 Mining Management Act, an application for such Authorisation is required prior to the commencement of activities and is to be accompanied by the Mining Management Plan for the activity.

   (a)   The Mining Management Plan is to include particulars on the management of environmental issues.

   (b)     The Minister may refuse grant of an Authorisation.

   (c)   A granted Authorisation is subject to the condition that the operator must comply with the current Mining Management Plan, submit a security bond and any additional conditions that the Minister may determine.

   11.Notwithstanding the conditions of an Authorisation in accordance with the Mining Management Act, the Licensee shall in addition adhere to the conditions stated herein.

   Minimising of Environmental Impact

   12.The Licensee shall not bring firearms or traps onto the licence area and shall not take or kill any wildlife.

   13.All structures, facilities, survey markings or other related infrastructure shall be of a temporary nature and shall be removed from the area at the completion of the exploration programme unless approved otherwise in writing by the Minister.

   14.The Licensee shall not use fire, unless approved in writing by the Minister, except for the purposes of preparing food or heating water and appropriate steps shall be taken to prevent bush fires.

   15.The Licensee shall not construct new vehicle tracks unless unavoidable.  New tracks should be constructed at the minimum width possible to conduct the exploration programme, avoid long straight stretches, and be constructed with sufficient furrows to provide appropriate drainage.

   16.The Licensee shall keep clearing and/or disturbance of vegetation to a minimum; with particular care taken in regard to preserving mature trees and vegetation along watercourses.

   17.The Licensee shall take such steps as are reasonably practical to prevent the spread of noxious weeds, including the washing down of vehicles and removal of grass seeds before moving vehicles and equipment to a new area.

   18.No sites or structures that may have historic significance shall be disturbed or interfered with in any way unless prior written approval has been given by the Minister.

   19.The Licensee shall take such steps as are practical to minimise disturbance to the soil, rocks, rock formations, creeks and watercourses.

   20.The Licensee shall take all precautions necessary to prevent contamination of underground and surface waters in the licence area.

   21.Where artesian groundwater is encountered during drilling, the Licensee shall advise the Minister of its occurrence and protect the water from wastage, pollution, deterioration or undue depletion.

   Environmental Rehabilitation

   22.Following any soil disturbance, and subject to the Mine Management Plan, the Licensee shall replace topsoil as near as possible to its original profile and contour.

   23.The Licensee shall remove all rubbish and waste from the licence area and shall comply with directions of the Minister regarding disposal.

   24.To the extent possible the Licensee should choose drillhole and excavation sites to minimise environmental impact and, subject to the Mine Management Plan, after completion of drill holes, the collar should be sealed off and casing plugged. Guidelines for this activity are at item 15. of the Mining Operation Pack.

   Complaint Mechanism

   25.Should any native title claimant or holder lodge a written complaint with the Minister that exploration activities are being conducted in a manner that adversely affects native title rights and interests in the licence area, the Minister may do one or more of the following:

   (a)   seek an explanation in writing about the matter from the Licensee;

   (b)     request the Licensee attend a meeting with the Minister to discuss the matter;

   (c)   request the Licensee attend a conference with the Minister and the complainant with a view to resolving the matter;

   and, having done one or more of the foregoing, may do one or more of the following:

   (d)     direct the Licensee to carry out rectification work;

   (e)   carry out rectification work at cost to the Licensee in accordance with s.166(3) of the Mining Act;

   (f)   subject to the Mining Act, take any other action, including the cancellation of the licence, as the Minister considers appropriate.

   Definitions

   “Licensee” means the grantee of the exploration licence and includes it workers, employees, contractors, agents and any other person appointed by the Licensee as operator of the site pursuant to s.10 of the Mining Management Act.

   “Minister” means the Northern Territory Minister for Business, Industry and Resource Development or Delegate.

   (4)A Mining Operation Pack, dated 7 May 2002, prepared by the Mines Division.  It comprises 20 sets of documents, including an electronic version.  The pack includes information application forms, pro-forma Mining Management Plan, report forms and other documents, which will assist proponents to submit material in support of an application for authorisation under the Mining Management Act, and to conduct operations and provide reports in compliance with the various obligations of a tenement holder.  An advisory note refers to the Sacred Sites legislation.

   (5)An Information Sheet, ‘Aboriginal Areas Protection Authority – Sacred Sites Avoidance in the Northern Territory’.  This has also been updated as at August 2002. It notes that Northern Territory law provides protection for all places of significance according to Aboriginal tradition (sacred sites or sites of significance) whether or not they have been ‘declared’, ‘registered’ or otherwise officially recorded.  The document explains the procedures under the Northern Territory Aboriginal Sacred Sites Act 1989. Information may be sought from the AAPA on the existence of sites within a given project area. It is pointed out that the information held by AAPA is limited to existing records of sites. The procedure for obtaining an Authority Certificate is explained. If application is made for a Certificate (which indemnifies the holder against prosecution under the Act if the holder has acted in accordance with the provisions of the Certificate), there will be consultation with Aboriginal custodians for the area in question, meetings arranged between the custodians and the proponent, liaison with all parties, and assistance provided for reaching an appropriate agreement about site avoidance. If, following consultation, the Authority determines that the proposed work or use of the land could proceed without substantive risk of damage to or interference with a sacred site on or in the vicinity of the land, or an agreement has been reached between the custodians and the applicant, the Authority shall issue the Certificate. The Certificate may include conditions on which the work may be done. The information sheet also draws attention to the provisions of the Northern Territory Heritage Conservation Act 1991, which protects skeletal remains, movable objects, stone tools and other material items.

   (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).

5. 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)Section 24 of the Mining Act.  This provides that the licensee will:

   (b)     not extract or remove more material than amounts for authorised sampling purposes;

   (j)     conduct activities in such a way as not to interfere with existing roads etc or the lawful activities or rights of any person on or in relation to land adjacent to the licence area;

   (k)     not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory, except in accordance with that law.

   (2)Section 24A.  This gives the Minister general powers additional to those derived from sections 24 and 166, to impose conditions in an exploration licence.  This section provides a statutory foundation for the conditions in the Second Schedule.

   (3)Section 166.  This imposes general conditions upon various tenements, including exploration licences.  Of particular note is subsection 166(1A), effective 1 January 2002.  It provides that all exploration licences are granted subject to the condition that the holder of the licence must also hold the relevant Authorisation before carrying out on the licence area any exploration operations or works involving substantial disturbance.

   (4)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.  For the purposes of this Act, ‘mining activity’ by definition includes exploration for minerals, and corresponding definitions apply:

   -       Section 35(1) provides that the operator for a mining site must not carry out mining activities on the site unless it has first been granted an Authorisation.  However, section 35(5) provides that section 35 does not apply to the carrying out of exploration for minerals unless it is to involve substantial disturbance of the surface of the site.  If substantial disturbance is contemplated, then a mining management plan must be submitted (section 35(3)).

   -       Section 36(2) provides that before the Minister may grant an Authorisation, he must be satisfied that the management system will promote protection of safety and health of persons and the environment on site, and that the management of the mineral resources will be in accordance with good mining practice.

   - Section 37(1) provides that an Authorisation may be subject to conditions specified.

1. 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 [28(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.

2. 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

1. The government party has submitted the application dated 14 April 2000 by Ashton Exploration Australia Pty Limited for the grant of the exploration licence. A licence is sought for 6 years.

2. The application states that the licence area lies in a region considered prospective for diamondiferous kimberlites, and will be systematically explored by staged exploration.

3. The first pass exploration proposed for year 1 will involve interpretation of Landsat TM Imagery, ground mapping, reconnaissance and follow-up stream and loam sampling and bulk stream sampling.

4. The proposed first year expenditure (estimated as at April 2000) is a minimum of $32,000.  The extent of further work in subsequent years will depend upon the results obtained from previous work programmes.  If results prove encouraging the proposed expenditure for years 2 to 6 is estimated at $35,000, $40,000, $60,000, $80,000 and $100,000 respectively.  If these later year activities take place they will involve follow-up stream and loam sampling, bulk stream sampling, airborne geophysical surveys and drill testing by Rotary Air Blast (RAB) and Reverse Circulation (RC) of any anomalous results.  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

1. Material provided by the government party includes information from the Department of Mines and Energy 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 a number of past tenements ‘over’ the licence area.  Twenty six exploration licences are listed.  There is no indication of what portions of the licence area were covered.  The earliest grant listed is EL 597 (granted 20/09/1972 and surrendered 04/01/1977), and the last grant listed is EL 9496 (granted 11/10/1996 and surrendered 02/09/1998).  It is noted however, that several exploration licences granted in 1991 (EL 7228 and EL 7269) were not terminated until 10/09/1999, and EL 8322 (granted 08/06/1994) was surrendered 08/04/1999.

Prior exploration activities

1. There is no material provided to show what exploration work was performed, or where.

Further grantee party evidence

1. Reference has already been made to the proposed exploration activities.  Further evidence by the grantee party is set out below.

2. The affidavit of Jeffrey Wilkie states:

   On 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 Kimberly region of Western Australia, Queensland and the Northern Territory.

   3.   Ashton Exploration Australia Pty Ltd (“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 22550 pursuant to the Mining Act.

   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), 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.

3. 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

1. 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

2. It is noted that in paragraph 3 of his affidavit Mr Wilkie specifies the expression ‘Rio Tinto’ as a short form of reference to the grantee party Ashton Exploration Australia Pty Ltd.  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.

3. 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, 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.

4. 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.

5. It is my understanding that an equivalent approach has been adopted by the grantee party Ashton Exploration Australia Pty Limited (as a member of the Rio Tinto group of companies) 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 Exploration Australia Pty 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

1. 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.

2. As noted in paragraph [19] above, there is no evidence of any Aboriginal community on the licence area.

3. 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.

It is contended that the community or social activities of the native title claim group include:

(a)foraging (Land Claim Report, paragraph 4.9);

(b)hunting, fishing and gathering bush tucker (affidavit of Roy Dixon paragraphs [13], [15]);

(c)religious activities (Roy Dixon [14]);

(d)quiet enjoyment and camping (Roy Dixon [12]);

(e)actively looking after country by visiting and maintaining sites (Roy Dixon [17]).

It is contended that these activities occur ‘over some or all of the licence area, and in its vicinity’.

1. 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.

2. It is necessary to examine the evidence, rather than the contentions, in relation to factual matters that are really in issue.

3. As to foraging, reliance is placed upon the findings in the Carpentaria Downs/Balbarini 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 Roy Dixon stating that ‘For Rrumbarriya country, I am Junggayi’, 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 adjoining licence area.  I am unable to reach any conclusion about traditional rights of the native title claim group to forage over the licence area, let alone anything concerning the exercise of any such rights.

4. The submission about fishing, based on paragraph [13] of Mr Dixon’s affidavit, relates to Eight Mile Waterhole, Gulbalyi.  This place is marked on the map attached to the affidavit, and is about 10 kilometres away from the nearest boundary of the licence area, downstream on the McArthur River.

5. The submission about swimming and fishing, based on paragraph [15] of the affidavit, relates to Ganjarani, near Bessie Spring.  According to Mr Dixon’s map, this is near the centre of the licence area.  Mr Dixon states that ‘The mining company can go to Ganjarani.  They can go because people go swimming and fishing there.  But the mining company can’t have a camp at Ganjarani.  They have to go back and camp at McArthur Mine.’ (paragraph [15]).

6. The submission about hunting and bush tucker, based on paragraphs [13] and [15] of the affidavit, is simply not borne out by those paragraphs.  There is no reference to hunting or bush tucker anywhere in Mr Dixon’s affidavit.

7. The submission about quiet enjoyment and camping, based on paragraph [12] of the affidavit, relates to Dudupupa.  This place is marked on Mr Dixon’s map, within the licence area about 2 kilometres from the north-east boundary.  ‘People still camp there’ (paragraph [12]).

8. The submission about religious activities, based on paragraph [14] of the affidavit, relates to a ceremony waterhole at Ganjarani, near Bessie Spring, which is close to the centre of the licence area.  However, paragraph [14] goes on to state that ceremony ceased there 60 years or so ago, and is now conducted in Borroloola.  The waterhole is now used for swimming and fishing.

9. The submission about looking after country, based on paragraph [17] of the affidavit, is not borne out by paragraph [17]. There is no reference to this matter, other than the statement by Mr Dixon at paragraph [20] that ‘I show people around my country. For Rrumbarriya country, I am Junggayi. I don’t want to see anything damaged. If the owner or anybody else damages the place, I’ve got to charge him.’

10. 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 451 square kilometres, is very scant.  Of the communities mentioned, Ryan’s Bend and Borroloola are well outside the licence area.  There is evidence that the Ryan’s Bend mob go to Eight Mile Waterhole, Gulbalyi, but that is about 10 kilometres away from the nearest point of the licence area.  Balbirini is relatively close to the licence area, but no details are given as to the extent to which members of the native title claim group live there, or the nature and extent of their activities on the licence area. 

11. The only activities specified by Mr Dixon within the licence area are some camping at Dudupupa and swimming and fishing at Ganjarani.  The evidence does not support a conclusion that there are any significant contemporary community or social activities of a traditional nature anywhere else within the approximately 451 square kilometres of the licence area.

The contentions and evidence about likely direct interference

1. 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 directly impact 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.

2. 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 evidence about the proposed exploration program set out in the licence application.

3. 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 McArthur River pastoral lessee) prior mining and/or exploration grants, and restrictions imposed by the general law.

4. I have set out at length, in paragraphs [28] to [30] above, 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.

1. 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.

2. 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.

1. 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 [39] to [42] above.  I have also referred to more recent developments at paragraphs [43] to [45].  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)

1. 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.

2. The evidence of Roy Dixon, as distinct from standard-form assertions in contentions by the native title party, is extremely slender as to past and present community or social activities within the licence area, and even more slender about where and in what way the proposed exploration activities on the licence area are likely to interfere with those community or social activities.

3. 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.  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 Dixon.

4. On the evidence, 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

1. 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.

2. 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.

3. 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

1. The native title party contends that there are areas or sites of particular significance with which the grant of the exploration licence is likely to interfere.  They are listed as follows:

   (a)Ngumanbaja (affidavit of Roy Dixon [4], [6])

   (b)Jirinmini (affidavit of Roy Dixon [4], [5], [6])

   (c)Balanmini (affidavit of Roy Dixon [5], [6])

   (d)Mumumanini (affidavit of Roy Dixon [6])

   (e)Dunganmini (affidavit of Roy Dixon [8], [9], [10],[11], & [18]; Land Claim Report [4.4.4])

   (f)Gulangapu (affidavit of Roy Dixon [7]; Land Claim Report [4.4.2])

   (g)Dudupupa (affidavit of Roy Dixon [12])

   (h)Ganjarani (affidavit of Roy Dixon [14], [15];&[18]; Land Claim Report [4.4.2])

   (i)Walungkangara/Budjimala (affidavit of Roy Dixon [17])

   (j)Garambarini (affidavit of Roy Dixon [19]).

2. Only two of the areas or sites listed above are shown to be within the licence area.  They are marked by Mr Dixon on the map attached to his affidavit as follows:

   (1)Ganjarani.  This is near Bessie Spring, in about the centre of the licence area.  It appears to correspond to the AAPA listed site 6064-11 ‘Gandjarrani (Bessie Springs)’ and is given a status of 30.  I do not set out the AAPA description of this site (or any other site) due to confidentiality considerations, but it is consistent with Mr Dixon’s reference to a waterhole.

   (2)Dudupupa.  This is near the eastern boundary of the licence area.  It may correspond to one or other of the AAPA listed sites 6064-24 ‘Judububa’, situated on the Kilgour River floodplain north-east from the McArthur River Station, or 6064-25 ‘Judububa Cave’, situated on Dudububa Hill, above the level of the surrounding Kilgour River floodplain.  Each site is given a status of 10.

3. Dunganmini is a site just outside the licence area, located about 2 kilometres from the south-west corner.  It is marked by Mr Dixon on the map.  It would appear to be either (or both) of AAPA listed sites 6064-4 ‘Dunggunmini Scree Spring’, located to the south-east of Top Crossing, or 6064-5 ‘Dunggunmini Spring’, located approximately 1.5 kilometres south of Top Crossing.  Each site is given a status of 10.

4. Other areas or sites listed in paragraph [74] above, and marked by Mr Dixon on the map or listed by the AAPA are located outside the licence area as follows:

Ngumanbaja is outside the region covered by the AAPA material provided in this matter.  It is on the Glyde River about 35 kilometres east of the main body of the licence area, or 12 kilometres from the easternmost arm of it.  It is referred to in my Reasons for Determination in Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, 15 July 2002.

Jirinmini (AAPA 6165-5, status 40) and Balanmini (AAPA 6165-77 ‘Balinmini’, status 10) are located about 17 kilometres north-east.

Mumumanini (query AAPA 6165-23 ‘Mumunini’, status 40) and Garambarini (AAPA 6165-66, status 10) are about 18 kilometres and 36 kilometres respectively north-east.

Gulangapu (AAPA 6064-21 ‘Gulangabu (Beetle Spring)’, status 10) is about 12 kilometres south-east.

1. Walungkangara/Budjimala is not marked by Mr Dixon on the map, and is not listed by either of those names in the AAPA site references.  Mr Dixon indicates that the site is a large coolibah tree ‘on the north side of the McArthur River near old station … in the bank at Bullock Crossing’ (paragraph [17]).  The reference to the ‘old station’ suggests that the site is about 17 kilometres to the north-east of the licence area.  It is possible that this is the site listed by the AAPA as 6165-8 ‘Coolibah Tree’ located 700 metres north-east of the Old McArthur River Homestead, 2 kilometres south of Barney Hill.  Similarly, site 6165-65 refers to the old station bullock crossing on the McArthur River in that general vicinity.

2. In addition to the areas or sites referred to by Mr Dixon, there are more sites listed by the AAPA within the licence area.  They are recorded sites numbered 6064-1, 2, 6, 8, 9, 12, 17, 18, 19, 28, and 6164-28.  These are mostly status 10.  There are also ‘other places’ (ie not sacred sites) numbered 6064-7, 15, 16.  These are status 5.

3. Similarly, in addition to the areas or sites referred to by Mr Dixon, there are more areas or sites listed by the AAPA that are outside the licence area, but within 3 kilometres of a boundary.  These are numbered 6064-10, 21, 22, 23, 27 and 6164-1, 7, 22, 23 and 30.  These occur to the south-west, north-west, north-east and east, and are mostly status 10.  There are also ‘other places’ 6064-14, 6164-24.  These are status 5.

4. The AAPA lists many more areas or sites in the wider region, with the heaviest concentrations to the north-east along the McArthur River for 30 kilometres and to the south-east for about 20 kilometres.

The significance of the sites

1. 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.  As it happens, in this matter the Register discloses many more sites than those listed by the native title party (as set out in paragraph [74] above), especially within the licence area.

2. 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 [11], 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.

3. The significance of Dudupupa is described by Mr Dixon at paragraph [12] of his affidavit.  The AAPA description refers to the elevation of the site or area above the surrounding floodplain of the Kilgour River, which might explain why the area of the caves is suitable for camping.  There is some evidence of continuing use.  Mr Dixon describes the area or site as a ‘special place’, and in the circumstances I accept that it is likely to be an area or site of particular significance within the licence area.

4. The significance of Ganjarani is described by Mr Dixon at paragraphs [14], [15] and [18] of his affidavit, and the native title party’s submission also refers to paragraph [4.4.2] of the Land Claim Report.  Ceremonies were discontinued there 60 years ago, and are now performed in Borroloola.  It seems likely that if the site has been of particular significance in the past for ceremonial reasons, that is no longer the case.  The waterhole is now used for swimming and fishing.  Given the history of the site however, as well as the current use for different purposes, this waterhole may be of greater significance than others.  Mr Dixon states that ‘The mining company can go there but … can’t have a camp …’.  This suggests a significance beyond the ordinary, particularly as Mr Dixon expressly refers to this particular site and not to a number of others in the near vicinity recorded by the AAPA.  I am persuaded that it is likely that Ganjarani qualifies as an area or site of particular significance.

5. Dunganmini Spring is just outside the south-west corner of the licence area, but Mr Dixon explains at paragraphs [8], [9] and [10] that it is a special place, and a dangerous place.  It is associated with the Lightening Dreaming, which can kill people.  Only the Junggayi for that place can go there safely.  For the reasons explained by Mr Dixon, I accept that Dunganmini Spring is an area or site of particular significance.

6. Mr Dixon associates most of the other areas or sites that he mentions outside the licence area with the Rainbow Dreaming.  He attaches significance to the places where the Rainbow travelled, and expresses concern at the possibility of mining activity (‘They can’t cut Balanmini or Mumumanini …’).  I am satisfied at Mr Dixon’s ability to speak for this country, and accept that many, if not all, of the places associated with the Rainbow Dreaming are areas or sites of particular significance in accordance with the traditions of the native title claim group.

The risk of interference with areas or sites

1. Areas or sites of particular significance that are located within the licence area are plainly relevant.  In my opinion, these are Dudupupa and Ganjarani.  It has been accepted by the Tribunal that an area or site that is not located on the licence area may still be relevant.  I include Dunganmini in this category, due to its particular significance and close proximity to the licence area.

2. 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].

3. The native title party has not provided any evidence about the effect of activities, if any, between 1972 and 1999 under the earlier exploration licenses over the licence area, as listed in paragraph [36] above.

4. A particular evidentiary concern is noted.  There is very little evidence provided by the native title party about the likely impact of the proposed exploration program upon the areas or sites of particular significance that have 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 necessity for the consultation process within the regulatory regime.

5. In what may be an attempt to overcome this 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.

1. 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.

1. 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, refer to paragraphs [22] to [24] above concerning this material.

1. 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).

1. 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 regulatory scheme in place since January 2002 has been set out at length in paragraphs [28] to [30] above.

1. 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 [39] to [42] above.  In addition there is now the Memorandum of Understanding and model agreement referred to in paragraphs [43] to [45] above.

1. 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.

2. 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 Dixon in this matter 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)

[100] 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 any of the sites referred to by Mr Dixon or listed in the AAPA material. I am satisfied that there is no real chance or risk that the proposed act will interfere with areas or sites 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.

[101] It should be understood that if a matter arises for consideration in which the licence area is especially ‘rich’ in areas or sites of particular significance, and the grantee party does not have such comprehensive policies and processes concerning site-avoidance as the grantee party in the present matter (or at least an established track record of site-avoidance), then notwithstanding the extensive requirements of the regulatory regime, I may be less ready to accept that there is no real chance or risk of interference with an area or site of particular significance.  The regulatory regime is likely to be most effective when it is approached by a grantee party who has demonstrated a willingness and capacity to make it work.

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

[102] 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.

[103] The Tribunal has previously discussed the criteria applicable to section 237(c), and I have done so in Billy Coolibah.  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.

[104] 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.

[105] 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.

[106] 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 Dixon which for the most part is directed to places other than the licence area.

In paragraphs [22] to [24] 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.

[107] Some concerns are expressed by Mr Dixon at paragraphs [5], [6], [8] to [10], [15], [17], [20], but none of them go to the question of whether it is likely that major disturbance will occur at any of the places mentioned. Given the processes for consultation that have already been described with respect to section 237(b), the fact that Mr Dixon has brought these places to attention makes it less likely that major disturbance will take place at any of them. 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.

[108] 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 by the native title party 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.

[109] 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)

[110] 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

[111] 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.

[112] 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

[113] The determination of the Tribunal is that the grant of Exploration Licence 22550 to Ashton Exploration Australia Pty Limited is an act which attracts the expedited procedure under the Native Title Act 1993 (Cth).

Professor Douglas Williamson QC.

Member

21 October 2002