Don Rory and Roy Dixon for the Garawa People/Northern Territory/Astro Mining NL - [2002] NNTTA 211

NATIONAL NATIVE TITLE TRIBUNAL

Don Rory and Roy Dixon for the Garawa People/Northern Territory/Astro Mining NL, [2002] NNTTA 211 (26 September 2002)

Application No.: DO01/106 (EL 22246)

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

DON RORY AND ROY DIXON FOR THE GARAWA PEOPLE (Native Title Party)

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THE NORTHERN TERRITORY OF AUSTRALIA (Government Party)

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ASTRO MINING NL (Grantee Party)

Tribunal:               Deputy President The Hon EM Franklyn QC
Place:  Perth
Date:  26 September 2002

Catchwords: Native Title – Future Act – proposed grant of exploration licence – expedited procedure objection application – objection relying on s237(a), (b) and (c) of the Native Title Act – evidence inadequate to lead to a conclusion of likely interference within meaning of s237(a) and (b) or of likely involvement of major disturbance within the meaning of s237(c) – the act attracts the expedited procedure.

Legislation:       Native Title Act 1993
  Mining Act 1980
Aboriginal Land Rights (Northern Territory) Act 1976
  Land Rights Act
  Mining Management Act 2001
  Mining Amendment Act (44) 2001

Cases: Hazelbane/Northern Territory of Australia/Johnston DO01/40 and DO01/41, 27 March 2002 at [9(c)] to [13], [14] and [16]
Riley and Foster/Northern Territory of Australia/Johnston and Sakurai DO01/70 and DO01/71, 17 April 2002 at [10], [17] and [19]

Rory and Dixon/Northern Territory of Australia/Astro Mining NL DO01/110 and DO01/111, 10 May 2002 at [12] and [13]
Archie Allen and others/Northern Territory of Australia/Scriven DO01/75, 22 July 2002 at [12]
               Rory and Dixon/Northern Territory of Australia/Astro Mining NL DO01/107 and DO01/108, at [16]
               Moses Silver and Others/Northern Territory of Australia/Ashton Exploration DO01/13, 1 February 2002
               Dann v Western Australia (1997) 74 FCR 391:144 ALR 1

Government Party Representative: Mr Daniel Lavery of Solicitor for the Northern Territory

Native Title Party Representative: Angus Frith counsel representing Mark Rumler for the Northern Land Council

Grantee Party Representative: Lisa Bowyer of Administration Services

REASONS FOR DECISION DO01/106

Background

[1] On 27 June 2001 the Northern Territory (the Territory) issued a notice under Section 29 of the Native Title Act 1993 (Cwlth) (“the Act”) that it proposed to grant to Astro Mining NL (“the grantee”) exploration licence 22246 comprising 1037 sq km, the notice containing the statement that the Territory considered the grant to attract the Expedited Procedure. The proposed licence and the land the subject thereof is hereafter referred to as “the ELA”.

[2] On 29 October 2001, expedited procedure objection application (DO01/106) was lodged with the Tribunal by Don Rory and Roy Dixon on behalf of the Garawa People, the registered Native Title Claimants in respect of the ELA (Land Claim DC01/32 registered as from 7 June 2001) (the objectors), objecting to the inclusion in the notice of the said statement on the grounds that the proposed grant does not meet any of the criteria prescribed by s237(a), (b) and (c) of the Act.

[3] I am satisfied that the issues raised by the objections can be adequately determined on the material before the Tribunal and in the absence of the parties.

[4] It is common ground that the ELA is situated on land in part the subject of Perpetual Pastoral Lease 774 (“Pungalina”), and in part Perpetual Pastoral Lease 1169 (“Calvert Hills”).

Objectors Material

[5] The objection asserts the existence of several communities of the native title claim group said to be “in or in the vicinity” of the ELA, pointing out that the ELA completely surrounds the land and waters held by the “Yangulinyina Aboriginal Corporation” and naming “The Community of Robinson River” some 15 kms to the west, “The Garawa Aboriginal Land Trust” abutting the whole of the western boundary of the ELA, “Mimina” approximately 35 kms to the west, “Bujan” 45 kms to the north-west, “Doolgarina” 60 kms to the north-west and “Calvert Hills Community” approximately 12 kms to the north-west. It also refers to “several” roads in the vicinity said to be used by members of the claim group, naming only the Wollogorang Road said to cross the ELA from the north-west to the south-east, (more properly described as “from west to east in a relatively slight south-easterly direction), and “tracks to and beyond Yangulinyina”, said to run south from that road within the ELA and on to the Calvert Hills Outstation. It refers also to several water bodies and other areas said to be of environmental significance in and around the ELA. It names Simpson Creek said to run into the Yangulinyina area and Bluey Creek said to run across the south-east corner of the ELA to join the Calvert River some 9 kms to the east. It alleges there to be one recorded or registered site on the ELA, numerous sites along the Robinson and Calvert Rivers and their tributaries within 15.25 kms of the ELA and others to the north and north-west, that there are over 50 recorded sites and many others within or in close proximity to the ELA and that it is likely that there are more. It refers to the likelihood of major disturbance to the land and water bodies within the ELA and the likelihood of environmental impact beyond the ELA downstream on Surprise Creek, Bluey Creek and the Calvert River.

[6] The material relied upon by the objectors in support of the objection is as follows:

[6.1] Material lodged 27 March 2002

(1) Statement of Contentions;
(2)The Garawa/Mugularrangu (Robinson River) Land Claim, dated 14 March 1990;

(3) Affidavits of Roy Dixon, affirmed 22 March 2002;
(4)Document entitled “Rights conferred under an exploration licence”, dated 13 December 2001, in the nature of contentions;
(5)Document entitled “Analysis of legislation dealing with significant areas/sites”, dated 25 March 2002, in the nature of contentions;
(6)Affidavit of Mark Frederick Foy, affirmed 25 March 2002 and annexure MFF entitled “Exploration activities”, ruled upon as a statement of expert opinion;
(7)Transcript of the evidence of Mark Fredrick Foy, given 4 December 2001, ruled on as a statement of expert opinion;
(8)Affidavit of Jeffrey John Wilson Stead, affirmed 8 October 2001, ruled on as a statement of expert opinion;
(9)Transcript of the evidence of Jeffrey John Wilson Stead, given 3 December 2001, ruled on as a statement of expert opinion;

(10) AAPA site information with map.
[6.2]Material lodged 15 April 2002 described as follows:
(1)AAPA site information from ELA 22457.
(2)Transcript evidence from Kybrook Farm on 15 November 2001 (page 28).
(3)Transcript evidence from Site Visit on 15 November 2001 (pages 6 to 10).

[7.1] The documents referred to in subparagraphs (4), (5), (7), (8) and (9) in paragraph [6.1] hereof and the document “Exploration activities” annexed to the affidavit of Mark Frederick Foy affirmed 25 March 2002 referred to in paragraph (6) of [6.1], have been produced in evidence in expedited procedure objection applications by the Northern Land Council acting as representative of objectors on many occasions in the past. The transcript of evidence of Mr Foy and Mr Stead refers to evidence given by them respectively in objection applications numbered DO01/11, DO01/12, DO01/17, DO01/18, and DO01/43, heard jointly on 3 and 4 December 2001. The document “Exploration activities” was also produced at that hearing as an exhibit to an affidavit of Mr Foy affirmed 24 October 2001. The affidavit affirmed 25 March 2002 to which that document is annexed in these proceedings does not differ in any relevant or material sense from that of 24 October 2001. The content of the document “Exploration activities” annexed to that affidavit is either identical with or in no relevant sense different from that annexed to the affidavit of 24 October 2001. Whilst accepting the expertise of both Mr Foy and Mr Stead, I and other Members of the Tribunal in various expedited procedure objection application enquiries have found each such document to be of general interest but of extremely limited (if any) evidentiary value in the particular inquiry. I have set out my reasons for so finding in “Hazelbane/Northern Territory of Australia/Johnston DO01/40 and DO01/41, 27 March 2002 at [9(c)] to [16]; Riley and Foster/Northern Territory of Australia/Johnston and Sakurai DO01/70 and DO01/71, 17 April 2002 at [10]; Rory and Dixon/Northern Territory of Australia/Astro Mining NL DO01/110 and DO01/111, 10 May 2002 at [12] and [13]; Archie Allen and others/Northern Territory of Australia/Scriven DO01/75, 22 July 2002 at [12]”. I find that to be the case also in the present enquiry. In short the said evidence and material do not address the issues raised by s237(a), (b), (c) of the Act with sufficient particularity to lead to a conclusion in respect of any thereof one way or another. Further, the evidence and material in each case is of a general nature and does not take into account the overall effect of the Mining Management Act 2001 and the Mining Act 1980 as amended by the Mining Amendment Act (44) 2001 on the legislative regime which controls the exercise of rights under an exploration licence. The objectors contentions however address the effect of those amendments.

[7.2] The material later produced by the objector and set out in paragraph [6.2] hereof was also relied on as evidence in Rory and Dixon/Northern Territory of Australia/Astro Mining NL DO01/110 and DO01/111 referred to above. In that matter I found that material unhelpful as relevant evidence, my reasons being set out in paragraph [14] of that determination. I find it no more helpful in the present matter.

[8] Set out hereunder are the contents of the said affidavit of Mr Dixon.

I, ROY DIXON of 4 Callistemon Drive, Katherine in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:

I live in Katherine. I am here for the dialysis.
I am an applicant in the North Calvert Hills native title determination application (DC01/32). I am a Garawa person. I belong to Wuyaliya skin, or semi-moiety. Garawa people say that people, sites, Dreamings, country, animals and plants all belong to one of four skins, or semi-moieties: Wuyaliya, Wurdaliya, Rrumbariya and Mambaliya. I’m Mingirringgi, traditional owner, for Wuyaliya Dreamings.
The area of the application includes the area of ELA 22246. I have seen a map of the area of the ELA. Now produced and shown to me marked “RD 22246” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
ELA 22246 covers an area of Garawa country on the eastern side of the Robinson River Land Trust. It includes parts of Calvert Hills and Pungalina Stations. Calvert Hills was my father’s uncle’s country. He was Junggayi, and he showed me all the sacred sites there, up the Calvert River.
I am Mingirringgi for Surprise Creek extending northeast from the Robinson River Land Trust area to the Yangulinyina community, right in the middle of the ELA. I can sign this affidavit, because I’m Mingirringgi for all the Barri Barri Dreaming there, and I know all the country there.
I been grow up on Calvert Hills. I been start working from about 10 years. I was working at Calvert Hills and Robinson River, both places. We used to walk the cattle all the way over to Queensland. I been working at Mallapunyah, and Kiana. I been grow up on the top of those ranges, from Calvert to Kiana. I used to walk along those hills with my father and mother, through Calvert, Kiana, Spring Creek, and Robinson River.
I want the mining company to talk to us first before they start exploration. There is an Aboriginal community in the middle of the southern part of this ELA 22246. It’s called Yangulinyina. It’s on Surprise Creek. That’s my country, Wuyaliya. All my family are living there. They’re living at Robinson too sometimes. The mining company can’t go there. The community’s got to know first.
That Yangulinyina community, that’s all that area for we. That’s called Bidida, that Yangulinyina area. That’s all Barri Barri there. I am Mingirringgi, owner, for it. But we got Junggayi living there; William Davey is the oldest one. The company can go there, as long as they show me where they want to go. I can tell them which place they can go, and where they can’t go.
Barri Barri is Star Dreaming. It is my Dreaming, my father’s father’s Dreaming. It runs from Packsaddle to Surprise Creek. Southern Cross Creek is Barri Barri. That one means you can get lost easily. He’s a dangerous one; Barri Barri don’t like damage to country. They kill people. Sometimes they are dangerous and sometimes not. It is all right if the company drills, but they’ll come out and have a look. Sometimes they don’t like strangers. It is safe if the Junggayi is there. I am the owner for Barri Barri. I am safe if my Junggayi is there. It’ll be safe if the Junggayi goes with the mining company. The Junggayi has got to have the song; he’ll sing it, and stop the Barri Barri moving around.
About twenty years ago, some place downstream from the Bluey junction with Packsaddle Creek, the manager from Calvert lit a fire. One spirit threw him down in the fire, burned his horse.
About five years ago, they got a sample just up from Warridilina, a rock hole right on the creek on Calvert Hills. I went with them to take a sample. They left the chopper right at the rock hole. I told them they were all right to take a sample at the rock hole, as long as they didn’t put gelignite there.
You can go down that Barri Barri country. They were mustering that country last year. My son was doing that. The Calvert manager told them there were Robinson River cattle on Calvert. They had to take the Junggayi. They took William Davey. He is the main Junggayi. Women and kids have not gone mustering. Barri Barri will make them sick and take the kids away. A woman can’t go by herself; she will get lost straight away. The Barri Barri changes the country and make it look different.
All the young fellas stay there at Yangulinyina; they’re all Mingirringgi. There’s William Kidd, Darren Kidd, Ricky Kidd, Angus Kidd; they all live there now. And Mary-Anne Kidd, and Leanne Kidd. They all stay there at Yangulinyina. That’s where that old road goes across Surprise Creek. Where they stay there, that’s where the Frilled Lizard been dance, Gunbi, that Dreaming Lizard. He been bring the young men from Jumbarana, he take them down to Yangulinyina, and gettim more man for dance.
The mining company can come up and ask us first before they go working near Yangulinyina, because top end side, up from the community, is a bit no good; they might get sick. The spirit, he’ll come like a wind and kill them. They’re welcome if they ask first.
That mob living at Yangulinyina go hunting all around the community. Surprise Creek goes down there, right through to its junction with the Calvert River, east of the ELA. The country is a bit rough. People sometimes go in from the west from the Wollogorang Road, along that track to New Pungalina Station and in to Surprise Creek. They go as far as that junction with the Calvert.
My son would have gone fishing there while he was mustering last year. The Barri Barri knows them well from a kid. People go fishing and hunting on the Calvert. They go up Surprise Creek from Yangulinyina, and from Robinson. They go fishing on Bluey Creek right up to Packsaddle, right up to Eagle Yard. When they go ringing on Calvert, they go fishing then. They will still go if the mining company is there. They go when they feel like, dry time.
They use that Wollogorang Road all the time too. They go to Wollogorang store and get their rations there. When they go there, they pull up on the way and go hunting, and go fishing along the Calvert there, on Calvert Hills station, on ELA 10046.
Because that American fella him own Calvert Hills, he’s a good fella, he used to come down and have a yarn with that old fella Billy Kidd when he was still alive. He was good friends with that fella. I think he still owns it. That old fella when he owned Calvert Hills, he used to tell them to go fishing anywhere they wanted. Young fellas still go, along the Calvert River. They get turtle, bream, sometimes barramundi, or they shoot kangaroo, bush turkey, emu. They don’t get goanna, all the can toads finish up the goanna.
It’s better if they know before the mining company goes anywhere working. All the young fellas there, at Yangulinyina, the company should let them know first; but they got to talk to me first, because I’m the boss for that mob. I show people around my country. I don’t want to see anything damaged.
Some young Aboriginal fellas working on Calvert Hills station are from Robinson River, including Larry Woolsen, and young Jimmy Jackson and Malduwan Noble. On their weekends they go fishing and hunting through Calvert Hills station. They go Tanners Yard way, in the southern part of the ELA 22246, along that track there, because the country is too rough the other way, along to Bluey Waterhole. They only chopper muster that way.

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.

AFFIRMED at Katherine in the Northern) (Signature)

Territory this 22^nd day of March 2002)

(Witness Signature)

[9] Produced with Mr Dixon’s affidavit is a map endorsed with the statement (inter alia) “Map produced by the Northern Land Council”. It is signed by Roy Dixon and the Commissioner for Oaths before whom he affirmed the affidavit, the date 22 March 2002 being written on it. It does not however bear the marking “RD 22246” said to be present on the map identified by him in paragraph 3 of his affidavit. It shows the boundaries of the ELA. Within those boundaries there is marked in black the boundaries of an area of 1 km sq (applying the scale on the map) (the “Corporate Land”) overprinted with the wording “Yangulinyina Aboriginal Corporation” and the word “Yangalinyina” marking the location of the Yangulinyina Community on about the northern boundary of that area on the Wollogorang road. Also in black the map indicates the location of the Wollogorang road, Bluey Creek, the Calvert River and the Robinson River in relation to the ELA. It also shows in black the words “Garawa Aboriginal Land Trust” to the west of the lower portion of the ELA, the words “Calvert Hills” to the south of the ELA and the word “Pungalina” north of the ELA. Printed on it in blue ink are the word and numbers “Yangulinia (6364.5)” and an arrow pointing to the southern boundary of the corporate land. The AAPA map and information provided by the objector reveals there to be a recorded site, number 6364-5, named “Yangulinia” within the south-west corner of the corporate land, described as “Waterhole located on the south-west side of Robinson River stn (sic) road ans (sic) Surprise Creek Crossing. I take “stn” to be an abbreviation of “Station”. Mr Dixon does not depose to having written on the map of which he deposes, saying only that “marked on it are some of the places referred to in this affidavit”. I have already referred to the places marked on the map produced. It is not known from the affidavit what are the places marked on the map marked “RD 22246”. The affidavit does not establish the map produced to the Tribunal with the affidavit to be that referred to by Mr Dixon it was not physically annexed or attached to the affidavit.

[10] The map provided by the AAPA has marked on it the location of recorded sites in the area it covers. It reveals only the one recorded site referred to above within the external boundaries of the ELA, a number of sites on and in the vicinity of the Robinson River (which river appears from the map to be about 14 kms from the closest point of the western boundary of the ELA) and a number on and in the vicinity of the Calvert River to the east of the ELA the closest of which is more than 5 kms away. There are no sites shown on the portion of the Calvert River which runs through the ELA.

[11] Paragraph 5 of Mr Dixon’s affidavit refers to Surprise Creek extending north-east of the Robinson River Land Trust to the Yangulinyina community. The location of the Robinson River Land Trust is not provided on any map in evidence. However, from the map produced with Mr Dixon’s affidavit and the AAPA map, Surprise Creek can be located as running north-east from the Garawa Aboriginal Land Trust to the recorded site (6364-5) on the Yangulinyina Corporate Land and, within that land, to the Yangulinyina community site. It then continues in a north-east direction to join with the Calvert River to the east of the ELA. In paragraph 5 of his affidavit Mr Dixon deposes that he is “Mingirringgi for all of the Barri Barri Dreaming there”. The word “there” so used, in its context, suggests that he deposes to be Mingirringgi for Surprise Creek to and including the Corporate Land, being also Mingirringgi for the Barri Barri Dreaming in respect of the Corporate Land. Paragraphs 1 to 5 of his affidavit provide no evidence relevant to the issues raised by s237(a), (b) and (c) of the Act. Paragraphs 7 to 9 relate only to the Yangulinyina Corporate Land. Paragraph 9 is concerned with the Barri Barri Dreaming and speaks of it “running from Packsaddle to Surprise Creek” and that Southern Cross Creek is Barri Barri. Packsaddle Creek can be located on the map produced with Mr Dixon’s affidavit and that produced by the AAPA as located to the south-west of the ELA. Southern Cross Creek can be located on the AAPA map to enter the ELA from the south-west then following an elliptical course to leave the ELA and join Surprise Creek to its west. The junction of Bluey and Packsaddle Creeks is not shown on either of those maps but appears to be off the maps to the south-west of the ELA. Warridila, referred to in paragraph 10, is not mentioned in the AAPA information and I cannot locate it on any map in evidence. Paragraph 9 to 13 inclusive are related to the Barri Barri Dreaming but do not refer to places associated within the ELA other than Yangulinyina. Nor does the affidavit indicate, other than by the reference in paragraph 13 to the Lizard dance, what community or social activity or sites of significance are associated with the Dreaming. Paragraph 15 of the affidavit provides evidence of hunting all around the community and along Surprise Creek to the Calvert River. It is couched in terms of an explanation by reference to a map. I cannot identify “the track to New Pungalina Station and into Surprise Creek” referred to by any map in evidence. Paragraph 16 provides evidence of fishing but is a mixture of conjecture - “my son would have gone fishing there” – and/or hearsay. It is quite probable that people go fishing on the Calvert and on Bluey Creek right up to Packsaddle right up to Eagle Yard as deposed and go hunting on the Calvert. The maps reveal the Calvert to run in a general north-south direction to the east of the ELA, Packsaddle to be to the south-west of the ELA and to run generally in a north-west/south-east direction, Bluey Creek to run from the south-west through the ELA across its southern boundary towards its south-east corner, and then to the north-east to cross its eastern boundary towards its south-eastern corner and on to join Calvert Creek approximately 9 kms outside the ELA. Eagle Yard is not located on the maps. The evidence suggests that fishing and hunting is carried on generally at places away from the ELA. The statement in paragraph 16 that [the people] “will still go [fishing and hunting] if the mining company is there. They go when they feel like it dry time”, strongly suggests that the mining company activities are not thought likely to interfere with their hunting and fishing. Paragraph 17 refers to the use of Wollerong road by the Yangulinyina people to go to the store and go hunting and fishing on the way. It again appears to be hearsay evidence but, accepting it to be correct, refers only to such hunting and fishing as being carried on on places other than the ELA and specifically on ELA 10046. The material provided by the Territory (to which I subsequently refer) reveals that ELA 10046 is the subject of an application for a substitute licence under s31(A) of the Mining Act (NT) in substitution for existing exploration licences. There is no suggestion that the activities of hunting and fishing on the land the subject of that ELA or any sites thereon have been in any way interfered with by the exploration activities carried out thereon under such existing licences. Paragraphs 18 to 20 lead to the inference that the fishing and hunting of which Mr Dixon speaks is carried out all over Calvert Hills Station and particularly along the Calvert Hill River. There is no evidence of any apprehended interference in terms of either s237(a) or (b), and only a general reference of damage to the country – “Barri Barri don’t like damage to the Country,” followed by the statement that “it is all right if the company drills …” (paragraph 9) and “I don’t want to see anything damaged” (paragraph 19).

[12] In support of his contentions and objection the objector also relies on the March 1990 Garawa/Mugularrangu (Robinson River) Land Claim Report of the Aboriginal Land Commission under the Aboriginal Land Rights (Northern Territory) Act 1976 (The Land Rights Act) and suggests that the same be adopted by the Tribunal. I am not prepared to adopt that report or its findings. It is the result of an inquiry conducted some 12 years ago under another Act in respect of claims of traditional ownership of other land, which, it is conceded in the contentions and is apparent from that report, is quite different to the concept of native title under the Act. The commission report is concerned with the land claims of different claim groups, each claiming to be the traditional aboriginal land owners of different parts (estates) of the overall land claim area. As the report itself makes clear at paragraphs [4.7] to [4.13] inclusive, it is the result of an inquiry to firstly ascertain whether the claimant Aborigines or any other Aborigines are the traditional owners within the meaning of the Land Rights Act of the claimed land and, if there are traditional owners, to make recommendations for the grant of the claimed land or part of it to a trust for “relevant Aborigines” as defined in s11 (4) of the Land Rights Act. The making of such recommendations involved the exercise by the Commissioner of discretion as to the strength or otherwise of the traditional attachment of the various claimants to the land claimed. Under the Land Rights Act the expression “traditional owners” means a local descent group of Aboriginals who, (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and, (b) are entitled by Aboriginal tradition to forage as of right over that land;…”. It is of no assistance in determining the issues raised by s237(a), (b) and (c). In my opinion the issues involved in an expedited procedure objection application are so different from those involved in Land Claim Reports that such Reports are of no value in, and indeed if relied upon, may distort the validity of the determination of an expedited procedure application. It is of interest to note that in paragraph [4.6] of the Report the Commissioner said “all traditional land claims under the Act are of necessity made within the legislative framework of the Act and there can be no certainty that the premises upon which the legislation was drafted are necessarily valid in respect of any particular claimant group”.

[13] To the extent that the objector’s statement of contentions contains factual statements relating to the communal or social activities of the native title holders which are not supported by evidence, and statements purporting to explain or provide facts expanding the affidavit evidence of the witness, it is inadmissible and, to that extent I disregard it.

The Territory’s Material

[14.1] The Territory has provided (inter alia) a map of the ELA and areas surrounding it showing the tenure of those areas, sacred sites on them and areas the subject of current applications for exploration licences (Auslig Map Sheet 6364). It reveals the whole of the northern, eastern and southern boundaries of the ELA to be common with areas also the subject of current applications for exploration licences all of which are on pastoral lease land, and its western boundary to be common with the eastern boundary of the freehold land of the Garawa Aboriginal Land Trust, portions of which are also the subject of applications for exploration licences. It is relevant that on 12 September 2002, ELA 22247, which abuts portion of the eastern boundary of the ELA, was found to attract the expedited procedure. The same map also shows the recorded sacred site on the freehold corporate land of the Yangulinyina Aboriginal Corporation to be within the boundaries of that land and that it is the only recorded or registered site within the external boundaries of the ELA. There is no recorded or registered site on the ELA and the nearest such site outside its boundaries is approximately 5 kms away. I note that the road described by Mr Dixon and shown on the map produced with his affidavit as Wollogorang Road is shown on the Territory’s maps as Carpentaria Highway. Nothing however turns on that.

[14.2] The Territory’s information reveals various portions of the ELA to have been the subject of mining tenements in the past as follows: over the period April 1962 to April 1972, eight authorities to prospect; over the period March 1964 to March 1987, six exploration licences the same together covering all but a very small portion of the ELA; over the period June 1988 to October 1997 five exploration licences, the same together covering by far the larger part of the ELA. When considered together, the maps reveal the whole of the land the subject of the ELA to have been the subject of exploration licences over the period March 1964 to October 1997. (See Territory maps “A” and “B”). The Territory’s material also identifies on a map (Territory Map “C”) the location of exploration activity over those years on the ELA and outside it in close vicinity of its southern boundary. By another map and schedule (Map “E”) the Territory identifies, in the areas surrounding the ELA in all directions and extending to the south-east, south, south-west for distances in excess of 20 kms, current applications for exploration licences, granted exploration licences including substitute licences, mining tenement applications and granted mining tenements and authorities.

[14.3] It is clear from that information that the area of the ELA has been the subject of extensive exploration interest and activity in the fairly recent past and that it, and an extensive area surrounding it, is currently the subject of extensive exploration interest, containing some granted mining leases and exploration licences, the great majority of such area, however, being the subject of applications for exploration licences.

[15] The grantee elected not to provide contentions or evidence and to rely on those produced by the Territory.

Conclusion

[16] It is of significance that, despite the past exploration activity on the ELA, there is no suggestion in the evidence of any interference, direct or otherwise, with the carrying on of any community or social activity of the holders of native title in relation to the land or waters of the ELA. Nor is there any suggestion of interference with the recorded site or any other site on the “Corporate Land” or any registered, recorded or other site on or in the vicinity of the ELA. The Territory’s “Map C” which shows previous exploration activity on and to the south of the ELA, read in association with the AAPA map, reveals some of such activity on the ELA to have occurred at a number of places on rivers shown there and on some of the same rivers to the south of the ELA. With the help of the AAPA map produced by the objectors it can be seen that such activity was carried out on Surprise Creek, Bluey Creek, and other unnamed creeks. There is, however no complaint of pollution, past or present, of any river arising out of any such activity or of interference with any site. There is no evidence as to the existence of any site on the ELA.

[17] I find the evidence to be inadequate to lead to a conclusion that the grant of the ELA is likely to interfere directly with the carrying on of the community or social activities of the holders of native title in relation to the land or waters concerned. There is no evidence to suggest that previous exploration activity on or in the vicinity of the ELA has interfered with any such activity in any way. The specific evidence of fishing and hunting relates almost entirely to the conduct of those activities generally on Calvert Hills and places outside the ELA. Mr Dixon does not testify to any apprehended interference and the thrust his evidence generally is that the grantee can operate on the land provided it asks him first. There is no reason to conclude that the grant of the ELA is likely to interfere with any such activities. There is no reason to conclude that the grant of the ELA is likely to interfere with the use by the native title holders of the roads and tracks that pass through the ELA as suggested in the objector’s contentions. There is no suggestion that such has been a result in the past. The Wollogorang Road is, it seems, the Carpentaria Highway and a public road. It is open to be used by all members of the public including the native title holders. The ELA is on pastoral leasehold land and it is a reasonable inference that the operational activities of the leaseholder interferes, to some extent, with the activities of the objector. The nature of the leaseholding leads to the inference that such activities include the movement of livestock, the care and maintenance of fences, mills, watering points and other improvements, the movement of employees, visitors, service providers, maintenance workers and others. The existence of tracks on a pastoral lease is essential for such purposes, generally with the use of vehicles. There seems no reason why the existing tracks to which the objectors refer would be so damaged as to substantially interfere with the objectors use thereof or why, if damaged, they would not be reinstated. Also relevant to the issue is the effect of the legislative regime (referred to subsequently herein) which controls operations under an exploration licence.

[18] There is no evidence of the existence of any site of particular significance within the meaning of s237(b) of the Act on the ELA. The evidence that Mr Dixon is Mingirringgi for at least some of the Surprise River and for the Corporate Land is not evidence that either is a site of particular significance within the meaning of s237(b) but evidence only that they form part of the country related to the Dreamings of which Mr Dixon is Mingirringgi. Nor is his evidence sufficient to give rise to a conclusion that that country or any part of the ELA is an area of relevant particular significance. It is not sufficient to give rise to a conclusion of likelihood of relevant interference to assert (as do the objectors) that it is not known whether a relevant site exists on the ELA but it is likely that it does. Section 237(b) is concerned with the likelihood of interference with a site of relevant particular significance. To apply its terms requires evidence at least of the existence and location of the site and evidence that it is of relevant particular significance. Only then can the issue of likelihood of interference be assessed in the light of the evidence as a whole. There is no evidence before the Tribunal to lead to a conclusion that the grant of the ELA is likely to interfere with any area or site of relevant particular significance.

[19] The evidence produced by the objector makes no complaint and expresses no concern as to the possibility of major disturbance to the land or waters the subject of the ELA or in its vicinity within the meaning of s237(c) of the Act. In any event the legislative regime in force in the Northern Territory provided by the Mining Act 1980 as amended by the Mining Amendment Act 2001 and the Mining Management Act 2001 is directed to the avoidance of major disturbance. In Hazelbane and Others/Northern Territory of Australia/Johnston (DO01/40 and DO01/41 27 March 2002) at paragraphs [13] and [14] I summarised the effect of those Acts and elaborated thereon in Riley and Foster/Northern Territory of Australia /Johnston and Sakurai (DO01/70 and DO01/71 17 April 2002) at paragraphs [18] and [19]. In Rory and Dixon/Northern Territory of Australia/Astro Mining NL (DO01/110 and DO01/111 10 May 2002) I drew attention again to the provisions of those Statutes by reference to my findings and reasoning in the above mentioned passages in Hazelbane and in Riley and Foster and the reasons and findings of Member Sosso in Moses Silver and Others/Northern Territory of Australia/Ashton Exploration (DO01/13 1 February 2002), and again in Archie Allen and Others/Northern Territory Government/Scriven (DO01/75 22 July 2002) at paragraphs [13], [15] and [16] and on 12 September 2002 in Rory and Dixon/Northern Territory of Australia/Astro Mining NL (DO01/107 and DO01/108) at paragraph [16]. It is now not necessary that I do any more than quote [16] as follows from paragraph [16] of DO01/107 and DO01/108 which applies equally to the present inquiry.

“In addition to the protective provisions of the Sacred Sites Act, the Territory relies upon the legislative regime in place in the Northern Territory and in particular the provisions of the Mining Management Act 2001 and its regulations and the Mining Act 1980 as amended by the Mining Amendment Act 2001 as providing protection to sacred sites and sites of relevant particular significance and to the avoidance of major disturbance. Those provisions provide the legislative regime which controls the conduct of exploration mining activities in the Northern Territory. In DO01/40 and DO01/41 at paragraphs [13] and [14], I have summarised the effect of those acts and have elaborated thereon in DO01/70 and DO01/71 at paragraphs [18] and [19]. In DO01/75 [22 July 2002] at [16] I said “I draw attention in particular to the provisions of ss35, 37, 39 of the Mining Management Act; to the conditions set out in s24(b), (e), (j), (k) of the Mining Act directed to the minimisation of disturbance of exploration licence land, of interference with the lawful activities and rights of others and with the protection of, and prevention of interference with, Aboriginal sites and objects. I refer also to the conditions approved by the Minister under s24A of the Mining Act, a copy of which forms part of the material provided by the government party in these proceedings, and in particular to conditions 1, 2, 3, 4, 12, 17, 18 and 20 thereof, which are directed to ensuring consultation with registered native title claimants prior to commencing exploration activities, to the minimisation of impact on native title rights and interests in the licence area and interference of the nature referred to in s237(a), (b), (c) of the Act. I refer also to s166A of the Mining Act which provides that conditions imposed on a grant relating to land the subject of native title rights and interests may be enforced by the parties as a term of a contract between them; to s166(1A) which requires relevant authorisation before carrying out exploration operations or work involving substantial disturbance and to s171 which makes provision for cancellation of a licence for breach of a condition. I draw attention to the provisions of ss33, 34, 35 and 37 of the Sacred Sites Act which provide penalties for unauthorised entry onto, working on, use or desecration of a sacred site, and for damage or distress to a custodian of a sacred site arising out of failure to comply with the certificate authorising work on or use of land. I also refer to s69 of the Land Rights Act which makes it an offence to enter or remain on an Aboriginal site without lawful authority”. That passage is equally applicable in the present case. The material provided by the Territory includes a statement of the conditions to apply to the licence under s24A of the Mining Act, draws attention to the statutory conditions set out in ss24 and 166 of that Act and provides material said to be routinely made available to grantees identifying their obligation, and including brochures setting out a Code of Conduct for mineral exploration and environmental guidelines.”

[20] The meaning to be given to the expression “major disturbance” as used in that sub-section and the matters to be taken into account in assessing the degree of disturbance is set out in the judgements of the Full Court of the Federal Court in Dann v Western Australia (1997) 74 FCR 391:144 ALR1. Applying those judgements and having regard to the legislative regime to which I have referred above, to the controls it imposes on the grantee as to the conduct of its activities, to the fact that it is not to be assumed that the grantee will act in contravention of the law or in breach of the conditions which the evidence reveals will apply to the licence, to the fact that there is no evidence which suggests that major disturbance to the ELA land has been occasioned by any previous exploration activity thereon or that the likelihood thereof, if the ELA is granted, is a matter of concern to the objectors, I find there to be no real risk of major disturbance within the meaning of s237(c) of the Act arising out of the grant of the ELA.

Determination

The determination of the Tribunal is that the grant of Exploration Licence 22246 is an act which attracts the expedited procedure.

……………………………………….

The Hon EM Franklyn QC

Deputy President