Dingie Neade/McCleary Investments Pty Ltd/Northern Territory
[2002] NNTTA 52
•19 April 2002
NATIONAL NATIVE TITLE TRIBUNAL
Dingie Neade/McCleary Investments Pty Ltd/Northern Territory, [2002] NNTTA 52 (19 April 2002)
APPLICATION NO: DO01/55
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of a Future Act Determination Application
Dingie Neade (Native Title Party)
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McCleary Investments Pty Ltd (Grantee Party)
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Northern Territory of Australia (Government Party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: J. E. Stuckey-Clarke, Member
Place: Sydney
Date: 19 April 2002
Hearing dates: 5 December 2001, 20 December 2001, 18 January 2002, 28 February 2002, 5 March 2002
Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr John Goulevitch
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – grantee party’s intentions – presumption of regularity – likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation:
Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 109, 146, 151, 237
Cases:
C.N.Hardie/Western Australia/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO 00/92, Member Stuckey-Clarke 25 June 2001
William Risk and Kathleen Mary-Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso 15 April 2002
Smith v Western Australia [2001] FCA 19
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Cheinmora v Striker (1996) 142 ALR 21
Western Australia/Winnie McHenry WO 98/125, Deputy President Franklyn, 28 July 1999
Ward v Western Australia (1996) 69 FCR 208
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002
REASONS FOR DETERMINATION
Background
[1] On 21 February 2001, the Northern Territory(“the government party”) gave notice pursuant to section 29 of the Native Title Act (“the Act”) that it proposed to grant Exploration Licence 9824 (“the proposed tenement”) to McCleary Investments 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 147 blocks( a block is approximately 2.9 square kilometres), being approximately 449 square kilometres, within the Carrara locality. The proposed tenement is wholly within Perpetual Pastoral lease 1034, known as “Mount Drummond”.
[3] On 15 February 2001 a native title determination application was filed with the Federal Court(D6012/01). The name of the application is “Mt Drummond” and the applicant is Dingie Neade. The application was registered on 12 March 2001. The Mt Drummond application covers the whole of the area of the proposed tenement.
[4] A Form 4(Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (21 June 2001) after the section 29(4) notification day(21 February 2001). Dingie Neade is the named objector.
[5] On 1 October 2001 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.
[6] On 11 July 2001 Deputy President Sumner made directions in relation to this inquiry. Those directions were subsequently followed by all parties to the inquiry. I issued further directions at various listing hearings, the last of which was convened on 5 March 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determine the matter on the papers and I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section 151 of the Act.
The Evidence
Objector’s Evidence
[7] The native title party relies upon the affidavit of Peter Parlow affirmed 25 October 2001 which is set out in full below:
“1. The area of the Mount Drummond(D6012/00)(sic) native title determination application includes the area of ELA 9824. I have seen a map of the area of the ELA. Now produced and shown to me marked “PP-9824” is a map of the ELA.
2. When we were working at Mount Drummond, we went up to Carrarra(sic) Waterhole, and went fishing and getting sugarbag. It was water all year. We went along the creeks a bit, but it was mostly dry, so we went back to the main water hole.
3. I was working there in the eighties. I was there for eight years. There are other Aboriginal people there now; they only employ Aboriginal people. There’s a caretaker there now.
4. We used to hunt goanna, bush turkey, kangaroo. When we were working there, we were eating bush foods, including conkerberry(wild plum), wild lily. Every time the manager gave us a day off, that’s what we’d do. We’d go out fishing at Fish Hole on the boundary of ELA 9824 and ELA 10373. We still do that. It holds water right through.
5. If the mining company was there drilling, we wouldn’t go there. They might have a rule for us to stay. Aboriginal people get a bit nervous when they are there. They make you feel like you’re trespassing; it’s like you give them the right to own the land. You feel that if you go in there, you’ll get shot. Unless they say to you that you can come in. But if they start drilling, then you got to stay away.
All the facts and circumstances deposed to in this affidavit are within my own knowledge except where they are stated to be from information only and my means of knowledge and sources of information appear on the face of this affidavit.”
[8] The native title party also submitted the following evidentiary material to the Tribunal:
(a) Select pages from the Nicholson River(Waanyi/Garawa)Land Claim Report, dated 26/7/1984 (“the Land Claim Report”) of the Commissioner appointed under the Aboriginal Land Rights(Northern Territory)Act 1976 (Cth)(“the Land Rights Act”), being pages 35 and 38.
(b) The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001;
(c) The affidavit of Mark Frederick Foy affirmed 6 November 2001.
These two deponents gave evidence at oral hearings conducted on 3 and 4 December 2001.
(d) Information provided by the Aboriginal Areas Protection Authority in relation to Aboriginal Sacred Sites within the area of the proposed tenement(“the AAPA sites information”).
The Government Party’s Evidence
[9] The government party submitted its Standard Exhibit as well as the following evidentiary material to the Tribunal:
(a)A topographical map marked with the area of the proposed tenement, location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act(“the Sacred Sites Act”), tenure details and any known Aboriginal communities;
(b)A schedule of details of the sacred sites referred to;
(c)Mining tenement documents, including the licence application and details of any current mining tenement and prior mining tenements granted over the same area;
(d)A Revised Prior Tenement Schedule, prior exploration licence map, previous exploration activity map and schedule and existing title holder map and schedule.
(e) The affidavit of Timothy Milne Gosling sworn 5 December 2001;
(f) The affidavit of Hugh Joseph Bland sworn 29 November 2001.
The Grantee Party’s Evidence
[10] The grantee party lodged a signed statement of John Goulevitch, exploration manager of the grantee party and managing director of Exploremin Pty Ltd.
The Parties’ Contentions
[11] All of the parties filed written contentions in the proceedings which I have considered in detail and to which I will refer with particularity where appropriate.
General Legal Principles
[12] Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…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 persons who are holders …of the native title in relation to the waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or to create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[13] Both the government and native title parties filed extensive written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.
Reasoning
Section 237(a) – Interference with carrying on of community or social life
[14] The Government party in its Statement of Contentions at [14]-[26] set out is submissions as to the proper construction of section 237(a) with which I agree. In [27] of its Contentions the government party asserts that the grant is not likely to interfere within the meaning of section 237(a) because there is no Aboriginal community on the land and there is no evidence of sufficient specificity in relation to community or social activities conducted on the land.
[15] The native title party in its Contentions at [39]-[42] contends that:
(a)The Waanyi/Garawa Aboriginal Land Trust adjoins the licence area. Murun Murula Community lies in the southern part of the Land Trust area. Further, the Connell Lagoon Community on the Mittiebah Aboriginal Land lies about 80 kilometres west of the tenement.
(b)There are several roads inside and in the vicinity of the tenement which members of the claim group use to access the communities;
(c)There are several water bodies and other areas of significance for fishing, water and food gathering purposes in and near the tenement area. Ten water bodies are named including Fish Hole Waterhole, Boomerang and Top Reedy Waterholes.
(d)The community and social activities include Foraging(the Land Claim Report at [218] and [234]) and hunting fishing and gathering bush tucker (Affidavit of Parlow,[2] and[4]).
[16] The grantee party made the following contentions in reply to the native title party’s contentions:
(a)the Land Trust area extends 120 Kilometres north from the tenement;
(b)Murun Murula Community is about 14 kilometres from the tenement boundary over quite rugged country;
(c)Fish Hole Waterhole may be just outside the boundary of EL 9824 as a result of the shift in the boundary of the proposed EL with the application of the GDA 94 survey datum from the start of 2000.
(d)All of the tracks referred to are likely to be regularly used for station activities;
(e)Fish Hole, Boomerang and Top Reedy Waterholes all appear to be just outside of the area of the EL Application – Top Reedy to the north of the area(on Aboriginal freehold land) and both Fish Hole and Boomerang to the south. The EL application covers an area of about 35 kilometres e-w and 8-15 kilometres n-s.
(f)“The tributaries of the creeks referred to [by the native title party] appear to drain the entire area(448 square kilometres) of the EL application and include several hundred kilometres of creek length in total. For much of the time these drainages would be dry apart from very isolated waterholes(?Fish Hole, Boomerang and Top Reedy).”
(g)“No evidence is provided that these activities are carried out on such a regular basis that they are likely to be directly impacted upon by exploration activities on the area of EL application 9824. The Grantee party has a demonstrated history of keeping relevant local Aboriginal people informed of its intended exploration activities to avoid direct interference with their social activities in the area.” (The grantee party has placed before the Tribunal copies of the notices which issue to local aboriginal elders before commencing any field activity and has advised that its usual practice is to telephone as well.)
(h)It is almost universal practice in the Top End of the Northern Territory for exploration activities to be spread at intervals over a few months of the dry season each year when there is no water in the creeks and gullies which drain EL 9824.”
[17] As both the government and grantee parties contend, the evidence, as opposed to contentions of community and social activities provided by the native title party is slight and non-specific. There is no Aboriginal community on the tenement, Murun Mulan is 14 kilometres away but across rugged terrain and the next closest community Connell’s Lagoon is 80 kilometres away. Although in the eighties he worked at Mt Drummond station, the location of which is not specified on any of the maps before me, Mr Parlow now lives at Connell’s Lagoon which is 80 kilometres from the tenement. There is no evidence to this effect, however, I assume the others who go with Mr Parlow to Fish Hole Waterhole are from the same community. Although there is some dispute, I am prepared to accept that Fish Hole Waterhole is within the tenement but it is on the southern most boundary, further from Murun Mulan and Connell’s Lagoon than many points on the tenement. Indeed it would be possible for the native title parties to go to Fish Hole Waterhole and not to any other part of the tenement depending on where they are travelling from. In my view, the evidence of fishing, food gathering and foraging at Fish Hole Waterhole is not indicative of contemporary community and social activity substantial enough to warrant the protection of this section. Similarly, it is asserted that native title parties access roads on the tenement but that activity is not sufficient or significant enough either in my view, taking the evaluative and contextual approach of and applying the test of direct interference explained by Justice French in Smith v. Western Australia [2001] FCA 19 since the roads would also be used for pastoral purposes and other public purposes.
[18] The native title party also relies upon the Land Claim Report extracts as evidence of foraging activities. The evidential value of these extracts is slight given the time which has elapsed since the Report was written, the fact that the land the subject of the Land Claim is not within or coextensive with the tenement and the somewhat vague relationship between the objectors and the traditional owners. However, even accepting that the Land Claim findings are relevant to the present issue, the findings only confirm responsibilities and entitlements to forage found to exist in 1984. What section 237(a) requires is evidence of contemporary activities on the proposed tenement or from which they might be inferred: see William Risk and Kathleen Mary Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso, 15 April 2002 at [35]-[38].The findings of the Land Claim Report taken at their highest do not, considered in light of the totality of the evidence on this issue, provide such evidence.
[19] As Justice French said in Smith v. Western Australia (2001) 108 FCR 442 at 451:
“ The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference is to some degree evaluative. It must be substantial in its impact on community or social activities. That is to say trivial impacts or impacts which are not relevant for carrying out of community or social activities are outside the scope of the kind of interference contemplated by the section.”
In the present inquiry, the evidence of community or social activities on the tenement is extremely slight but even assuming that there is occasional fishing, hunting and foraging at Fish Hole Waterhole, and assuming that the grantee’s notification policy is not effected or effective, the impact of such interference would in my view be a trivial impact only and not one intended to be sanctioned by this section. I take a similar view of the alleged interference with road access. In conclusion, on the basis of the evidence before me, I find that it is not likely that the proposed grant will interfere directly with community and social activities of the native title parties.
Section 237(b) – Sites of Particular Significance
[20] In Moses Silver at [86] –[107], Member Sosso analysed issues raised by the contentions of the government and native title parties in respect of the general legal principles applicable to and the proper construction of section 237(b) which were also raised in substantially similar contentions before me in this inquiry. I agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.
[21] So far as section 237(b) is concerned, the phrase “interfere with sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the nature of an area or site’s significance to the holders of native title must be explained to the Tribunal: see Western Australia/Winnie McHenry WO 98/125, 28 July 1999. It will usually be the case that evidence relating to particular significance will be peculiarly within the knowledge of the native title party so that failure to lead such evidence may lead to the drawing of an unfavourable inference on the issue: see Carr J. in Ward v. Western Australia (1996) 69 FCR 208 at [217].
[22] In the present inquiry, Mr Parlow gives no evidence in relation to the particular significance of any site, nor does he swear to his authority to speak in respect of this issue:see Albert Little v. The State of Western Australia and Wildbeach Corp.[2001] FCA 1706. The documentary evidence of sacred sites indicates that there are several recorded sites on the tenement, including Carrara Waterhole(6460-5) and Gundangwudangyiri (6460-6). Fish Hole Waterhole is not recorded. Such documentary evidence of itself is unlikely ever to be sufficient to satisfy the requirement of particular significance to the native title holders under the section because of the breadth of the definition of sacred site under the Northern Territory Sacred Sites Act.
[23] In conclusion, I find that there is before me no evidence of any site or area of particular significance to the native title holders and therefore that it is not likely that the proposed tenement will interfere with any such sites.
Section 237(c)–Major Disturbance to Land or Waters
[24] In Roy Dixon/Plenty River Corp. Ltd/Northern Territory, DO01/51, 19 April, 2002 at [31]-[36] and [38]-[40]I dealt with the contentions substantially similar to those made by the government and native title parties in this inquiry in respect of the general legal principles applicable to the operation of this subsection and I repeat them here.
[25] Further, Mr Goulevich in his affidavit lodged for the grantee party dealt in useful detail with aspects of Mr Foy’s affidavit. Of the various techniques discussed by Mr Foy, Mr Goulevich, whose expertise I consider sufficiently evidenced, swears that infrared, radar, water, magnetic, seismic and electrical techniques are uncommonly used in the Northern Territory and that remote sensing, geochemical surveying and geophysical surveying are all non-intrusive. He deposes to the probability of costeaning being employed as an exploration technique as being less than l in 50/100 in modern exploration activity in the Northern Territory and says that it is not likely to occur during the life of the proposed tenement. Further, he says that modern best-practice for modern costeaning is to use hydraulic excavators to minimize land disturbance during excavation and to ensure a high standard of rehabilitation such that after one to three wet seasons it is impossible to identify the location of old costeans. He also swears that drilling is not likely to occur during the life of the tenement and that with RAB and Diamond Drilling modern techniques do not permit the escape of dust and contaminants into waterways. Finally, so far as ore reserve drilling is concerned, it would generally be concentrated in a very small area and the grantee party would not, as with all drilling programmes, undertake it before the AAPA cleared the area for sacred sites and sites of cultural significance. I accept Mr Goulevich’s evidence as evidence of the practices which the grantee is likely to adopt in carrying out its exploration activities.
[26] In the area of the proposed tenement, the government party’s Revised Prior Tenement Schedule indicates that there has been very substantial exploration activity on the tenement since as early as 1976, with activity in periods from 1976-1988 and 1990-1995.
[27] Having considered the extensive statutory regime in the Northern Territory relating to protection of sacred sites and mining, having evidence before me of the grantee’s intentions to comply with that regime and of its proposed practices, and having considered the evidence of previous mining activity on the tenement, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 9824 to McCleary Investments Pty Ltd is an act which attracts the expedited procedure under the NativeTitle Act l993.
J. E. Stuckey-Clarke
Member
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