Billy Coolibah and Others on behalf of the Gurdanji and Garawa Peoples/Ashton Mining Ltd/Northern Territory
[2002] NNTTA 137
•15 July 2002
NATIONAL NATIVE TITLE TRIBUNAL
Billy Coolibah and Others on behalf of the Gurdanji and Garawa Peoples/Ashton Mining Ltd/Northern Territory, [2002] NNTTA 137 (15 July 2002)
APPLICATION NO: DO01/60
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Billy Coolibah and Others on behalf of the Gurdanji and Garawa Peoples (Native Title Party)
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Ashton Mining Ltd (Grantee Party)
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Northern Territory of Australia (Government Party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: Prof. Douglas Williamson QC
Place: Melbourne
Date: 15 July 2002
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – standard exhibit – generic material – whether spiritual or non-physical activities relevant to s 237(a) – whether site of particular significance – effect of Sacred Sites Act – whether act is likely to have any of the consequences specified in s 237 of the Native Title Act1993 (Cth) – the need for specific evidence – 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 J Sosso, 1 February 2002
Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, Deputy President Franklyn QC, 27 March 2002
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 Wilkie, Rio Tinto Exploration Pty Ltd
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) that it proposed to grant exploration licence 9768 (‘the proposed tenement’) to Ashton Mining Ltd (‘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 is 44 blocks (approximately 145 square kilometres) and covers perpetual pastoral lease 1051 (known as McArthur River) and Crown lease in perpetuity 1289 (known as Spring Creek) (‘the licence area’). The longest portion north-south is about 17 kilometres, and the widest portion east-west about 10 kilometres.
[3] On 20 December 2000 a native title determination application (DC00/27, D6031/00) was filed with the Federal Court of Australia (‘the McArthur River application’). The applicants are Billy Coolibah, Gordon Lansen and Roy Dixon on behalf of the native title claim group comprised of the Gurdanji and Garawa People (‘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 within the statutory time period, pursuant to section 32(3). The objectors are 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. All 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 consent of 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
[6] The following contentions were submitted to the Tribunal:
(1) Government party Statement of Contentions, 22 November 2001.
(2) Grantee party Statement of Contentions, 26 November 2001.
(3) Native title party Statement of Contentions, 28 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
[7] The government party submitted the following evidence:
(1) A map identifying
(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 proposed licence area and in its general locality;
(iii)the location and general details of various underlying tenures of land, both within the proposed 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 relevant Exploration Licence application, (with financial details in a sealed envelope marked ‘Financial Details-Confidential’) (the confidential status of financial details was lifted by consent by direction made 12 December 2001);
(ii)a schedule of all current mining tenure, both within the proposed licence area and in its general locality, including whether such grants were subject to the right to negotiate provisions of the Native Title Act; and
(iii)details of prior mining tenure, both within the proposed licence area and in its general locality, including the date of grant/expiry.
[8] The government party also submitted its ‘Standard Exhibit’. This comprises a folder of ‘Particulars’ provided on 22 November 2001. The government party relies upon the contents of the Standard Exhibit in all expedited procedures objection inquiries in the Northern Territory. Copies of the exhibit are ‘on file’ with the Tribunal, the Northern Land Council, the Central Land Council, and are made available to proposed grantees. The exhibit is updated from time to time. The contents are listed at paragraph [43] below. In brief, they comprise extracts from legislation, standard conditions that are contained in every grant of an exploration licence, and brochures, booklets, guidelines and other information relevant to the conduct of mineral exploration in the Northern Territory.
[9] The native title party submitted the following evidence:
(1) Affidavits affirmed by members of the native title claim group, namely Bruce Joy (27 September 2001) and Harry Lansen (28 September 2001).
(2) Affidavits affirmed by expert witnesses, namely Jeffrey John Wilson Stead (8 October 2001) and Mark Frederick Foy (8 November 2001). Annexure ‘MFF1’ to Mr Foy’s affidavit is a document ‘Exploration Activities’ prepared by him.
(3) Extract from the Carpentaria Downs (Balbirini) Land Claim Report, 27 January 1999, paragraphs 4.9 to 4.11.
(4) 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).
(5) 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 in the vicinity of the licence area recorded in the Register of Sacred Sites as at 4 December 2001, together with a schedule containing the name, brief geographical description, status and location of each site. A direction was made on 12 December 2001 preserving the confidentiality of this information.
[10] The grantee party submitted in evidence an affidavit sworn by Jeffrey Alexander Wilke (26 November 2001) together with annexures ‘JAW1’ (‘Rio Tinto Exploration - Australasian Region Community Relations Policy’) and ‘JAW2’ (‘Rio Tinto Exploration - Australasian Region Environmental Policy’).
[11] By direction made 12 December 2001, with the consent of the parties, the following ‘generic’ material was received in evidence:
(1) Memorandum by Member J 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 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 J Stuckey-Clarke.
(5) The ‘Standard Exhibit’ submitted by the government party, referred to in paragraph [8] above.
The expedited procedure provisions
[12] Subdivision P of Division 3 of Part 2 of the Native TitleAct 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
[13] Section 32 of the Native Title 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.
[14] 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.
[15] The key to the objection process and the present matter lies in the provisions of section 237.
[16] Section 237 provides:
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
[17] 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 J Sosso in Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13 (unreported) delivered 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 the following comments.
[18] There is an aspect in relation to which I would add a gloss. In paragraphs [49] to [62] Member Sosso discusses whether non-physical (ie, spiritual) aspects of carrying on community or social activities can be taken into account under section 237(a) since amendment in 1998. In seeking to interpret the meaning of the amended provisions, Member Sosso examines the passage of various proposed amendments, Parliamentary commentary upon them, and subsequent discussion of the amendments as enacted. At paragraph [56] he concludes that:
… The paragraph [237(a)] is no longer centred on an examination of community life but rather the manifestation of that life in the form of activities … It is clear that some activities have a spiritual dimension, and that the doing of a future act could interfere directly with those activities. However, if it was to be contended that paragraph (a) was at issue there would have to be material before the Tribunal that the future act would be likely to have a direct physical interference with activities which in turn would impact on the spiritual dimension of those activities. (emphasis in original text).
At paragraph [62] Member Sosso states ‘I am not prepared to go so far as to exclude all forms of non-physical aspects of community or social activities, but on the other hand, if there be a spiritual dimension it must be rooted in activities.’
[19] I respectfully agree with the views expressed, provided they be taken to mean that section 237(a) does not take account of likely interference with some spiritual or other non-physical concern in isolation from likely interference with some form of relevant physical activity. In my view, section 237(a) in its amended form is directed to likely interference with some form of physical activity. In a sense, it is beside the point that the activity may or may not have a related non-physical dimension. For example, interference with the conduct of a traditional cultural ceremony could possibly contravene section 237(a) but this is because of the physical aspect of the activity.
[20] Spiritual issues may become relevant under the provisions of section 237(c) as an element in the assessment of likely major disturbance to land or waters, once there is likely physical disturbance, according to observations by the Full Federal Court in Dann v Western Australia, as discussed by Member Sosso in Moses Silver at paragraphs [139] and [140]. It seems however, that the main thrust intended by Parliament for dealing with spiritual dimensions per se is to be found in the provisions of section 237(b), which apply to likely interference with areas or sites of particular traditional significance.
[21] Finally, I would respectfully agree with Member Sosso (paragraph [58]) that the Tribunal’s inquiry is not directed at ascertaining the likely interference with activities per se, but rather, those activities which are a manifestation of claimed native title rights and interests.
Section 237(a): Interference with carrying on community or social activities
The contentions and evidence about activities
[22] It is not contended by the native title party that native title claim group communities exist within the licence area. There is reference to communities ‘in the vicinity’ of the licence area, namely Borroloola and Ryan’s Bend. There is no specific evidence of distance, but from maps provided these communities would appear to be on the order of 50 kilometres from the northern portion of the licence area. Reference is also made to the Carpentaria Highway. Again, no specific evidence of distance is given, but from the AAPA sites map the nearest (north-western) point of the licence area is in the order of 25 kilometres from the Highway near Eight-Mile Yard.
[23] Contentions by the native title party assert that there are various station tracks on the licence area, but there is no evidence of this, except, perhaps, as might be inferred from paragraph [5] of the affidavit of Harry Lansen. The contentions also refer to Glyde River, Lamont Creek (formerly Molly Cop Creek, according to Harry Lansen), Bullock Creek, Boomerang Creek, Homebound Creek, and Baker Creek. The AAPA sites map shows the Glyde River more or less dissecting the lease area on a north-south line, and it appears that the creeks listed above run into it at intervals within the licence area, with the exception of Lamont Creek, which appears not to do so, being located just outside the western boundary of the licence area.
[24] The contentions of the native title party claim that the community or social activities of the native title claim group include:
(1) Foraging. The Borroloola Land Claim Report, 3 March 1978 (paragraph 98) and the Carpentaria Downs (Balbirini) Land Claims Report, 27 January 1999 (paragraph 4.9) are cited in support. The material submitted with the contentions included an extract from the Carpentaria Downs Report (paragraphs 4.9 to 4.11), but no extract from the Borroloola Report. The Carpentaria report at paragraph 4.9 finds that a group of people broader than those who have primary spiritual responsibility for the land having the right to forage, and also finds that the rights were then being exercised. I am unable, on the extract before me, to reach any conclusion about the traditional rights of the members of the native title claim group to forage over the licence area. I can only adopt the comments made by other Tribunal Members in recent objection inquiry determinations in Northern Territory matters, to the effect that limited extracts taken from Land Claim Reports, without assistance as to necessary linkages concerning people and places, are of little assistance. I am not prepared to assume that forage rights exist within the licence area, and are exercised by members of the native title claim group. In any event, the extent within the licence area in not known.
(2) Hunting, fishing and gathering of bush tucker. In support, contentions refer to the affidavit of Harry Lansen at paragraph [5].
(3) Quiet enjoyment and camping. Contentions again refer to Harry Lansen’s affidavit at paragraph [5].
(4) Looking after country. Contentions claim that the community of native title holders actively looks after country by visiting and maintaining sites, and that this activity is conducted by individuals with specific responsibility for the area. No evidence is cited for this contention, beyond that expressed or implied in the affidavits of Harry Lansen and Bruce Joy.
[25] The contentions of the native title party further claim that the above community and social activities ‘occur over some or all of the licence area, and in its vicinity.’ There is no evidence cited in support of the generality of this inherently contradictory statement, and again one is confined to the affidavits of Harry Lansen and Bruce Joy.
[26] The affidavit of Harry Lansen states:
I, Harry Lansen of Bauhinia Downs, via Borroloola in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1.I am a member of the native title claim group in the McArthur River native title determination application (D6031/00). I am a Gurdanji man. I am Nimirringgi for that country, in the ELA, with Billy Coolibah. Bruce Joy is Junggayi. It is part of the country, Mumbaliya.
2.The area of the application includes the area of ELA 9768. I have seen a map of the area of the ELA 9768. Now produced and shown to me marked “HL-9768” is a map of the ELA and the surrounding area.
3.Ngumanbaja is Catfish Hole. It is part of country Mumbaliya. Olden times, they used to play that ceremony there. We say “They got to listen to us fellas, and what we got to say about it”. They’ll have to pay compensation. Bruce Joy is the right person to talk for that place, because he is Junggayi. If they are going to work there, they have to come and see us, Bruce Joy, Billy Coolibah and me. If it’s too late, and they won’t pay, we’ll have to put them in the court. If they do the right thing, they’ll talk to us first. We got to be alongside them.
4.Bargarlala is a big swamp on top of the hill, south of Amelia Springs. It’s on the Glyde River, downstream of Catfish Hole. It’s a snake dreaming place. Old Wirriwuma and his father used to sing the song for that place. They used to pick it up from Catfish Hole not far from Molly Cop Creek. Lamont Creek is the new name for Molly Cop Creek.
5.People go fishing at Catfish Hole. We go a lot of times. Last time I went while we went to a meeting for that Merlin Mine, that diamond mine. We went up the road from Eight Mile Yard. It goes right past Catfish Hole and Molly Cop, and right along side the hill past Catfish Hole. We stopped at Fish River and at Eight Mile Waterhole. We went fishing there, caught bream and barramundi. It’s a good place for fishing. We used to go up the Glyde River, camping up from the old station. Not much now.
6.All around the McArthur mine we used to have a good hunting and fishing place. Not now. It’s locked.
[27] The affidavit of Bruce Joy states:
I, Bruce Joy of Old Tawallah, via Borroloola in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1. I am a member of the native title claim group in the McArthur River native title determination application (D6031/00). I am a Gurdanji man.
2. The area of the application includes the area of the ELA 9768. I have seen a map of the area of the ELA 9768. Now produced and shown to me marked “BJ-9768” is a map of the ELA and the surrounding area.
3. I am Junggayi for the country, in the ELA. Billy Coolibah and Harry Lansen are Nimirringgi. I am staying at Old Tawallah, by Cow Lagoon now.
4. They have to come and talk to us, if there are sacred sites on the pastoral lease. They got to come and talk to us about mining.
5. There are some burials at Catfish Hole. Billy Coolibah’s grandfather is buried up there. One was buried at Damangarni. The mining company can’t go digging trenches where people are buried. They’ll have to come and talk to us. If they damage places, they’ll have to pay for it.
6. If they damage a place, they’ll have to pay. That’s because in our law, when someone does something wrong, they pay. If you drill, it’s like you damage something. They will have to pay compensation. They got to come and talk to us. If it’s too late, and they won’t pay, we’ll have to put them in the court. If the do the right thing, they’ll talk to us first. We got to be along side them.
[28] The evidence of activities in the affidavit of Harry Lansen, and my comments, are as follows:
(1) Ceremony used to be played at Catfish Hole (Ngumanbaja) in ‘olden times’ (paragraph 3). It seems that this activity no longer happens.
(2) Fishing at Catfish Hole. ‘We go a lot of times’. Last time was when Mr Lansen went to a meeting for Merlin Mine. He went up the road from Eight Mile Yard (paragraph 5). There is no indication of who ‘we’ are. The location of Merlin Mine is not stated, but according to the oral evidence of Mark Frederick Foy on 4 December 2001 in objection inquiry DO01/11 (transcript page 13), Merlin is a small diamond mine due south of Borroloola. This would place it somewhere to the east of the licence area.
(3) ‘We stopped at Fish River and at Eight Mile Waterhole. We went fishing there, caught bream and barramundi. It’s a good place for fishing.’ (paragraph 5). It seems that this was on the trip to the Merlin meeting. Fish River is not identified, but Eight Mile Waterhole is shown on the AAPA sites map as close to the Highway, about 25 kilometres from the licence area.
(4) ‘We used to go up the Glyde River, camping up from the old station. Not much now.’ (paragraph 5). There is no assistance here as to past frequency or current activity.
(5) McArthur mine. ‘We used to have a good hunting and fishing place. Not now. Its locked.’ (paragraph 6). The location of this mine is not identified. If it is the major underground lead zinc mine at McArthur River, it is literally under the river, according to the oral evidence of Mr Foy referred to above (transcript, page 13). The nearest point of the McArthur River is about 25 kilometres north-west of the licence area. According to the tenement information provided by the government party, there are no existing tenements on the licence area.
[29] The evidence of activities in the affidavit of Bruce Joy refers to past burials at Catfish Hole and Damangarni (paragraph 5). In the absence of further details, the most that one can infer is that there may possibly be some current activity associated with the sites. The location of Damangarni is not in evidence.
[30] Catfish Hole is marked on the AAPA map as a geographical location, and appears to be within the licence area, between 2 and 3 kilometres from the north-eastern corner, but according to the schedule of information provided with the map, it is not a site recorded in the register of sacred sites.
[31] Harry Lansen (paragraph 3) states that ‘Ngumanbaja is Catfish Hole.’ However, the AAPA map shows recorded site 6164-34 outside the licence area, just to the north of the northern boundary, and the site details describe this site as ‘Ngumanbaja’, being a ‘Rockhole on Glyde River north of Catfish Waterhole’. It is designated as status 10, which, according to the explanatory key, means that the symbol on the map is a recorded site centroid, and is of a class of sites that have been made known to the authority from a variety of sources, and in many cases the Authority has not been able to assess the accuracy of its information regarding recorded sites.
[32] It is probably safe to assume that Catfish Hole referred to by Harry Lansen and Catfish Hole marked on the AAPA map are the one and same place, and that the Catfish Waterhole named in the AAPA information is the same place as Catfish Hole. What is far from certain is whether Ngumanbaja (or site 6164-34) is the same place as Catfish Hole, as stated by Harry Lansen, or whether it is north of Catfish (Water)hole, as described in the AAPA information, and whether it is outside the licence area’s northern boundary, or inside it, or straddles it.
[33] For present purposes I am prepared to accept that Catfish Hole is within the licence area, near the north-eastern corner, and that if Ngumanbaja is indeed at a different location it is very close, one way or the other, to the northern boundary.
[34] In my view, the evidence as to the nature and extent of relevant community and social activities over a licence area of approximately 145 square kilometres is extremely scant. The communities mentioned are well outside the licence area. There is a lack of particularity and substance in the material contained in the affidavits of Mr Lansen and Mr Joy, in terms of who currently engages in activities other than Mr Lansen himself, and where activities take place with any sort of frequency other than some fishing at Catfish Hole, which is located almost in the north-east corner of the licence area.
The contentions and evidence about likely direct interference
[35] There is the other side of the coin – the material concerning the likely impact of exploration upon such traditional community or social activities as there may be in or near the licence area.
[36] First, there are the contentions and evidence of the native title party. These comprise:
(1) a memorandum, 8 October 2001 ‘Rights conferred under an exploration licence’ compiled by Angus Frith, counsel for the native title party.
(2) a document ‘Exploration Activities’ compiled by Mark Frederick Foy and submitted as Annexure 1 to his affidavit, 6 November 2001.
[37] Mr Frith’s memorandum is in the nature of counsel’s advice listing what an exploration licence will authorise the grantee to do, the conditions which may be imposed, and associated rights available to a licence holder.
[38] Mr Foy is a widely experienced geologist and exploration manager. He has been employed by the Northern Land Council since 1995, and is the Senior Project Officer - Mining. His document ‘Exploration Activities’ describes the nature of a range of technical activities that a grantee party may choose to undertake under an exploration licence granted in the Northern Territory. It comments upon exploration activities ranging from desk research through remote sensing, geological mapping and sampling, geochemical surveying, geophysical surveying, costeaning (trenching), drilling and (in the feasibility stage) ore reserve drilling and metallurgical testing.
[39] Mr Foy’s document was closely tested during oral evidence given by him on 4 December 2001, in objection inquiry DO01/11. The transcript of that evidence is included in the ‘generic’ material submitted as evidence in the present inquiry. It was commented upon by Deputy President The Hon E M Franklyn QC in Gabriel Hazelbane/Northern Territory/Rodney Johnston DO01/40 and DO01/41 (unreported), 27 March 2002, (Gabriel Hazelbane) at paragraph [12].
[40] Points that emerge from Mr Foy’s oral evidence include:
(1) That in some respects his document is dated, due to changes in practice and new technology.
(2) A number of the exploration activities listed by him are not in common use in diamond exploration in the Northern Territory.
(3) Of the three levels of exploration activity, progressing from primary, through secondary, to tertiary, the only substantial disturbance likely at the first two levels would be in preparation for access to the area, in which case approval would be required.
(4) Tertiary level activity involving extensive intrusive work would require approval.
(5) Feasibility study activities are properly the subject of an Exploration Retention Lease.
(6) The second schedule conditions attached to an exploration licence are extremely good. A criticism made by Mr Foy is that there is very little inspection of sites and works.
[41] Secondly, there is the evidence of the government party. It tendered the exploration program submitted by the grantee party as part of its application for the grant of the exploration licence. As already noted, the proposed tenement covers 44 blocks, totalling approximately 145 square kilometres. This area includes ground which is interpreted as prospective for diamond exploration.
[42] The proposed work program for the first year is for systematic exploration by integrating Landsat TM Imagery, ground mapping, and reconnaissance stream sampling. The proposed program for subsequent years will involve follow-up sampling of any anomalous results. It will be tested by Rotary Air Blast and Reverse Circulation Drilling. Further work will depend upon results attained. Details provided initially on a confidential basis but subsequently released show estimated minimum expenditure of $15 000 in Year 1, $20 000 in Year 2, $25 000 in Year 3, $32 000 in Year 4, $40 000 in Year 5 and $50 000 in Year 6. Variations in these amounts may occur depending on results obtained in preceding years.
[43] Further, the government party has tendered its ‘Standard Exhibit’. Amongst other material it includes:
Section 24 Mining Act - conditions of licence (as amended).
Section 24A Mining Act - second schedule conditions.
Section 166 Mining Act - general conditions (as amended).
Section 35 Mining Management Act - authorisation of activities - mining management plan (‘mining activities’ definition includes exploration).
Section 37 Mining Management Act - conditions of authorisation.
Contentions 16 January 2002 on Mining Management Act, Regulations, Mining Amendment Act 2001 (effective 1 January 2002).
Letter of grant (template form) - first schedule conditions.
[44] The legislative provisions and conditions applicable to an exploration licence in the Northern Territory have recently been considered in some detail by Deputy President Franklyn in Gabriel Hazelbane (above). At paragraph [13] he notes:
… Section 24A of the Mining Act makes provision for the imposition of conditions to minimise the impact of the grant of an Exploration Licence on registered native title interests. Conditions imposed under section 24A are known as Second Schedule Conditions and are endorsed on the licence …
At paragraph [14] he adds:
I do not set out in detail the Second Schedule of conditions currently in force. However it is significant that they are to a large extent directed to minimisation of impact on native title rights and interests in the licence area, of interference directly with the carrying on of community or social activities of the native title holders or claimants and of interference with sites or areas of particular significance in accordance with the traditions of the Native title holders or claimants; to protection of the environment and ‘sacred sites’, restriction on the use of fire, the construction of vehicle tracks, clearing of vegetation and provision for minimalisation of disturbance to the land and the restoration thereof. There is also provision for complaints by the Native Title holder or claimant, how such complaints be dealt with and provision for orders for rectification by the licencee or at his cost, cancellation of licence and or other action as the Minister deems appropriate.
[45] Thirdly, there is the evidence of the grantee party. It tendered an affidavit by Jeffrey Alexander Wilkie (26 November 2001). He is employed by Rio Tinto Exploration Pty Ltd as Manager, Aboriginal Relations – Northern District. The grantee party, Ashton Mining Limited, is a subsidiary of Rio Tinto Limited. Each company has extensive experience in exploration and mining.
[46] Mr Wilkie states that if the exploration licence is granted, Rio Tinto (and inferentially, its subsidiary company Ashton Mining Limited) will comply in all respects with its obligations under relevant Northern Territory and Commonwealth legislation, and the conditions of the exploration licence itself.
[47] In addition, Rio Tinto will comply in all respects with Rio Tinto Exploration Pty Ltd’s Community Relations Policy and Environmental Policy. These policies are annexed to Mr Wilkie’s affidavit (JAW1 and JAW2 respectively). The effect of the policies is summarized in paragraph [7] of Mr Wilkie’s affidavit in the following terms:
(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 of 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.
Conclusion as to section 237(a)
[48] As noted by Member Sosso in Moses Silver, section 237, as amended, requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) - (c) of the section [paragraph 21]; the standard of proof is whether there is a real, or not remote chance or possibility of the matters under consideration occurring [22]; a common sense approach to the evidence is required [23]; a presumption of regularity applies to the conduct of a grantee party in the absence of evidence to the contrary [24]; and since the amendments, evidence of the intention of the grantee party is relevant [25] to [32]; and in the case of section 237(a), the interference must be substantial in its impact upon community or social activities and the act must be a proximate cause of the apprehended interference [49].
[49] Further, as stated by Member Sosso at paragraph [40]
… The issue before the Tribunal is to determine the likelihood of interference … based on whether there is material before it of, on the one hand, community or social activities … and, on the other, the extent of the legal rights of the grantee party taken together with other material on how those rights may be exercised. Of itself, the fact that native title rights and interests are asserted, does not inevitably lead to a conclusion that an objection will be upheld. It will depend in any inquiry on the actual evidence before the Tribunal and not on legal contentions alone.
[50] As to section 237(a), evidence as to the existence of relevant community and social activities by the native title claimant group on or near the licence area is very limited, both as to its nature and geographical extent. This is combined with the vague generality of the evidence as to the likely impact of exploration upon any such activities. Against that there is the specific evidence about the requirements of the regulatory regime, together with the intentions of the grantee party and the presumption of regularity about its conduct. All these factors point in one direction only. On the evidence, there is no real chance or risk that the community or social activities of the native title claim group will be directly interfered with except in a minor, localised and non-substantial manner (cf Moses Silver at [85]), if at all.
[51] In my opinion, the evidence does not establish that the proposed act is 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, within the meaning of section 237(a).
Section 237(b) - Interference with areas or sites of particular significance
[52] The native title party contends that the proposed act is likely to interfere with areas or sites of particular significance in accordance with the traditions of the native title claim group.
The significance of areas or sites
[53] From the affidavits of Harry Lansen and Bruce Joy it appears that each of the areas or sites referred to below is of some significance to members of the native title claim group, in accordance with their traditions. Whether an area or site is of ‘particular’ significance, as distinct from ordinary significance, is the issue.
[54] For the purposes of section 237(b) an area or site must be ‘of special or more than ordinary significance to native title holders. It is not enough that the site simply be of significance to native title holders’ - Cheinmora v Striker Resources NL (1996) 142 ALR 21 (at 34) per Carr J.
[55] The native title party contends that there are three areas or sites that are of special significance. The basis of the contention, and an assessment of significance for each area or site follows.
Catfish Hole
[56] The native title party relies upon the evidence of Bruce Joy, who states that ‘There are some burials at Catfish Hole. Billy Coolibah’s grandfather is buried up there. One was buried at Damangarni.’ (affidavit, paragraph [5]).
[57] It is likely that the burial place of his grandfather is of special significance to Billy Coolibah. Does this translate to special significance to the native title claim group as a whole? It is possible that Billy Coolibah has a number of close relatives within the group, to whom the burial place is of special significance because of their relatively close relationship, but I do not make that assumption.
[58] It is noted however, that Billy Coolibah is one of the named applicants in the McArthur River application, and thus likely to be of some standing in the community. Given the traditional respect accorded by a native claim group to the rights and interests of its members, in my view it is very likely that the claim group as a whole, or at least a significant part of it, would treat the burial place of Billy Coolibah’s grandfather with special respect. As Bruce Joy puts it, ‘The mining company can’t go digging trenches where people are buried.’ (paragraph [5]).
[59] I find on the evidence and the inferences that may properly be drawn from it, that the burial site at Catfish Hole has special significance to a particular member of the group, that this is likely to give the burial site a degree of importance to the group as a whole, and that in the circumstances this degree of importance gives to the site a particular significance to the native title group, within the meaning of section 237(b).
Ngumanbaja
[60] The native title party relies upon the evidence of Harry Lansen, who states that ‘Ngumanbaja is Catfish Hole’, and that in ‘Olden times, they used to play that ceremony here’. He says (in effect) that the mining company has to listen to the native title holders, and what they have to say about it. (affidavit, paragraph [3]).
[61] The location of Catfish Hole and Ngumanbaja has already been discussed at paragraphs [30] to [33] above.
[62] If Ngumanbaja is at the same place as Catfish Hole, then there may possibly be an area of ceremonial significance different from or more extensive than the burial site, but this is not made clear.
[63] The general nature, and thus the significance of the ceremony is not discussed by Mr Lansen in his affidavit.
[64] Ngumanbaja is a site recorded on the AAPA map - see paragraph [31] above. It is described as a ‘Rockhole on Glyde River north of Catfish Waterhole’. It is designated as status 10. The affidavit of Hugh Joseph Bland (30 November 2001) included in the ‘generic’ material explains at paragraph [6] that status 10 refers to a ‘recorded’ sacred site (as that term is defined in the Northern Territory Aboriginal Sacred Sites Act 1989), but it will not have been evaluated or placed on the Register of Sacred Sites. At level 10 however, the site is deemed to be significant according to Aboriginal tradition.
[65] If subsequent research indicates that the site is not a ‘sacred site’ then the status will be downgraded to something less than 10. Such sites are not protected by AAPA legislation, but, usually, by heritage legislation. If research confirms the location and establishes the significance of the site, the status will rise to 12. If later steps in the registration process result in the site being documented and determined by AAPA to be of significance to Aboriginal custodians, it is entered in the Register of Sacred Sites, and elevated to a status of 40.
[66] 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].
[67] Conversely, if a site is not recorded or registered with the AAPA, that would by no means be conclusive as to either the existence of the site or the degree of Aboriginal traditional significance. Again, reference is made to Gabriel Hazelbane at paragraph [11]. Also refer to the affidavit of Jeffrey John Wilson Stead (8 October 2001) and his oral evidence (3 December 2001) in objection inquiry DO01/11, the transcript of which is included in the ‘generic’ material tendered in this inquiry. Mr Stead’s evidence is to the effect that the AAPA Register is unlikely to be accurate or complete for all of the areas or sites of significance that might be relevant.
[68] In any event, a sacred site is protected from entry upon the site, work upon it, or desecration, by the prohibitions contained in sections 33 to 35 of the Sacred Sites Act (subject to the defence in section 36 of no reasonable grounds for suspecting that the site was a sacred site), whether or not the sacred site is recorded or registered by the AAPA. The definition of sacred site is taken from section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which provides that ‘sacred site’ means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition. (Aboriginal tradition is itself defined in section 3).
[69] The evidence of Mr Lansen is expressed in terms of the past, and seemingly not the recent past. It does not suggest that the ceremony was of special significance then, or that it is likely to be of particular significance now. Nor does the recording of a site by AAPA (in terms of there being a rockhole) add relevantly to the weight of Mr Lansen’s evidence with respect to particular significance. In my opinion the evidence does not establish that Ngumanbaja is an area or site of particular significance within the meaning of section 237(b) by reason only of an unspecified ceremony that used to be performed there.
Barlgarlala
[70] The native title party relies upon the evidence of Harry Lansen who states that Barlgarlala is a snake dreaming place. ‘Old Wirriwuma and his father used to sing the song for that place. They used to pick it up from Catfish Hole not far from Molly Cop Creek.’ (paragraph [4]).
[71] The area or site is not recorded or registered with the AAPA. However, as discussed in paragraphs [66] and [67] above, that is not conclusive of existence or status.
[72] The evidence suggests that the area (or areas) or site described has been of significance in the past, given both the status as a dreaming place and the singing for that place. It is less clear that the place or site is of similar significance today, at least so far as the singing is concerned.
[73] The evidence about Barlgarlala is more specific that that for Ngumanbaja, with the reference to a snake dreaming place, and the singing of the song for that place by old Wirriwuma and his father. It is however, still a reference to singing in the past rather than the present.
[74] I am inclined to the view that the area or site could possibly be of particular significance, but on the evidence it is difficult to have greater assurance that that. Lest I be wrong in this view, I propose to consider later whether in any event the proposed act is likely to interfere with the area or site.
Other sites
[75] The AAPA site map identifies a number of recorded sites within the general region of the licence area. The nearest range from about 4 to 9 kilometres south-east from the south-eastern corner of the licence area, and there is a site about 5 kilometres north of the north-western corner. No assertion is made in the contentions of the native title party that any of these is an area or site of particular significance, and I find no evidence to support any such conclusion.
Interference with areas or sites
[76] The location of Catfish Hole and Ngumanbaja has been discussed previously at paragraphs [30] to [33] above. It seems clear that Catfish Hole is within the licence area, between 2 and 3 kilometres from the north-eastern corner.
[77] It is not clear that Ngumanbaja is at precisely the same location, or very close by, or is instead outside the licence area. If the AAPA site map and information is accepted at face value, Ngumanbaja is not within the licence area, but is very close to the northern boundary. Given the reservation as to accuracy stated in the AAPA information, and the evidence by Harry Lansen that Ngumanbaja is the same place as Catfish Hole, on the present evidence there is the possibility that Ngumanbaja is within the licence area.
[78] The precise location of Barlgarlala is less clear. The native title party does not contend that it is on the licence area. That is not fatal to consideration: see Moses Silver per Member Sosso at paragraphs [34] and [35]. Harry Lansen states that Barlgarlala ‘ … is a big swamp on top of a hill, south of Amelia Springs. Its on the Glyde River, downstream of Catfish Hole.’ Referring to a song for that place, he states ‘They used to pick it up from Catfish Hole not far from Molly Cop Creek. Lamont creek is the new name for Molly Cop Creek.’ (paragraph [4]). It appears that the nearest point of Lamont Creek to Catfish Hole is about 5 kilometres to the west, just outside the western boundary of the licence area. Amelia Springs is about 10 kilometres north of the licence area, near where Amelia Creek, Lamond Creek and Glyde River appear to come together. Mr Lansen’s evidence is that Barlgarlala is south of Amelia Springs. The distance is not specified.
[79] The most that can be said, on the evidence, is that Barlgarlala is somewhere on the Glyde River, less than about 10 kilometres from the northern boundary of the licence area.
[80] The government party tendered material showing that there are no current mining tenements covering any part of the licence area, but that prior mining tenements included various Authorities to Prospect between 1964 and 1972, Authorisations Northern between 1997 and 1999 (surrendered in 1998), and Exploration Licences between 1972 and 1990 (the last of which was surrendered in 1987). No evidence was led by the native title party that any activities under these grants had led to interference with areas or sites of particular significance.
[81] The licence area covers part of McArthur River perpetual pastoral lease 1051, and Spring Creek Crown lease in perpetuity 1289. No evidence was led by the native title party that pastoral activities, associated activities (including travel over station tracks) or any other activities have interfered with areas or sites of particular significance.
[82] 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 do not accept that this is an appropriate test. Section 237(b) requires a determination of whether the act is ‘likely’ to interfere with areas or sites of particular significance.
[83] 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.
[84] 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.
[85] 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 beside 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).
[86] 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.
[87] To that list one might add the intentions of the grantee party, as evidenced in this inquiry by the affidavit of Mr Wilkie and the annexures to it, referred to in paragraphs [45] to [47] above.
[88] The above factors are relevant not only to the evaluation of likely interference with areas or sites under section 237(b), but also the evaluation of likely major disturbance of land or waters under section 237(c).
[89] The legislative schemes and regulatory practices applicable to the protection of sacred sites and the conduct of activities under an exploration licence have been examined in considerable detail in recent Tribunal Reasons for Determination in expedited procedure inquiries in the Northern Territory. For example, refer to the Determinations by Member Sosso in Moses Silver at paragraphs [94] to [105] and Deputy President Franklin in Gabriel Hazelbane at paragraphs [11] to [14].
[90] I do not propose to repeat at length here the statutory provisions, licence conditions and general principles examined in those Determinations. It is appropriate however, to note that these include (amongst other things) the provisions and conditions listed below.
[91] As to protection of native title rights in general, and areas or sites of particular significance, the following provisions are applicable:
(1)The provisions of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).
(2)Second Schedule Conditions, under section 24A of the Mining Act 1980 (NT), particularly conditions 1, 3, 4, 18, 20, 21 and 22. These provide for minimisation of impact upon native title rights and interests generally in the licence area, and in particular the amelioration of interference with community or social activities or with areas or sites of particular significance; instructions to employees and contractors to protect sites; consultation with AAPA; meeting with registered native title claimants or holders to explain proposed exploration activities, and the obligation to have regard to matters of concern, including access to particular areas; a complaint procedure available to any native title claimant or holder, and powers to the Minister to resolve the matter; notification of any subsequent application for productive mining (further future act process); and employment opportunities.
(3)Section 24 Conditions of Licence, including condition (k), which provides that the licensee will not interfere with any historic site or object, or any Aboriginal sacred site or object, declared as such under a law of the Territory, unless authorized by law.
[92] As to regulating the conduct of exploration activities, the following provisions are applicable:
(1)Second Schedule Conditions, under section 24A of the Mining Act. These include provisions to minimise disturbance to a wide range of listed environmental concerns; prohibition upon construction of new vehicle tracks unless unavoidable, removal of structures, markings etc from the area at completion of exploration; rehabilitation requirements.
(2)Section 166 Conditions. The former section 166 (1)(a) imposed a condition that the licensee will carry out his exploration programmes and other activities on the licence area in such a way as to cause as little disturbance as practicable to the environment. Since 1 January 2002 this provision has been replaced by section 166(1A). It provides that all exploration licences are granted subject to the condition that the licensee must also hold the relevant Authorisation before carrying out on the licence area any exploration, operations or works involving substantial disturbance. This requirement is put into effect by the Mining Management Act 2001 (NT). For this purpose ‘mining activity’ is defined in section 4 to include ‘exploration for minerals’ (but not water or petroleum), and ‘mining site’ has a corresponding meaning. Section 35 prohibits mining activities prior to the grant of an Authorisation. Section 36 requires the Minister before granting an Authorisation to be satisfied that the proposed management system will ‘promote the protection … of the environment on the site … and that the management of the mineral resources on the site will be in accordance with good mining practice …’. Section 37 imposes a condition that the operator must comply with the current mining management plan.
[93] It is most significant that condition 18(a) of the Second Schedule Conditions requires the licensee to meet with registered native title claimants or holders, prior to the commencement of exploration activities (other than reconnaissance), to explain the proposed activities, and that condition 20 gives the claimants access to the Minister to complain about the activities, with the possible consequences that are laid out. Given this procedure, combined with the presumption of regularity and the stated approach of the grantee party in this and similar matters - as set out in paragraphs [45] to [47] above - there is every reason to believe that any concerns of the native title party will be taken into account by the grantee party.
[94] Further, as a result of the objection process that has led to this inquiry, the grantee party is well and truly put on notice as to the particular areas or sites about which the native title party has expressed concern, so far as their location may be identified at this stage.
[95] The evidence tendered by the native title party through Mr Frith and Mr Foy is expressed in generalities. It does not address the specifics of whether there is ‘likely’ to be exploration activity on or near or affecting the identified areas or sites of concern, in the sense of a real chance or risk that this will be so, and what the interference would be if there were any such activity.
[96] The location of Catfish Hole and Ngumanbaja close to the north-eastern corner of the licence area, and Barlgarlala somewhere up to 10 kilometres north of the licence area, detract from whatever weight the contentions of the native title party might otherwise have in relation to a licence area of about 145 square kilometres.
Conclusion as to section 237(b)
[97] Whilst I find that the burial site at Catfish Hole is of particular significance, and on the evidence presented the site at Ngumanbaja is not, and the site at Barlgarlala may possibly be but probably not, in any event the evidence does not, in my opinion, establish that the proposed act is likely to interfere with those areas or sites, in the sense of a real chance or risk. In the absence of specific evidence to the contrary in this matter, the statutory provisions, conditions and regulatory processes coupled with the intentions of the grantee party, combine to establish that the likelihood of interference is not real, but remote, if anything at all. See also paragraph [104] below as to the presumption of regularity. Accordingly, in my opinion, the evidence does not establish that the proposed act is likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of the native title in relation to the land or waters concerned, within the meaning of section 237(a).
Section 237(c) - major disturbance to land or waters
[98] The native title party contends that the proposed act is likely to involve major disturbance to any land or waters concerned, and will create rights whose exercise is likely to involve major disturbance to any land or waters concerned. The section puts the two branches of paragraph (c) in the alternative, but the contention asserts that each is applicable in the present matter.
[99] Reference has already been made (paragraphs [36] to [40] above) to the material compiled by Mr Frith and Mr Foy as to the range and nature of potential exploration activities. It is contended by the native title party that exploration, by its nature, is likely to involve major disturbance to land or waters, and that this is particularly the case in the later years of exploration. ‘Several of those activities have the potential 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.’ (Statement of contentions of objectors, 28 November 2001, at paragraph [77]). It is contended that the major disturbance to country includes holes from drilling or trenching, tracks built across country, damage to beds and banks of water courses or water sources, reduction of available water, and the creation of noise, dust, mud, loose rock, and erosion (paragraph [79]). Further examples are given of potential activities, such as bores, tunnels, taking or diverting water, and extraction or removal of ore (within the limits of an exploration licence).
[100] It is further contended that this disturbance would be cumulative with that caused by the McArthur River mine. Mr Lansen’s affidavit, paragraph [6], is cited in support of this proposition. However, all he says is that ‘All around the McArthur mine we used to have a good hunting and fishing place. Not now. Its locked.’ He says nothing about the nature of ‘disturbance’ other than the reference to lack of access. It appears that the mine is about 25 kilometres from the nearest point of the licence area.
[101] 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 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.
[102] The views of the relevant Aboriginal people in this matter, as expressed in the evidence by Mr Lansen and Mr Joy, is succinct. The principal concerns of Mr Joy are about any digging of trenches at the burial site at Catfish Hole (paragraph [5]), and drilling generally, because ‘If you drill, its like you damage something. They’ll have to pay compensation.’ (paragraph [6]). Mr Lansen’s concerns are about consultation and the need for compensation. ‘We say, “they’ve got to listen to us fellas, and what we got to say about it”. They’ll have to pay compensation … If they do the right thing, they’ll talk to us first. We got to be alongside them.’ (paragraph [3]).
[103] Reference has already been made to legislative schemes and regulatory practices applicable to the conduct of activities under an exploration licence - see paragraphs [89] to [94] above. To this may be added the affidavit of Timothy Milne Gosling (5 December 2001) and the extensive annexures to it, originally tendered by the government party in objection inquiry DO01/13, and now included in the ‘generic’material. Mr Gosling’s affidavit was sworn before the legislative changes that operate as from 1 January 2002. It deposes to the already stringent 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 was put in place, by virtue of the Authorisation process set out in the Mining Management Act 2001 (NT), including the need for approval of a mining management program. 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.
[104] As noted by Deputy President Franklyn in Gabriel Hazelbane:
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. (paragraph [16]).
I respectfully adopt this approach. There is no evidence sufficient, in my view, to rebut the presumption of regularity with respect to the grant and future supervision of the proposed exploration licence.
[105] Given the broad assertions in the native title party contentions as to the likely effect of exploration activities, including the possibility of the grantee party changing its present intentions, it is instructive to note two of the points made by Mr Gosling.
[106] First there is the statement at paragraph [30] of his affidavit:
Rarely do exploration licences lead to economic deposits. As a rule of thumb 1 in 1000 prospects might reach this stage. Activities such as Ore Reserve Drilling and Metallurgical Testing are usually only carried out when exploration has identified a mineral deposit of possible economic size, mostly after many years of less invasive exploration activity.
On this point, Mr Foy stated in his oral evidence
I have had cases where companies have abandoned the exploration they wanted to carry out in the primary phase … it’s quite common that companies may abandon after the secondary phase. In fact, this is becoming … more of how the larger companies are operating these days where they’re taking a very broad brush approach and going into large areas and going over those large areas, and then … if nothing comes up to interest them, they’re out of them after two, maybe three years. (generic material, transcript page [9]).
[107] Secondly, there is the statement at paragraph [28] of Mr Gosling’s affidavit:
The techniques of bulk sampling for diamond exploration are described on page 5 of the document titled “Exploration Activities” which is attached to the Affidavit of Mark Frederick Foy under the title “Heavy Media Separation.” Although the size of the sample may vary, the heavy mineral material retained for examination is usually a small percentage of the sample. The remainder of the material is, where practical, returned to the excavated pit. A typical sample retained would be less than one (1) kilogram. The removal of the sample has minimal effect on the stream.
[108] Although it is evident that Mr Joy has concern about drilling generally, there is nothing to demonstrate that this activity, without reference to any particular location within the licence area, would amount to a major disturbance in the sense of ‘a significant impact on Aboriginals who live in or use the affected area’ (Wilcox J, Dann v Western Australia, at 395). What is evident, is that digging trenches or drilling at or in the immediate area of the burial site at Catfish Hole would be likely to be a major disturbance, in the sense described by Wilcox J. There is also concern expressed by Harry Lansen as to work at Ngumanbaja, and it is implicit that the concern is shared by Bruce Joy and Billy Coolibah.
[109] If Ngumanbaja is Catfish Hole, as Mr Lansen asserts, then of course the concern is heightened. If it is outside the licence area, as indicated by the AAPA map, then different considerations apply. As previously noted, Barlgarlala is somewhere between the northern boundary of the licence area and up to 10 kilometres away. There is no evidence to suggest major disturbance there.
[110] The question is whether it is ‘likely’ that major disturbance would take place at Catfish Hole or Ngumanbaja. Having regard to the statutory provisions, conditions and regulatory processes, (particularly the consultation and complaint provisions of conditions 18 and 20 of the Second Schedule Conditions, and the requirement of section 35 of the Mining Management Act that exploration involving substantial disturbance not be carried out unless an Authorisation is first obtained); having regard to the fact that the concerns of the native title party as to the potential impact of work at Catfish Hole and Ngumanbaja have been brought to the attention of all parties through this objection procedure; having regard to the intentions of the grantee party; and having regard to the presumptions of regularity (all of which have been discussed above), in my opinion it is not ‘likely’, indeed it is remote, that major disturbance will take place at those locations.
[111] As to the concerns about exploration generally, over the licence area generally, that have been expressed in the contentions of the native title party, there is simply no evidence to support the likelihood of major disturbance in the sense explained in Dann v Western Australia, under either limb of section 237(c).
Conclusion as to section 237(c)
[112] In my opinion, on the evidence, the proposed 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.
Conclusions as to section 237 generally
[113] The Tribunal is required by the Native Title Act to carry out its functions without being bound by technicalities, legal forms or the rules of evidence (section 109(3)). And it may take into account the cultural and customary concerns of Aboriginal people and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved (section 109(2)).
[114] Against that background, a comment may be made about the role of contentions and evidence. Written contentions submitted by a party pursuant to Directions by the Tribunal may be of considerable assistance about matters of statutory interpretation and other legal issues. They may also be of considerable assistance in relation to factual matters that are relevant and not regarded by any party as contentious.
[115] It nevertheless remains necessary to place before the Tribunal evidence that is adequate to enable the Tribunal to resolve factual issues that are in dispute. Bare assertions or counter-assertions, especially those of a very general nature, are no substitute for evidence, however informal it may be under section 109, where evidence is necessary to enable determination of factual issues that are disputed and which go to the substance of whether or not the criteria in section 237 are satisfied. At the end of the day, disputed factual issues will be determined on the evidence that is before the Tribunal.
[116] For the purposes of this objection inquiry 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, and the ‘generic’ material. I have also taken into account the findings and commentary on statutory interpretation and other legal issues set out in recent Tribunal Reasons for Determination relating to objection inquiries in the Northern Territory. The lack of express reference to any of the above material in this Determination should not be taken as an indication that it has not been taken into account where relevant to this matter.
[117] 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 the 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
[119] The determination of the Tribunal is that the grant of Exploration Licence 9768 to Ashton Mining Limited is an act which attracts the expedited procedure under the Native Title Act 1993 (Cth).
Professor Douglas Williamson QC.
Member
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