Dingie Neade/Minorco Australia Limited/Northern Territory
[2002] NNTTA 78
•3 May 2002
NATIONAL NATIVE TITLE TRIBUNAL
Dingie Neade/Minorco Australia Limited/Northern Territory, [2002] NNTTA 78
(3 May 2002)
APPLICATION NO: DO01/17
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Dingie Neade (Native Title Party)
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Minorco Australia Limited (Grantee Party)
- and -
Northern Territory of Australia (Government Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: J. E. Stuckey-Clarke, Member
Place: Sydney
Date: 3 May 2002
Hearing dates: 11 July 2001; 10 October 2001; 25 October 2001; 30 October 2001; 9 November 2001; 3 December 2001; 4 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 Colin Wood
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 13 December 2000, 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 22162(“the proposed tenement”) to Minorco Australia 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 169 blocks(a block is approximately 2.9 square kilometres), within the Carrara locality. The area of the proposed tenement is comprised of the following pastoral leasehold: Perpetual Pastoral Lease 1034(known as Mount Drummond).
[3] On 15 February 2001 a native title determination application was filed with the Federal Court(D 6012/01). The name of the application is “Mount Drummond” and the applicant is Mr Dingie Neade. The application was registered on l2 March 2001. The Mount 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 (9 April 2001) after the section 29(4) notification day(13 December 2000). Mr Dingie Neade is the named objector. The Tribunal has previously determined that Form 4 objections in Group 4 have been properly accepted and that, while a Form 4 cannot be amended in a substantive manner after the statutory 4 month time limit has expired, there is no amendment of a Form 4 by the submission to the Tribunal of such matters as are contained in the contentions of the native title party in the matters before me: see the Decision of Member Sosso on whether the Tribunal has Jurisdiction to conduct an inquiry in Applications No. DO 01/3, DO 01/13, DO 01/19-23, unreported, 21 December 2001. I agree with and follow Member Sosso’s decision in those matters. I conclude that the Tribunal has jurisdiction to determine this inquiry.
[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 the 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 determining 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 l5l of the Act.
The Evidence
Objector’s Evidence
[7] The native title party relies upon an affidavit of Mr Peter Parlow of Connell’s Lagoon affirmed 25 October 2001 which is set out in full below:
”1. The area of the Mount Drummond (D6012/00) native title determination application includes the area of ELA 22l62. I have seen a map of the area of the ELA. Now produced and shown to me marked “PP-22l62” is a map of the ELA.
2. When we were working on Mount Drummond, we went up to Carrarra[sic] Waterhole, and went fishing and getting sugarbag. It has 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 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.”
The native title party also relies on the affidavit of Mr Jacky Hogan of Murunmurula, South Nicholson affirmed 29 October 2001, the contents of which are set out below:
“1. The area of the Mount Drummond (D6012/00) native title determination application includes the area of ELA 22162. I have seen a map of the area of the ELA.
2. I have worked up there at Mount Drummond. I always go up there. I went there last year and the year before. We were running cattle there from Nicholson River. We went fishing at the Border Water Hole, and New Highland Plains on the Queensland side.
3. We took the cattle to Boomerang Hole. We went fishing there; there are a lot of good places. We go for the fish and hunt goanna and kangaroo.
4. I went up the Carrara Creek the year before last. We went looking for horses from the Territory side. We were hunting and fishing there.
5. When I went up there last year, people had already started exploring for rock. They were there already. They were mapping things. I forget the name of the company. I’d like to know what they were doing. They said they were doing mapping”
It should be noted that Boomerang Waterhole is not on the proposed tenement according to the map provided by the native title party nor are Carrara Waterhole or Border Waterhole.
[8] The native title party submitted the following further evidentiary material to the Tribunal:
(a)Extracts from the Nicolson River (Waanyi/Garawa)Land Claim Report dated 26 July 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; and
(c)The affidavit of Mark Frederick Foy affirmed 24 October 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 submitted its Standard Exhibits 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 1989(“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)Affidavit of Timothy Milne Gosling sworn 5 December 2001;
(f)Affidavit of Hugh Joseph Bland sworn 29 November 2001.
The Grantee Party’s Evidence
[10] The grantee party led no affidavit evidence in the proceedings.
The Parties’ Contentions
[11] The government and native title parties filed extensive contentions in the proceedings. I have considered the contentions in detail and will refer to them 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 the 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 create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[13] Both the government and the native title parties filed 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 D0 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 activities
[14] The Government party in its Statement of Contentions at [14]-[26] set out its submissions as to the proper construction of section 237(a) with which I agree. I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.
[15] The native title party in its Contentions at [39]-[42] contends that:
(a)There are several aboriginal communities ‘in the vicinity of” the proposed tenement which are occupied by members of the native title claim group, including Doomadgee in Queensland;
(b)There are two tracks traversing the proposed tenement “inside, and in the vicinity of, the licence area that are frequently used by the members of the claim group to access the communities……;”
(c)Carrara Creek, with its tributaries and waterholes, and Don and Lancewood Creeks with their tributaries are two of several water bodies in and around the proposed tenement used for fishing, drinking and sustaining sites of significance;
(d)The community and social activities include Foraging[Land Claim Report [209]&[224].
[16] The government party in its contentions in reply at [13]-[19] said:
“13. The one location mentioned in Paragraph 39 are well outside the proposed licence are so much so that it is in Queensland..
14. There is an issue of relevance and also of particularity with Paragraph 40. If the Objectors are asking the Tribunal to conclude that the potential use of the roads and tracks(both public and private) by the grantee is an interference directly with the carrying on of the claimed activities, it is an insubstantial impact, bordering on the trivial. Trivial impacts are not within the scope of s.237(per French J. in Derrick Smith at [26]).
15. Any number of other users, Aboriginal and non-Aboriginal, utilize these roads and tracks and any of them could potentially cut up unsealed tracks, cause the dust or noise alleged or cause a member of the native title group to re-consider whether to discharge a firearm………..
16….French J. said [in that paragraph]:
“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.”
It would be unreal to assume that the native title claim group members can attend to community or social activities on pastoral leasehold in some sort of exclusive zone where impact from other lawful users is not tolerated. These other users need accommodate the lawful activities of the native title claim group members and it must be presumed that concurrent rights holders will respect the co-existent rights of others in relation to pastoral land the subject of exploration activities.
17. As to Paragraph 42, the lack of particularity makes it impossible for the Tribunal to attribute any evidentiary weight to the assertions. The specific locations at which the fishing, hunting and foraging activities are said to occur are patchily identified, the overall range where such activities can be carried [out] is not stated; the seasonal variations in the game, fish or article sought, the number of persons engaged in these activities; all are unstated.
18. As to the frequency of these activities, Messrs Parlow and Hogan say that the collection of sugarbag and the gathering of conkerberry occurs on occasion but neither states the regularity of this foraging or any other activity:
19. As to Paragraphs 43-47 of the Objector’s Contentions, the apprehended interference must be direct, meaning that the act must be the proximate cause of that apprehended interference,(per French J in Derrick Smith at [26])….Moreover, this impact must be substantial. The affidavit material of the Objector simply does not establish the how, when, where and why a substantial impact on the carrying on of any of the claimed community or social activities is likely to occur…”
[17] In my view, what the native title party asserts in these contentions is not supported by the evidence before me. There is no evidence before me of any community or social activities actually conducted at the present time on the proposed tenement which would be directly interfered with by the proposed grant in a substantial and not merely trivial way. I accept the contentions of the government party in coming to this conclusion. Further the evidence of such activities such as it is of fairly infrequent and insubstantial activity. It is the fact that there is no Aboriginal community on the proposed tenement and the aboriginal community “in the vicinity of” the proposed tenement is at some distance from the tenement and situated in Queensland. Further the communities where the two deponents live, Connell’s Lagoon and Murumurula, South Nicholson are at least 50 kilometres from the proposed tenement and the sites where foraging is said to occur, namely Border Waterhole, Boomerang Waterhole and Carrara Creek are not on the proposed tenement according to the maps provide to the Tribunal by both the government and native title parties.
[18] The native title party also relies upon the Land Claim Report extracts as evidence of foraging activities. The evidential value of the extracts referred to is not substantial in as much as the licence area is only partially within the area that was subject to the Land Claim and the findings were made on the basis of evidence given over 18 years ago. However, even accepting that the Land Claim findings which were made then are relevant to the present issue, the findings only confirm responsibilities and entitlement to forage in respect of that land found to exist at that time. However, what section 237(a) requires is evidence on the basis of which the Tribunal can conclude that at the present time the objectors actually conduct such activities on the proposed tenement. The findings of the Land Claim Report taken at their highest cannot provide such a basis in circumstances where there is insufficient primary evidence of relevant activities being conducted currently on the tenement by the objectors: see William Risk and Kathleen Mary Mill-McGinness/Corporate Developments Ltd/Northern Territory DO01/77, unreported, Member Sosso, 15 April 2002 at [35]-[38].
[19] The facts relating to the social and community activities likely to be interfered with by the grant of the tenement were peculiarly within the knowledge of the native title party and the existence of such evidence was in fact contended for in its submissions. However, the native title party has failed to produce evidence of those contentions and although there is no evidential onus to be applied, taking the commonsense approach to evidence and applying the test of direct interference explained by Justice French in Smith v Western Australia[2001]FCA 19 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 legal 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 similar contentions in this matter. 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 areas or 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 areas or sites must be “capable of identification” and the nature of their 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 and that, absent documentary evidence, such as the Sacred Sites records, evidence of location and identification will also be peculiarly within the knowledge of the native title party so that failure to produce such evidence may lead to the drawing of an unfavourable inference on the issue taking the common sense approach to evidence: see Carr J. in Ward v. Western Australia(1996) 69 FCR 208 at [217].
[22] The evidence as to such sites produced by the native title party and relied upon its contentions on [4.5.1]-[4.5.5] and [4.8.3]-[4.8.5] of the Land Claim Report respectively.
[23] The native title party also relies upon the AAPA sites information and map which indicates that on the proposed tenement there are no recorded sites on the area of the proposed tenement although Carrara Waterhole and Border Waterhole, Sites 6460-5 and 6460-6 are close to its boundaries.
[24] The native title party also relies upon the affidavit of Jeffrey Stead who deposes to his belief that it is unlikely that the AAPA Register for any particular area will be accurate and complete for all sites of areas of significance within it. Mr Stead also gave oral evidence at the hearing on 3 December 2001. I refer to my analysis of Mr Stead’s evidence in Roy Dixon/Plenty River Corp. Ltd/Northern Territory, DO 01/51 at [24-25].
[25] In its Contentions at [44]-[46], the government party contends “that the grant is not likely to interfere with any areas or sites of particular significance….for the following reasons:
“(b) any such sites have the statutory protections offered by the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”). This Act applies to all of the land in the Northern Territory and provides protection for sacred sites as defined in s.3 of the Aboriginal Land Rights Act(Northern Territory)Act 1976(Commonwealth)(“the Land Rights Act”). “Sacred Site” is defined in the Land Rights Act as meaning “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition”. An area or site gains the protection of the legislation whether registered or not. Although all sacred sites would not be sites of particular significance, such definition includes any area or site of particular significance in accordance with the objector’s traditions. The protections include:
(i) Section 33 of the Sacred Sites Act provides that a person (which definition includes bodies corporate) shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the Act or the Land Rights Act. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(ii) Section 34 of the Sacred Sites Act provides that a person shall not carry out work on or use a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(iii) Section 35 of the Sacred Sites Act provides that a person shall not desecrate a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(iv) Section 37 of the Sacred Sites Act provides that a person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister’s Certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(c) Section 69 of the Land Rights Act also makes it a criminal offence to enter or remain on land in the Northern Territory that is a sacred site.
(d) Section 24 of the Mining Act relevantly provides that every exploration licence shall, unless expressly waived, varied or suspended in writing by the Minister, be granted subject to the 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.”
(e) The Second Schedule of Conditions includes conditions which specifically reduce the likelihood of interference with sites of particular significance. Conditions 1(b),3,4,12,18 and 20 are referred to as particularly relevant to paragraph 237(b) issues. The compulsory inspection of the Register of Sacred Sites and the mandatory on-site meeting with any native title holders are seen as mechanisms to significantly reduce the likelihood of interference with such sites.
(f) Also the letter of grant of the proposed licence will include endorsements specifically directing the grantee party’s attention to the provisions of the Sacred Sites Act so that, combined with other endorsements and conditions, this militates against reliance on defenses that may be mounted based on an absence of knowledge to offences under the Sacred Sites or Land Rights Acts.(This is stressed in the on-going communications with the grantees.)…….
46. The contextual risk evaluation by the Tribunal need include the following factors:
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 current concurrent lawful activities on the same licence area.”
[26] Further, in its Contentions in Reply the government party says at [22]:
(a) Any sites alleged to be of particular significance need to be “in relation to the land and waters concerned”; (see paragraph 237(b)NTA). It is unclear whether the named sites are such from the affidavit material or the maps provided. The term “in relation to land and waters concerned “ is submitted to mean that the area or site of particular significance must be within the area the subject of the proposed licence or so close as to be directly and physically affected by exploration activities on the land.
(b) These areas or sites need to have “particular significance”, yet evidence which proves up their status of being “of special, or more than ordinary significance to the native title holders in accordance with their traditions”(per the formulation of Carr J in Cheinmora v. Striker (1996) 142 ALR 21 at 34) is lacking other than the site with no name which is described as being on top of Mararabana Hill (in paragraph 5 of the affidavit of Mr Dixon.) However, the assertion that “all areas and sites have particular significance” (in Paragraph 56 of the Objector’s Contentions) places all sites into a single class making them seemingly incapable of having a special or more-than-ordinary significance.
(c) The terms “of particular significance”,“of significance” and “sacred site” are used interchangeably and confusingly so.”
[27]In my view, the evidence does not disclose that there are any sites of particular significance to the native title holders within the meaning of section 237(b). Further, that is not the end of the matter. The Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective, indeed the evidence is to the contrary. Further, I do not find it established before me that the AAPA Sites Register is inaccurate or deficient insofar as it relates to matters relevant to this inquiry or generally. The evidence of Mr Stead did not establish such inaccuracy in any relevant or specific sense in respect of the area covered by the proposed tenement.
[28] In conclusion therefore, in light of the Northern Territory statutory regime for the protection of sacred sites, and applying the presumption of regularity, I find that it is not likely that the any areas or sites of particular significance which may exist on the proposed tenement will be interfered with by the proposed grant.
Section 237(c) - Major Disturbance to land or waters
[29] As to the general legal principles applicable to the proper construction of this section, I concur in and adopt the general legal principles as set out by Member Sosso in Moses Silver at [135-140].
[30] The government party contended at [53]-[60] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party relied on the following legislative provisions:
(a)Section 24(e) Mining Act which prohibits a grantee from carrying out any programme involving substantial disturbance without the prior approval of the Secretary of the Department of Mines and Energy;
(b)Section 23(c) Mining Act which permits a grantee only to extract or remove material for sampling and testing purposes(not productive extraction) and which is reinforced by section 24(b) which makes this a condition of grant;
(c)Section 24(e) Mining Act requires that a grantee party wishing to undertake activities involving substantial disturbance to the surface of the licence area must seek approval pursuant to the section. The grant of the tenement only permits activities associated with exploration;
(d)Section 166(a) Mining Act provides that all exploration licences are granted conditional upon the grantee causing as little disturbance as possible to the environment and complying with written directions to minimize disturbances or to make good any damage and rehabilitate the land;
(e)Section 24(e) Mining Act approvals are subject to compliance with such remedial and activity-specific conditions as are considered appropriate for the protection of the environment;
(f)Conditions 2,7,8,9,12,13,14,15,16,17,18,19 and 20 of the Second Schedule of Conditions pursuant to section 24A Mining Act.
[31] The government party further contended at [61]-[64] that:
The presumption of regularity in this context allows the Tribunal to presume that the discretion by the Secretary will be exercised responsibly within the boundaries of the discretion, including that appropriate remedial conditions will be attached:
(a) Although not defined in the Mining Act, “substantial disturbance” is interpreted, as a matter of administrative practice, to commence with any significant disturbance to the surface of the soil and includes activities such as drilling, access-track clearance and costean/bulk sampling;
(b) Section 24(e) permits effective management of potential disturbances by prohibiting such disturbance without prior written approval, requiring the grantee party to inform the Secretary in advance of the nature and extent of the disturbance activity and to disallow (if necessary) the disturbance or to effectively manage the disturbance and its rehabilitation so that no major disturbance is involved.
(c) Under section 166(2) Mining Act, the remedial conditions attached to the Secretary’s approval under s.24(e) become conditions of grant.
[32] The government party contended in conclusion at [64]:
“Taking into account:
(i)the regulatory scheme which governs the exercise of the rights under the grant;
(ii)the additional statutory checkpoint which seeks to prevent and/or remedy disturbances; and
(iii)the statutory requirement that productive mining activities need proceed through a completely independent future act process than that of exploration licences
the Tribunal will conclude that the grant of the proposed licence does not create rights whose exercise is likely to involve major disturbance to any land or waters concerned..”
[33] The native title party contended at [77] that the potential major disturbance to country included holes left from drilling, track built on country which would damage fauna and flora and promote erosion, damage to watercourses, reducing sustainable water supply and excessive dust.
[34] The native title party in its Contentions in Reply to the contentions of the government and grantee parties contended at [40]-[73]:
(a)Section 24(e)Mining Act only deals with disturbance to surface area and not with other kinds of disturbance;
(b)The full extent of rights accorded to a grantee are found in sections 23(b)-(d);
(c)Section 23(c) may permit substantial extraction or removal amounting to major disturbance;
(d)An exploration licence permits high impact activities e.g. road construction, drilling, sampling, costeaning and camp construction;
(e)The statutory regulatory regime contemplates substantial disturbance with prior approval of the Secretary but the government party did not address how that discretion is exercised;
(f)Rehabilitation does not mean that major disturbance has not occurred or that rehabilitation may itself involve major disturbance.
(g)The presumption of regularity does not extend to enable the Tribunal to rely on some fetter on the Secretary’s discretion
(h)The Second Schedule Conditions were defective. First, they are not enforceable by the Objector. Secondly, several conditions are subject to the approval of the Minister.
Condition 19’s protection is subject to Ministerial discretion and only deals with disturbances to the surface of the soil;
(j)Condition 20’s protection depends upon Ministerial enforcement and native title holders have no right to stop exploration or otherwise prevent or rectify damage.
[35] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[36] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)
[37] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.
[38] There is also before me in this matter evidence relied on by the government party in relation to previous mining activity on the proposed tenement. The government party’s Final Contentions at Attachment E provides a revised schedule which includes a list which shows that there have been seven previous exploration licences granted over the same area dating from 1976, 1983 to 1988, 1990, 1998 and 1999 to 2001.
However, the only ELA’s for which details are available in relation to the activities are;
EL4374
Activity: Stream sediment/gravel sampling involved;
(1) the collection of gravel/sediment sample(40kg) from a suitable trap site within the drainage.
(2) on site screening of the sample to collect a particular size fraction; and,
(3) laboratory processing/analysis of the sample for heavy mineral content.
EL4491
Activity: Stream sediment/gravel sampling.
EL6577
Activity : Stream sediment/gravel sampling.
EL8035
Activity: Stream sediment sampling involved:
(i) the collection of soil sample (5kg) from a suitable trap within the drainage.
(ii) onsite screening of the sample to collect a particular size fraction ;and
(iii) laboratory processing/analysis of the sample for mineral content.
EL8101
Activity: Stream sediment/gravel sampling
Rotary Airblast (RAB’) drilling involved:
(i) preparation of drill site;
(ii) drill to predetermined depth;
(iii) collection of drill sample per metre (10-50 kg);
(iv) onsite screening of the sample to collect a particular size fraction; and
(v) laboratory processing/analysis of the sample for mineral content.
[39] Having concluded like Member Sosso, that the generic material before me “highlights that the Northern Territory has in a place a well advanced, integrated and pro-active legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process”, applying the presumption of regularity and having considered the evidence of previous exploration activity, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to such land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22162 to Minorco Australia Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
J. E. Stuckey-Clarke
Member
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