Daniel Lane, Tommy Henda, April Bright, Pavalina Henwood and Ann Majar on behalf of the Wadjigiyn, Mak Mak Maranunggu and Werat Groups/Biddlecombe Pty Ltd/Northern Territory
[2002] NNTTA 151
•29 July 2002
NATIONAL NATIVE TITLE TRIBUNAL
Daniel Lane, Tommy Henda, April Bright, Pavalina Henwood and Ann Majar on behalf of the Wadjigiyn, Mak Mak Maranunggu and Werat Groups/Biddlecombe Pty Ltd/Northern Territory, [2002] NNTTA 151 (29 July 2002)
APPLICATION NO: DO 01/122
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
Daniel Lane, Tommy Henda, April Bright, Pavalina Henwood and Ann Majar on behalf of the Wadjigiyn, Mak Mak Maranunggu and Werat Groups (native title party)
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Biddlecombe Pty Ltd (grantee party)
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Northern Territory of Australia (Government party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 29 July 2002
Hearing Dates: 26 April 2002
Government Party: Mr Nicholas Papandonakis, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Craig Mackay
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions –registered or recorded sites – previous exploration/mining activity – legal principles – no evidence of community or social activities – no areas or sites of particular significance – no evidence of prior disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation: Acts Interpretation Act 1901 (Cth) s 36
Mining Act (NT) s 24A
Native Title Act 1993 (Cth) ss 29, 32, 44H, 151, 237
Cases:Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002
Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002
Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002
May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DOO1/98, unreported, Member Sosso, 25 June 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002
Smith v Western Australia (2001) 108 FCR 442
Western Australia v Smith (2000) 163 FLR 32
Wik Peoples v Queensland (1996) 187 CLR 1
REASONS FOR DETERMINATION
Background
[1] On 11 July 2001 the Northern Territory (“the Government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 23110 (“the proposed tenement”) to Biddlecombe Pty Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 61 blocks (approximately 204 square kilometres) and is comprised of the following:
Perpetual Pastoral Lease 1006, which is known as “Litchfield”; and
Perpetual Pastoral Lease 1086, which is known as “Labelle Downs”.
[3] On 11 October 2001 a native title determination application was filed with the Federal Court (D6060/01). The name given to this application is “Lower Reynolds Channel Point”, and the applicants are Mr Daniel Lane, Mr Tommy Henda, Ms April Bright, Ms Pavalina Henwood and Ms Ann Majar on behalf of the Wadjigiyn, Mak Mak Maranunggu & Werat Groups. The application was entered on the Register of Native Title Claims on 9 November 2001. The Lower Reynolds Channel Point application wholly covers the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 12 November 2001. Technically this was more than four months after the section 29(4) notification of 11 July 2001 (section 32(3)), however 11 November 2001 was a Sunday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
The named Objectors, Daniel Lane, Tommy Henda, April Bright, Pavalina Henwood and Ann Majar, are also the abovenamed applicants.
[5] On 20 November 2001, Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry and on that date I issued Directions for the conduct of the inquiry. Amendments to those directions were issued on 8 April 2002 and following the Listings Hearing held on 26 April 2002. The various contentions made by the parties have been pursuant to those Directions.
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. The Tribunal is required, pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In this instance, having regard to the material before the Tribunal, I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.
[7] The parties have submitted to the Tribunal extensive written contentions, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 25 March 2002
Contentions in Reply (“GPCR”) dated 24 April 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 2 April 2002
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 15 April 2002
Objectors’ Response to the Reply of the Government Party (“ORRG”) dated 2 May 2002
Grantee Party Contentions
Statement of Contentions of Grantee Party (“Gr1”) dated 8 April 2002
Evidence
Affidavit of Ann Majar
[8] The native title party lodged the Affidavit of Ann Majar which was affirmed before C Bell, a Commissioner for Oaths, on 8 April 2002. The Affidavit is set out below:
“1. I am a member of the native title claim group in the Lower Reynolds River native title determination application (DC01/60). I am Werat.
2. The area of the application includes the area of ELA 23110. I have seen a map of the area of the ELA. Now produced and shown to me marked “AM 23110” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. This is an important area for us. It is our hunting area, and there are lots of Dreaming places there. The place Nowgli is called Marrinja Billabong by some people. We get turtle at that billabong, Nowgli.
4. Bob’s Knob is a very important area. There used to be big spear fights there in the old days. It was an important Men’s Ceremony site, where men from all around used to bring young boys for ceremony. Ceremony is no longer performed there, but it is still an important place.
5. There is a Dreaming Track for Freshwater Crocodile from Bob’s Knob south to the Reynolds River. The Saltwater Crocodile turned back to the coast at this point. That marks the place where the saltwater and freshwater meet. The name for this Dreaming Track in Werat language is Duruk.
6. Bob’s Knob is in dangerous poison country. This is an area for Death Adder, King Brown snake and Goanna. It’s a breeding ground where they lay eggs. The King Brown Dreaming Track is also called Duruk.
7. There is another area of poison country just north of the ELA area at the end of the line of hills called Murrenja. The hills end at a point that is also poison country, like Bob’s Knob. There are lots of White Apple and other bush foods here, but if you eat them you’ll get sick. Aboriginal people use them to curse a person. You come out in sores from head to foot; it’s like acid that eats down to your bones.
8. If I take visitors onto this country they have to be introduced to the country. I have to talk to the country in language, and wash their heads with water mixed with the sweat of countrymen. Then they can go and get turtle. Europeans have got to take one of us with them. Newcomers only have to have this done once, but it might take about three or four years for the country to get used to them. I would have to do this for you if you visited the country. I took people from Croker Island or Goulburn, and Dave Ritchie and Andrew McWilliam from AAPA, on a trip. I washed their heads and introduced them to the country.
9. These Dreaming Sites all have ‘eyes’; pools of spring water, watching the country. They can see if there are strangers on the country, and can cause them to get sick if they are not properly introduced to the country. Bob’s Knob, Murrenja, Nowgli, and the end of Mt Johns on area E3 on the Wagait Land Trust all have eyes. All these sites are connected to each other and are in touch with each other. They pass information about strangers to each other, and if none of them recognise the stranger, the stranger is in danger of getting sick.
10. My mother and father used to tell me about the places I should avoid because they are dangerous. They said “don’t go to this place; you might get sick”. They told me where I can fish and where I can’t fish. There are some really important areas, which I have not even shown to my husband Alan, because they are too secret. I have showed them to my kids. I feel that I am now one of the only people left who knows about the country, and it’s not easy to talk about it; it’s like I’m a bit secret myself.
11. When I was a little girl, about 7-8 years old, the Rainbow Snake, called Pulipuli came up the Reynolds River. From south of Bob’s Knob [at a placed marked on the map] it went north right up to the Wangi Falls towards Litchfield. The country was all burnt where it passed through and the banks of the river caved in. There was a fire burning the pandanus.
12. Back in the 1960s this whole area was a great place to go hunting and collecting lily roots and other bush food. We’d take the roots and the pod, which we’d cook on coals. Now it is too dangerous, with all the crocodiles, unless you have a dinghy and maybe a hook to pull up the water lilies. We’re still doing that, though. You’ve got to have someone standing by to watch the water.
13. My language is Werat. I know the words for turtle, tucker, goanna and goose.
14. The ELA is all black soil country. We go out there in the dry time, at weekends. We can get to Nowgli and the hills and have to walk from there. We stay at Nowgli from morning to sundown. We get turtle and geese and duck.
15. I went to Bob’s Knob in October 2001. There was still water there. We got wallaby and goanna with a gun. I can use a spear. I teach my son how to use it.
16. In December 2001, I went with my husband and the kids and taught them how to hunt. I taught them how to look around for and find Mimirri. It’s got a thin reed like a bull reed. When it dries up, we dig it up and find underground berries about the size of a five cent piece. There has not been much sugarbag around in the last couple of years.
17. We talked about places and I tell the kids and my niece’s kids stories about places and Dreaming sites, and about where they can go and where they can’t go. We sat at Bamboo Creek and told them about the ELA area.
18. In June and July 2001, I took the kids to Nellie Spur on the northern part of the Murrenja hills on the Wagait Aboriginal Land Trust area. I taught them that you can’t eat cabbage palm.”
At paragraph 2 of the Affidavit Ms Majar refers to a map showing the area of the proposed tenement, and she again refers to the map (at paragraph 11) when relating a dreaming story. However, the government party contends (GPCR at para 85) the map attached to the Affidavit is not marked in the manner deposed to. There does appear to be some ambiguity with the mapping produced by the native title party. The map that Ms Majar deposes to is said to be marked “AM 23110”. Presumably this is a reference to ELA 23110. Nonetheless, the map annexed to her Affidavit is not marked “AM 23110”. Moreover, as the government party contends, the map annexed to the Affidavit does not bear any marking of a place south of Bob’s Knob that Ms Majar deposes to in paragraph 11 of her Affidavit. In the circumstances, having regard to the totality of the evidence adduced, I do not think that in this inquiry anything turns on these matters; however I do bring it to the attention of the native title party. There may well be other circumstances where differences between the mapping deposed to and the mapping supplied to the Tribunal could result in certain inferences being drawn.
Aboriginal Communities
[9] There are no Aboriginal communities on or in close proximity to the proposed tenement. The only communities specifically mentioned by the native title party (OSC at para 61) were Balgal (18 km north-west) and Woolaning (30 km east north east).
Recorded or Registered Sites
[10] Mapping and other information supplied to the Tribunal indicates that there are no registered sites within the boundaries of the proposed tenement, but there are four recorded sites, which are set out below:
(a) 4971-49 Nogli – an area on or near a long billabong located approx 5 km north of Bob’s Knob – status 10;
(b) 4971-76 Nowgli – a large lagoon 5 km north of Bob’s Knob – status 10;
(c) 4971-5 – Yinyakama – Bob’s Knob comprises a jumble of quartzite boulders on a high ground above the Reynolds River, a swamp and large tamarind lie nearby – status 10; and
(d) 4971-53 – Putju Putju – an area along a unnamed creek which runs into the mouth of Daly River – approx 6 km south of Mt Johns – status 10.
Each of the above sites (as well as those mentioned below) have been ascribed a status of ten by the AAPA. A site which such a rating is one made known to the Authority, but the requisite work needed to assess the accuracy of the information is only at a formative stage. A registered site must have at least obtained a status of 40. Accordingly each of the sites recorded by the AAPA on or near the proposed tenement is, it would appear, at the early stage of assessment.
[11] In addition there are also a number of recorded sites which are situated in extremely close proximity to the boundaries of ELA 23110. The four recorded sites in closest proximity to the subject area are set out below:
(a) 4971-48 – Marindja – an area located on or near a rather large billabong to the NE from Bob’s Knob – Status 10;
(b) 4971-54 – Watawata – a larged unnamed billabong which forms part of a creek system inland some 12 km from the mouth of the Daly River – status 10;
(c) 4971-2 – Puti – a saline coastal flat known as Palmerston Island in the middle of the Daly River mouth. – status 10; and
(d) 4971-38 – Bwudjirri – a paperbark forest and black soil plain area located on Palmerston Island. A large tamarind tree is located at its northern end. – status 10.
Previous Exploration Activity
[12] Mapping and other information supplied by the government party indicates that the area of the proposed tenement has not been the subject of extensive exploration activity over the previous 25 years. Outlined below are details of previous exploration tenements as supplied by the government party:
Authority to Prospect: AP 1873, 3333.
Exploration Licence: EL 1408, 2407, 3188, 6652, 8258.
[13] The government party also supplied mapping and information on actual exploration activity on the subject area which indicates that stream sediment sampling, rock chip sampling, and percussion drilling have occurred. Exploration has been centred mostly in the north central portion of the subject area, with isolated rock chip sampling and percussion drilling occurring in the southern and south-western sectors.
[14] There are no current mining tenements covering the same area as ELA 23110.
Nature of the Proposed Exploration Activity
[15] The grantee party in the Application for the Grant of an Exploration Licence provided the following information on the proposed work program for the first year:
“Geophysics: Data acquisition & processing
Ground magnetic surveys (restricted area)
Drilling: Aircore, 6 x 70 m holes @ $12/m
Petrology
Laboratory Analysis
Vehicle Hire
Fuel
Equipment purchase/hire
Consultants’ fees
Administrative expenses.”
In addition, the grantee party’s reply to the question of the extent of commitment should encouraging indicators be obtained was as follows:
“Should rocks with the potential to host diamonds be encountered in year 1 further geophysics and diamond (core) drilling will be required to (a) delineate potential ore-bodies (b) identify Petrological variations in the host rock, and (c) assess the diamond potential from micro-diamond content. If the potential is good, bulk sampling will be warranted to determine diamond grades and obtain sufficient macro-diamonds for valuation.”
[16] In correspondence dated 8 April 2002 Mr Craig Mackay, Exploration Manager, Alcaston Mining NL wrote to the Tribunal indicating, inter alia, that Alcaston Mining NL had purchased the licence application from Biddlecombe Pty Ltd. The following additional information was provided on proposed exploration activities:
“1. The Grantee contends that initial diamond exploration planned for ELA 23110 would essentially be very non invasive, involving a number of remote techniques and sampling using hand held and operated equipment and tools. Only after very positive results are obtained would intrusive techniques, such as drilling be considered. Existing tracks are used where possible and dry creek beds are sampled with little affect to either flora, fauna or community. Drilling would be conducted in a way as to cause minimal disturbance to the environment. Any environmental disturbance would be managed and rehabilitated in accordance with Northern Territory Government guidelines.”
[17] At the Listings Hearing of 26 April 2002 I asked Mr Mackay to clarify the position of Alcaston Mining NL vis-a-vis Biddlecombe Pty Ltd. Mr Mackay provided the following information: “What has happened is that Alcaston Mining has purchased the licence application for ELA 23110 from Biddlecombe. And then since that time Alcaston has signed a joint venture agreement with De Beers Australia. So the application now is a joint venture between Alcaston Mining and De Beers Australia.” Subsequently Mr Mackay clarified the situation, informing the Tribunal that the joint venture agreement was conditional on the grant of the exploration licence.
[18] Mr Frith made submissions on this arrangement. He said: “I would like to submit that given that there is a joint venture potentially arising once the tenement is granted, the Member won’t have anything before him as to the intention of the grantee party once that occurs. It might be a more appropriate thing to be put in writing to you.”
[19] Mr Mackay indicated that he would contact De Beers so that formal correspondence was forwarded to the Tribunal clarifying the situation.
[20] On 13 May 2002 Mr Brett Anderson, Tenement Manager of De Beers wrote to the Tribunal advising that De Beers Australia Exploration Limited and Alcaston Mining NL were signatories to an agreement over ELA 23110, and that De Beers fully supported the contentions submitted by Alcaston Mining NL.
[21] While Biddlecombe Pty Ltd remains the grantee party, it would appear the entities who will undertake the relevant exploration activity will be Alcaston Mining NL and De Beers Australia Exploration Limited. Insofar as the Tribunal has a submission from Alcaston Mining NL (which is endorsed by De Beers) which sets out material relevant to an expedited procedure objection inquiry, the Tribunal has taken that information into account in reaching its determination.
Expert Evidence Adduced by the native title party
[22] In addition to the Affidavit of Ann Majar, the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy, the transcripts of evidence given by Messrs Stead and Foy to Member Stuckey-Clarke in December 2001 and the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.
[23] I have considered all of this material in a number of inquiries, and for the purposes of this inquiry I adopt my comments at paragraph 23 of Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002. So far as is relevant, I also adopt the analysis and comments of Deputy President Franklyn in Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].
Land Claim Reports
[24] The native title party relies on the findings in two reports by Aboriginal Land Commissioners, namely the Daly River (Malak Malak) Land Claim Report (“the Daly River Report”) and the Finniss River Land Claim Report (“the Finniss River Report”). The Daly River Report was presented by Toohey J on 12 March 1982 and the Finniss River Report was presented by Toohey J on 22 May 1981. Both Reports are, therefore, founded on evidence that was given more than two decades ago.
[25] Neither of the Reports concerns land or waters that fall within the proposed tenement. However, the native title party seeks to rely on a suggested finding by Toohey J in the Daly River Report that the claimants had the right to forage over the “claim area”. If by this it is suggested that His Honour made a finding on an entitlement to forage on the area the subject of a claim under the Aboriginal Land Rights (Northern Territory) Act 1976, then it is hard to perceive how this is of relevance to this inquiry. As the native title party itself points out, the land under consideration by Toohey J in the Daly River Claim was 24 km south south east of the proposed tenement. There is no apparent basis for concluding that His Honour made a finding concerning foraging on the land and waters the subject of this inquiry. In any event, His Honour’s findings on foraging are so dated that reliance on them in the context of an expedited procedure inquiry 20 years later is highly problematic. If reliance is placed on a finding on an entitlement to forage to support contentions relevant to section 237(a), it has to be appreciated that section 237(a) is directed toward contemporary social and community activities. What may or may not have occurred in the distant past is not necessarily of assistance in determining if there are any current community or social activities that might be interfered with. Similarly the findings by Toohey J in the Finniss River Report are very dated, and the land and the waters subject of that inquiry, were some distance from the proposed tenement. While His Honour made findings about traditional activities on the land and waters in the Wagait Reserve, this is not of particular help to this inquiry as the Reserve is located outside the boundaries of ELA 23110 and to its north. Accordingly, while I have read both Reports I do not find them to be of particular assistance to this inquiry on the issue of foraging. Nevertheless insofar as Toohey J made findings on the “status” of various persons who are member of the native title claim group, I have noted the relevant passages, and indicate that I have found these to be of assistance. I have taken into account His Honour’s findings in both Reports in this regard.
Legal Principles
[26] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
[27] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act, which for ease of reference, is set out below:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
Section 237(a) – Interference with the carrying on of community or social activities
[28] The native title party made the following submissions on community and social activities (OSC at para 64):
“64. The community or social activities of the native title claim group include:
a.Foraging [Daly Land Claim Report [191]; Finniss Land Claim Report [193], [212];
b.Hunting, fishing and gathering of bush tucker [affidavit of Ann Marjar(sic) [8] [12] –[16], [18];
c.Teaching children about traditional laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas or sties [affidavit of Ann Marjar(sic) [10], [15] – [18]];
d.The community of native title holders actively look after country, by visiting and maintaining sites [affidavit of Ann Marjar [10]]. This activity is conducted by individuals with specific responsibility for that area or those sites.
These activities occur over some or all of the licence area and its vicinity.
e.These activities take place at places all over the licence area. Members of the native title claim group can get to Nowgli and the hills. They walk through the licence area from there, carrying out community or social activities [affidavit of Ann Marjar [14]].
These activities occur regularly and are carried on by more than isolated members of the native title claim group:
f.Ann Marjar takes her family at weekends in the dry season. They spend all day hunting and fishing. They went to Bob’s Knob in October 2001 and they went hunting in December 2001 [affidavit of Ann Marjar [14] –[16]].”
[29] Ms Majar deposes that the area of the proposed tenement is important as it is her hunting area. She specifically mentions Marrinja Billabong (Nowgli) where turtles are caught. This area is said to be black soil country, and Ms Majar goes out there in the dry season on weekends. In particular, she mentions staying at Nowgli from morning to sundown and catching turtle, geese and duck. In addition reference is made to hunting at Bob’s Knob for wallaby and goanna. Apart from hunting, Ms Majar also deposes to foraging for mimirri (a thin reed) and for sugarbag. She also takes members of her family onto this general area and teaches them about traditional laws, customs and hunting and gathering techniques.
[30] The government party contended that while Ms Majar deposes at paragraph 3 of her Affidavit that “this area is an important area for us”, she did not depose that ELA 23110 falls within Werat land. While Ms Majar deposes that she is Werat (para 1) she does not depose to the location of Werat land nor is the map attached to her Affidavit marked as she deposes that it was. Nevertheless looking at the whole of her Affidavit, and considering the places, activities and Dreamings she deposes to, it would be a highly technical and somewhat artificial approach to conclude anything other than the fact that Ms Majar can speak for social and community activities on the proposed tenement. Accordingly I have proceeded on the assumption that Werat land includes, in whole or part, the proposed tenement and that Ms Majar can and has deposed to activities, inter alia, on the relevant area.
[31] One problem with Ms Majar’s Affidavit is that while she deposes that the proposed tenement is an important area for hunting and that “we go out there in the dry time, at weekends” only three specific visits are mentioned. The government party highlights (GPCR at para 89) that specific mention is only made of:
(a)the October 2001 visit to Bob’s Knob (para 15);
(b)the December 2001 visit when she taught her husband and children how to hunt ( para 16), although there is no specificity as to whether this was a visit to the proposed tenement or the surrounding country; and
(c) the June/July 2001 visits to Nellie Spur.
As to the last visit the government party contended: “It is submitted that this visit is not relevant to these proceedings as the southern boundary to the Land Trust area is more than 5 kilometres north of the proposed exploration licence, and no information is provided as to where Nellie Spur is located in the large Land Trust area.”
[32] Accordingly, while Ms Majar deposes in general terms to the importance of community and social activities on the proposed tenement, actual examples of those activities are scarce and the number of persons engaging in those activities, and their actual identity, is left largely unaddressed.
[33] The leading decision on the proper interpretation of section 237(a) post the 1998 amendments to the Native Title Act 1993 is Smith v Western Australia (2001) 108 FCR 442. French J pointed out that the Tribunal is required to conduct a predictive assessment, and that a future act is likely to result in interference with community or social activities if it involves a real chance or risk of interference. However, the interference referred to in section 237(a) (at 451) “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.” His Honour also said that:
“in assessing the risk of direct interference the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed act is insubstantial. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”
[34] In assessing the likelihood of the future act interfering directly with the carrying on of the community or social activities of native title holders, I have taken into account the following factors:
(a)the proposed tenement forms part of Perpetual Pastoral Leases 1006 and 1086. The licensees of those Leases together with any employees or agents of the licensees have a right, pursuant to the terms of the lease and the law governing that lease, to carry out lawful activities. To the extent that a pastoral licensee (or persons authorised by the licensee) lawfully exercise rights granted, such activity prevails over any native title rights and interests – s 44H. Toohey J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 (at 133): “If inconsistency is held to exist between the rights and interests conferred by native title and rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.” French J highlighted in Smith v Western Australia that when assessing the risk of direct interference the Tribunal is entitled to have regard to constraints already imposed on community or social activities by third parties. In this instance the Tribunal has had regard to the fact that community or social activities on the proposed tenement by native title holders are already subject to lawful activities of the grantees of Perpetual Pastoral Leases 1006 and 1086;
(b)the area comprising ELA 23110 has been the subject of fairly limited exploration activity from approximately 1968 to 1991. Moreover the area of the proposed tenement subject to exploration is relatively localised. Nevertheless, the native title party has produced no evidence that previous exploration has in any material way interfered with community or social activities.
(c)there are no Aboriginal communities located within, or in close proximity to, the proposed tenement;
(d)there is only limited evidence of community and social activities occurring on the proposed tenement, in particular:
(i)some of the activities deposed to occur outside the proposed tenement (paragraph 7 which deals with poison country north of the proposed tenement and paragraph 18 which deals with the Wagait Aboriginal Land Trust Area);
(ii)it is not clear how many native title holders engage in community or social activities. While Ms Majar refers to her husband and children, the number of people involved is not clear. Moreover, there is no mention of any other native title holders engaging in hunting, fishing or foraging activities other than her immediate family; and.
(iii)while it is suggested that traditional activities are engaged in on the proposed tenement at weekends during the Dry Season, there are only two identifiable references to recent trips to the proposed tenement (paragraphs 15 and 16). One of those references, in fact related to the Wet Season. Accordingly while there is a clear assertion of frequency of trips to, and activities on, the proposed tenement, the particulars in the Affidavit do not support such a finding;
(e)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. In previous inquiries I have referred to the conditions imposed on grantees pursuant to section 24A of the Mining Act. I will not repeat each and every one of the relevant conditions, however I do set out the first two conditions which are of particular relevance to a section 237(a) assessment:
“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;
(b) any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out is activities in such a way as to minimise the disturbance of 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.”
There are other provisions in force in the Northern Territory which I have also previously outlined in other inquiries, however 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) disturbance to 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;
(f) Alcaston Mining NL has contended (Gr1) that it will conduct its operations in a way so as to minimise, as far as possible, any interference with “fauna, flora or community”. In particular the following statement of intention was made: “The Grantee is more than happy to meet with claimants to discuss and explain our intentions and methods with a view to reaching a negotiated agreement that protects the claimants interests whilst allowing the Grantee to explore.” and
(g) the Tribunal is entitled to presume that the grantee party will act lawfully in exercising rights given under the exploration licence – see Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Deputy President Franklyn.
[35] In conclusion, while I accept that community and social activities are carried on by native title holders on the subject area, I am not satisfied on the material before the Tribunal, and having regard to the factors outlined above, that there is any real chance or likelihood that the grant of the proposed tenement would be likely to result in direct interference within the meaning of section 237(a).
Section 237(b) – Areas or sites of particular significance
[36] The native title party made extensive submissions (OSC at paras 73-74) on areas or sites which were said to be of particular significance within the meaning of section 237(b):
“73. There are areas or sites of particular significance that the grant of the exploration licence is likely to interfere with:
a. Nowgli, called Marrinja Billabong by some people [affidavit of Ann Marjar [3]].
b. Bob’s Knob [affidavit of Ann Marjar [4]].
c. There is a Dreaming Track for Freshwater Crocodile from Bob’s Knob south to the Reynolds River [affidavit of Ann Marjar [5]].
d. The place on the Reynolds River where the saltwater and freshwater meet, south of Bob’s Knob [affidavit of Ann Marjar [5]].
e. An area of poison country just north of the licence area at the end of the line of hills, called Murrenja. The hills end at a point [affidavit of Ann Marjar [7]; map attached].
f. The pools at Bob’s Knob, Murrenja, Nowgli, and the end of Mt Johns on area E3 on the Wagait Land Trust [affidavit of Ann Marjar [9]];
g. A place on the Reynolds River, south of Bob’s Knob [marked on the map], where Pulipuli left the river [affidavit of Ann Marjar [11]; map attached].
74. The particular significance of these sites identified by the evidence is:
a. Nowgli has a pool, which is an eye, watching the country (see below [f]) [affidavit of Ann Marjar [9]].
b. Bob’s Knob is a very important area:
(i) There used to be big spear fights there in the old days.
(ii) It was an important Men’s Ceremony site, where men from all around used to bring young boys for ceremony. Ceremony is no longer performed there, but it is still an important place [affidavit of Ann Marjar [4]].
(iii) It is in dangerous poison country. This is an area for Death Adder, King Brown snake and Goanna. It’s a breeding ground where they lay eggs. The King Brown Dreaming Track is called Duruk [affidavit of Ann Marjar [6]].
(iv) It has a pool, which is an eye, watching the country (see below, at [f]) [affidavit of Ann Marjar [9]].
c. The Duruk Dreaming Track, Freshwater Crocodile, runs from Bob’s Knob south to the Reynolds River, where it met the Saltwater Crocodile [affidavit of Ann Marjar [5]].
d. The place on the Reynolds River where the saltwater and freshwater crocodile meet, south of Bob’s Knob. There was a story for that place. It is where the Saltwater Crocodile turned back to the coast [affidavit of Ann Marjar [5]].
e. Murrenja is poison country. There are lots of White Apple and other bush foods here, but if you eat them you’ll get sick. Aboriginal people use them to curse a person. You come out in sores from head to foot; it’s like acid that eats down to your bones [affidavit of Ann Marjar [7]].
f. The pools at Bob’s Knob, Murrenja, Nowgli, and the end of Mt Johns on area E3k on the Wagait Land Trust are all connected to each other and are in touch with each other. These Dreaming Sites all have ‘eyes’; pools of spring water, watching the country. They can see if there are strangers on the country, and can cause them to get sick if they are not properly introduced to the country. They pass information about strangers to each other, and if none of them recognise the stranger, the stranger is in danger of getting sick [affidavit of Ann Marjar [9]].
g. The place on the Reynolds River, south of Bob’s Knob [marked on the map], where Pulipuli, the Rainbow Serpent, left he river has a story attached. The country was all burnt where it passed through and the banks of the river caved in. There was a fire burning the pandanus [affidavit of Ann Marjar [11]].”
[37] The following points can be made about the evidence adduced by the native title party on areas or sites of suggested particular significance:
(a)the general area of the proposed tenement contains a number of dreaming tracks and sites which are connected and in touch with each other by means of “eyes”, which are pools of water, and which also watch the country and guard against strangers who are in danger of getting sick unless proper protocols are followed (paras 8-10);
(b)Nowgli (or Marrinja Billabong) is said by Ms Majar to be part of a Dreaming track (para 9), which also includes Bob’s Knob, Murrenja and Mt Johns. It is located in an area which is said to be “important”;
(c)While Bob’s Knob is no longer used a ceremony site (para 4), it is part of “a very important area” . In particular it appears to be the commencement point of the Freshwater Crocodile dreaming track (para 5) and also constitutes part of the King Brown Dreaming track (para 6);
(d)I accept Ms Majar’s statement that persons visiting this area have to be introduced to country in the traditional manner;
(e)the material before the Tribunal indicates that Ms Majar has the requisite authority to speak for sites and for the country the subject of the proposed licence; and
(f)I accept that Ms Majar places particular importance on Bob’s Knob and Nowgli as sites having spiritual and customary significance to the Werat.
[38] Alcaston Mining NL made the following submissions on behalf of the grantee party (Gr1):
“2. The Grantee accepts that the Objectors have a spiritual connection to and are responsible for their country, but does not agree that they have a legitimate reason to be fearful that they would lose their connection to the land if the tenement were to be granted. The grantee has no intention to cause any harm to the land without the consent of the Objectors. The grantee will respect the concerns of the Native Title claimants.
3. It is not the policy of the Grantee to explore under circumstances where Aborigines having responsibility for the land genuinely believe that a significant site will be affected.
4. The Grantee agrees that some artefact scatters may be significant and support their identification, recording and protection so that all concerned may avoid their disruption. Registration of all sites with the Aboriginal Affairs Department would be beneficial to all. The grantee intends to negotiate with the Objectors to avoid interference with sites and areas of particular significance.
5. The Grantee is more than happy to meet with claimants to discuss and explain our intentions and methods, with a view to reaching a negotiated agreement that protects the claimant’s interests whilst allowing the Grantee to explore.”
[39] The government party made lengthy submissions on the regulatory regime in force in the Northern Territory, and contended that on the basis of the evidence adduced and the protections contained in the relevant legislation that the Tribunal could not conclude that it is likely there is a real risk of a proximate impact to an area or site of particular significance – GPCR at para 73.
[40] In previous determinations I have given careful attention to the relevant provisions of the Northern Territory Aboriginal Sacred Sites Act (in particular ss 33-37). Moreover section 24 of the Mining Act provides that every exploration licence shall, unless expressly waived, varied or suspended by the Minister, be granted subject to a condition that the licensee will:
“(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, otherwise than in accordance with that law.”
[41] The above provisions, are, of course, directed at areas or sites processed under the abovementioned sacred sites legislation. However, there are also other provisions that deal with areas or sites in a broader sense. Condition 1 of the section 24A (Second Schedule) Conditions (set out previously) specifically requires a licensee to carry out its activities in such a way as to minimise any interference with areas or sites of particular significance. Other Conditions of relevance are set out below:
(a)Condition 3 requires that all exploration personnel and their contractors and agents must be instructed on the legal necessity to protect sacred sites and other significant archaeological sites and structures which may exist within a licence area;
(b)Condition 4 requires a licensee to consult with the AAPA and inspect the Sites Register before commencing any work in the licence area; and
(c)Condition 18 imposes an obligation on a licensee prior to the commencement of exploration activities to convene a meeting on the licence area (or nearest convenient locality) with registered native title claimants to explain the proposed exploration activities. The licensee is required to have regard to any representations made concerning any concerns of native title holders. Specifically Condition 18 (c) says: “These representations may deal with the avoidance access procedures of particular areas of land within the licence area.” There is also a complaint mechanism in Condition 20 allowing dissatisfied native title holders to complain to the Minister, and empowering the Minister to intervene.
[42] The cumulative effect of these (and other) provisions is to put in a place a comprehensive and well integrated regime designed to ensure that the risk of interference with areas or sites or particular significance is minimised. Of course, the operation of this regime does not inexorably lead to the conclusion in every inquiry that there is not a real risk or chance of interference within the meaning of section 237(b). Nonetheless, in making an assessment of the likelihood of interference, the fact that the Northern Territory has put in place a series of a provisions designed to address and minimise the risk such interference, is a relevant and very important consideration.
[43] In this matter, I am satisfied that Ms Majar has the authority to speak for the areas and sites she has deposed to. Moreover, I am also satisfied that the general area of the proposed tenement contains dreaming tracks and particular sites that are of particular significance within the meaning of section 237(b). The evidence presented demonstrates that Bob’s Knob is a site of particular significance as is Nowgli.
[44] However, the Tribunal has also been presented with specific evidence from Alcaston Mining NL about how it will operate, and, in particular, the importance it places on proper consultation with traditional owners. I have no reason to doubt that Alcaston Mining NL and De Beers would operate in the manner outlined and that further either the grantee party or these companies would act lawfully in exercising rights given under the exploration licence.
[45] In addition, the Tribunal has before it evidence of the various legislative provisions previously mentioned. I am satisfied that the operation of those provisions would in most circumstances ensure that there would not be a real risk or likelihood of interference with areas or sites of particular significance.
[46] The material presented does not demonstrate that this is a “site rich” area such that even with the protections afforded by the regulatory regime there is a greater likelihood of a real risk or chance of interference with areas or sites.
[47] In summary, then, while I accept that the proposed tenement contains two sites of particular significance, and that it generally contains dreaming tracks and other places of importance to native title holders, I am satisfied that the operation of the regulatory regime for the protection of sites and the proposed modus operandi of the Alcaston Mining NL and De Beers is such, that there is not a real risk or chance of interference within the meaning of section 237(b).
Section 237(c) – Major disturbance to land or waters
[48] The native title party made extensive submissions on the issue of major disturbance, however the vast bulk of those submissions were not directed to the particular circumstances of the proposed tenement, but were of a generic type received in most expedited procedure objection inquiries.
[49] In Moses Silver I set out key provisions of the then regulatory regime governing exploration activities in the Northern Territory. Subsequently Deputy President Franklyn described the changes brought about by the Mining Management Act in Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, 27 March 2002 and Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported 17 April 2002. More recently I considered the relevant provisions of the Mining Management Act in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002. I adopt, for the purposes of this inquiry, the analysis of the regulatory regime set out in the abovementioned determinations. In particular I have considered the following provisions in this inquiry: sections 24(j), 24A (in particular Conditions 2, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 20), 166(1A), (1B) and (2) of the Mining Act and Parts 3 and 4 of the Mining Management Act. The evidence submitted in this inquiry about the regulatory regime is consistent with previous findings of the Tribunal that it 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.
[50] The evidence before the Tribunal discloses that while the area of the proposed tenement has been the subject of some exploration activity, it has been relatively limited and localised. Nonetheless, the native title party has submitted no evidence that any previous exploration activity has resulted in major disturbance to the relevant land and waters.
[51] In addition, no evidence has been produced that there are any sensitive geological or environmental areas in the proposed tenement which would render it more likely that the proposed exploration activities would result in major disturbance to land or waters.
[52] It also must be borne in mind that there are no communities situated on or immediately adjacent to the proposed tenement who would be directly affected by exploration activities.
[53] Finally it is not clear from Ms Majar’s affidavit that she is necessarily opposed to exploration occurring. Ms Majar sets out in clear and eloquent terms the importance of various dreaming tracks and need for proper protocols to be followed by strangers. In particular she explains the need for strangers to be introduced to country and for a ceremony to take place to ensure that they do not get sick However, it would appear that Ms Majar’s concerns are that strangers to country go about their activities in a proper fashion, not a concern that there be a blanket prohibition on mining exploration. The compulsory on site consultation (condition 18 of the “Second Schedule” Conditions made pursuant to section 24A of the Mining Act) between the grantee party and registered native title claimants when concerns can be ventilated should ensure that issues such as these can be addressed and proper protocols developed.
[54] I have also taken into account the statements by Alcaston Mining NL about the type of mining exploration that it proposes, the manner in which that exploration will occur and the protocols it will establish.
[55] I am satisfied on the basis of the evidence before the Tribunal, the absence of any evidence of disturbance from previous exploration activity, the nature of the regulatory regime governing mining exploration in the Northern Territory and the absence of any material indicating that the subject area has particular environmental or geological considerations, that it is not likely that the grant of the exploration licence would result in major disturbance within the meaning of section 237(c).
Determination
The determination of the Tribunal is that the grant of Exploration Licence 23110 to Biddlecombe Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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