Don Rory and Roy Dixon for the Garawa People/Northern Territory/Astro Mining NL
[2002] NNTTA 204
•12 September 2002
NATIONAL NATIVE TITLE TRIBUNAL
Don Rory and Roy Dixon for the Garawa People/Northern Territory/Astro Mining NL, [2002] NNTTA 204 (12 September 2002)
Application No.: DO01/107 and DO01/108 (EL 22247)
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: 12 September 2002
Catchwords: Native Title – Future Act – proposed grant of exploration licence – two expedited procedure objection applications lodged in identical terms, relying on identical contentions, evidence and other material – one such objection lodged by native title claim group, the claim of which does not include the proposed ELA land – that objection dismissed under s148(a) of Native Title Act – Enquiry proceeded in respect of remaining objection – observation on the need/for clear identification of exhibits to affidavits – observation on value of material presented found unhelpful in previous Tribunal objection enquiries into the same issues – evidence inadequate to support objection – proposed grant found to attract the expedited procedure.
Legislation: Native Title Act 1993
Mining Act 1980
Aboriginal Land Rights (Northern Territory) Act 1976
Land Rights Act
Northern Territory Aboriginal Sacred Sites 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 [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]
State of Western Australia v Ward and Ors (matter P59/2002) HCA 28 delivered 8 August 2002, at [417] to [425] and [468 sub-paragraph 24]
Derrick Smith/Western Australia/South Coast Metals Pty Ltd (2001 FCA 19) French J at [26] and [27]
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 AWI Administration Services
REASONS FOR DECISION DO01/107 & DO01/108
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 22247 comprising 1588 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, two expedited procedure objection applications, numbered respectively DO01/107 and DO01/108, were lodged with the Tribunal, each objecting to the inclusion in the notice of the said statement in respect of the ELA. The objectors in each case were Roy Dixon on behalf of the Garawa people in respect of native title claim DC01/57 jointly with Don Rory and Roy Dixon also on behalf of the Garawa people in respect of native title claim DC01/32. Each objection objects to the inclusion in the said Section 29 Notice of the statement that the Territory considers the grant to be an act attracting the Expedited Procedure on the grounds that such grant does not meet any of the criteria prescribed by s237(a), (b) and (c) of the Act.
[3] The native title claim DC01/32 does not purport to include the land the subject of the ELA. That land is however expressly included in the land the subject of native title claim DC01/57. Consequently the objections made by Don Rory and Roy Dixon jointly as native title claimants in DO01/32 are without foundation and are dismissed pursuant to s148(a) of the Act, leaving only Roy Dixon on behalf of the Garawa people pursuant to the native title claim DC01/57 as a sole objector in respect of both objections. He is hereafter referred to as the objector. The grounds of objection and other material set out in the form 4 objection documents in respect of each of DO01/107 and DO01/108 are identical, as are the contentions, evidence and other material provided by the objector in respect of each. Each relate to the whole area of the ELA. The reason for this duplication is difficult to understand.
[4] 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.
[5] It is common ground that the ELA is situated on land in part the subject of Perpetual Pastoral Lease 773 (“Seven Emu”), in part Perpetual Pastoral Lease 774 (“Pungalina”), and in part Perpetual Pastoral Lease 1169 (“Calvert Hills”).
Objectors Material
[6] The Objections lodged each allege the existence of several communities of the native title claim groups said to be “in or in the vicinity”, of the ELA, going on to name as such only two, being “Calvert Hills” 35 kms to the south and, “Robinson River” 30-35 kms to the west. They also refer to a place “Bujan”, 25 kms to the north west of the proposed licence area, to the area and waters held by the Yangulinyina Aboriginal Corporation said to lie less than 10kms to the west of the southern part of the licence area, and to the Garawa Aboriginal Land Trust, located on the western boundary of the ELA in its northern section. I assume the unstated allegation is that there are communities at those places. The objections allege that the communities regularly use the area, including that of the ELA, for a variety of cultural and resource use activities including hunting, fishing and gathering of bush tucker, and for seeking material for making artefacts and for ceremonial purposes. They also assert there to be 38 sites “recorded or registered” by the Aboriginal Areas Protection Authority (AAPA) within the ELA area, and other sites in the vicinity.
[7] The material relied upon by the objectors in support of their objections is as follows:
[7.1] (1) Statement of Contentions;
(2) The Garawa/Mugularrangu (Robinson River) Land Claim, dated 14 March 1990;
(3) Affidavits from each of Roy Dixon, Don Rory and Jimmy Pyro;
(4)Document entitled “Rights conferred under an exploration licence”, dated 13 December 2001;
(5)Document entitled “Analysis of legislation dealing with significant areas/sites”, dated 25 March 2002;
(6)Affidavit of Mark Frederick Foy, affirmed 25 March 2002 and annexure MFF entitled “Exploration activities”;
(7) Transcript of the evidence of Mark Fredrick Foy, given 4 December 2001;
(8) Affidavit of Jeffrey John Wilson Stead, affirmed 8 October 2001;
(9)Transcript of the evidence of Jeffrey John Wilson Stead, given 3 December 2001; and
(10) AAPA site information with map.
[7.2]Subsequently the objector lodged additional material described by him as follows:
(1)AAPA site information from ELA 22457;
(2)Transcript evidence from Kybrook Farm on 15 November 2001 (page 28); and
(3)Transcript evidence from site visit on 15 November 2001 (pages 6 to 10).
[8.1] The documents referred to in subparagraphs (4), (5), (7), (8) and (9) in paragraph [7.1] hereof and the document “Exploration activities” annexed to the affidavit of Mark Frederick Foy affirmed 25 March 2002, referred to in paragraph (6) of [7.1] 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. I and other Members of the Tribunal in expedited procedure objection application enquiries have found each such document to be of general interest but of extremely limited (if any) evidentiary value. 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.
[8.2] The materials later produced by the objector and set out in paragraph [7.2] hereof were 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 evidence, my reasons being set out in paragraph [14] of that determination. I find it no more helpful in the present matter.
[9] Set out hereunder are the contents of the respective affidavits of Mr Dixon, Mr Rory and Mr Pyro.
[9.1] Affidavit of Roy Dixon affirmed 22 March 2002
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), and I am the applicant in the Pungalina native title determination application (DC01/57).
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 applications includes the area of ELA 22247. I have seen a map of the area of the ELA. Now produced and shown to me marked “RD22247” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
The ELA is on Calvert Hills, Pungalina, and Seven Emu stations. The Calvert River flows through it. Surprise Creek flows into the Calvert in the ELA area. Calvert Hills station was my father’s uncle’s country. He was Junggayi, and he showed me all the sacred sites there, up the Calvert River.
Hector Anderson, and his mob, are Mingirringgi for the Old Pungalina Station area near the eastern boundary of ELA 22247, where the old road used to go. He is Mingirringgi through his father. He lives in Borroloola. Him and his mob, they might go there for fishing at Old Pungalina. But he got no motor car now. That Shadforth mob from Seven Emu go there.
And same for that Ngalanja area on Seven Emu, it belongs to all the Charlie family, all Sugarbag and Emu, but only the Shadforths go there, they own Seven Emu Station. They are Aboriginal.
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.
My mob, all the young fellas living at Yangulinyina, the community about ten kilometres west of ELA 22247, go hunting all around the southern part of ELA 22247. Surprise Creek goes down there, right through to its junction with the Calvert River, in 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. All my mob from Yangulinyina are always going down there for fishing as far as that junction.
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, West of the ELA.
Because that American fella him own Calvert Hills, he’s a good fella, he used to come down and have a yarn with the 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.
That mob go often. They’re living there in Yangulinyina, they go our hunting and fishing all the time. Young fellas still go, along the Calvert River. They get turtle, bream, sometime barramundi, or they shoot kangaroo, bush turkey, emu. They don’t get goanna, all the cane toads finish up the goanna.
I want the mining company to talk to us first before they start exploration. The community’s got to know first. 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. I’ve got to talk to the mining company for that, all the Barri Barri country.
Barri Barri is Star Dreaming. It is my Dreaming, my father’s father’s Dreaming. 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, Mingirringgi. 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.
You can go down that Barri Barri country. They were mustering that Barri Barri country last year on Calvert Hills. My son was doing that. The Calvert manager told them they 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 makes it look different.
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.
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 22nd day of March 2002)
(Witness Signature)
[9.2] In paragraph 4 of his affidavit Mr Dixon refers to a map of the ELA, said to be produced and shown to him and marked “RD 22247”. No such or any map has been produced with his affidavit. Paragraphs 5 to 8 inclusive of his affidavit provide no evidence of the carrying on of social or community activities of the holders of native title on or in close vicinity to the ELA or of the existence or location of sites of particular significance within the meaning of s237(b) of the Act. The location of “the Old Pungalina Station area” is not identified as being on the ELA. The statement that Hector Anderson and his mob “might” go fishing there does not establish the activity of fishing on the ELA. There is no evidence as to whether the Shadforths referred to in paragraph 6 are members of the native title claim group. At paragraph 9 Mr Dixon alleges that his mob, “the young fellas living at Yangulinyina”, the community about 10 kms west of the ELA 22247, go hunting all around the southern part “of the ELA as far as the junction of Surprise Creek with the Calvert River”. The Calvert River runs through the ELA and extends a considerable distance, both to the south and to the east well beyond its boundaries. Maps produced by other witnesses show the said junction to be within the ELA. It is apparent from paragraphs 9 to 12 of Mr Dixon’s affidavit that his evidence in those paragraphs is hearsay. He gives no evidence of his own fishing or hunting. There is no reason given as to why those who are said to so fish and hunt have not given evidence. In paragraph 13 Mr Dixon speaks of the Barri Barri country and of his desire that the mining company talk to him first before they start exploration as he does not wish to see “anything damaged”. In paragraph 14 he explains that Barri Barri is Star Dreaming and that the Barri Barri do not like damage to the country and are sometimes dangerous. He says “it is alright 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…it’ll be safe if the Junggayi goes with the mining company”. Those two paragraphs suggest that Mr Dixon has no firm objection to the grantee commencing exploration and drilling but is concerned as to the harm which might result to the land and to the grantee unless it talks to him first. In paragraphs 15 and 16 Mr Dixon is apparently referring to the harm that the Barri Barri can do, referring to specific places. There is no identification of those places. He refers to Barri Barri country “on Calvert Hills Station” but does not identify the location of that country. Calvert Hills Station is only partly on the ELA. Paragraph 17 provides no evidence of hunting and fishing on the ELA. The Territory, in its Contentions in reply, at paragraph 62, draws attention to the affidavit evidence of Mr Dixon of 22 March 2002 in matter DO01/106, being an objection application to the grant of ELA 22246 in an area adjacent to the ELA. The contentions draw attention to paragraph 16 of Mr Dixon’s said affidavit in which, having stated that his son and other people go fishing and hunting on the Calvert River, going up Surprise Creek from Yangulinyina and Robinson, fishing “on Bluey Creek right up to Packsaddle, right up to Eagle Yard. When they go ringing on Calvert they go fishing then”, he then says, “they will still go if the mining company is there. They go when they feel like it, dry time”. The Territory’s contention is that that evidence supports the evidence in paragraph 14 of his affidavit in the present matter that “it is alright if the company drills…”, and provides further evidence that the activities pursuant to the grant of the ELA are not likely to cause any interference with the claimed activities of hunting and fishing or associated activities. There is substance in that contention. The places referred to as “Bluey Creek, Packsaddle, and Eagle Yard are not said to be on the ELA and are not identified nor is the location of “Robinson”. Relevantly, Mr Dixon’s affidavit provides hearsay evidence only that the “young fellas” from Yangulinyina go hunting on the southern part of the ELA and fishing on the Calvert River to the junction with Surprise Creek and that they hunt and fish elsewhere on Calvert Hills Station.
[9.3] Affidavit of Don Rory
I, DON RORY of Garawa No. 1, Borroloola in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
I am an applicant in the North Calvert Hills native title determination application (DC01/32), and I am a member of the native title claim group in the Pungalina native title determination application (DC01/57).
I have seen a map of the area of the ELA. Now produced and shown to me marked “DR 22247” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit. The EKA is on the Calvert Hills, Pungalina, and Seven Emu stations. The Calvert River flows through it.
Me and Eileen Rory are Mingirringgi for a number of important sites in ELA 22247.
The mining company has got to come and talk to us first. They might damage the country, the Dreaming country.
The mining company should ask the old people. They might say “No you can’t go in there, you might get hurt”. Like my country, Barri Barri, Star Dreaming, is really dangerous. But we can go with mining company.
Janarra is Barri Barri. They can’t go there, he’s dangerous, that Janarra. That Star, when you see that Star site, that’s Barri Barri.
Weykundi, he’s southwest from Seven Emu homestead, in the Robinson River Land Trust area. There’s a creek there, a sinkhole. It’s the same Dreaming, that Star. Only Junggayi can go to that hole. I can follow that Junggayi. He talks to the country, to that Star, to make it safe for Mingirringgi and others to visit dangerous Dreaming places. Noel Dixon, Roy Dixon’s son, Noel Dixon, is the main Junggayi now for that Barri Barri country. Roy: All the old fella Junggayi been pass away, like Old Raggert.
Kumunjurr is Curlew Dreaming. It’s higher up from Seven Emu Station. The Curlew is called Ngwalili. They’re all Wurdaliya, these places.
Jimmy Pyro knows a lot about Aboriginal sacred sites at the bottom end of Pungalina pastoral lease, near the coast. I have agreed that he should speak as a witness for this country on the bottom end (to the north) of Pungalina station including the area of ELA 22247. Roy Dixon, me and other senior people have decided Pyro is the most knowledgable person with authority to speak for sacred sites.
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 ………. in the Northern)
Territory this ……. day of …………2002)
(Signature) (Witness Signature)
Attached to Mr Rory’s affidavit is the following endorsement signed by the Justice of the Peace witness to his signature. “This affidavit has been first read to Don Rory in his presence, who seems to understand the affidavit and agreed that it is correct, and fixed his signature in the presence of me”.
[9.4] There was lodged with Mr Rory’s affidavit a map endorsed “Map produced for the Northern Land Council”. It purports to show the boundaries of the ELA and has names written on it in ink together with what appears to be an AAPA site number against each name, also in ink. It is not, however, marked “DR 22247” as is said by Mr Rory to be the marking on the map shown to him and is not marked with any similar number. It is not signed by either Mr Rory or the witness to his affidavit, has no exhibit marking and contains nothing to indicate that it is the map referred to in paragraph 2 of the affidavit. Mr Rory speaks of some of the places named in his affidavit being marked on the map. I have difficulty in identifying, from the names appearing in his affidavit, what are the names of places and what are the names of spirits or beings belonging to the Dreaming of which he talks. It is clear, however, from a comparison of the names on the map produced with his affidavit and the names in his affidavit that none of those in his affidavit appear on the map. Nor is it evident from his affidavit that the places or names to which he refers are on the ELA. He does not testify that any thereof are on the ELA. Kumunjurr and Weykundi are not mentioned in the list of sites provided by the AAPA and the Territory contends that they are not on the ELA. Mr Rory’s affidavit provides no evidence to support the objections based on s237(a), (b) or (c) of the Act.
[9.5] Affidavit of Jimmy Pyro affirmed 21 March 2002
I, JIMMY PYRO of Wada Wadala, Borroloola in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
I live at Wada Wadala, in Borroloola.
I have seen a map of the area of the ELA. Now produced and shown to me marked “JP 22247” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit. The ELA is on Calvert Hills, Pungalina, and Seven Emu stations. The Calvert River flows through it.
I know a lot about Aboriginal sacred sites at the bottom end of Pungalina pastoral lease, near the coast. Don Rory and I have agreed that I should speak as a witness for his country on the bottom end (to the north) of Pungalina station including the area of ELA 22247. Roy Dixon, Don Rory and other senior people have decided I am the most knowledgable person with authority to speak for sacred sites. I’m Mambaliya semi-moiety. I am Minirringgi for Mambaliya country. I can speak for that country on the ELA. I can also speak for some Rrumbarriya people are Minirringgi together, like the Walulu (Rainbow/Whirlwind) tradition associated with Kunapipi ceremonies. I talk Garawa and Yanyula language.
I been work all over: Wollogorang, Calvert, Robinson River, Anthony, Brunette and come back Spring Creek. I been work Manangoora when I was young, and Pungalina, that’s where I grew up. I been working there when old George Anderson was manager.
Mining company can have a look at the ELA area. But there are sacred sites on the ELA area. Some places are all right, but some places have got Dreaming, because there’s Young Boys’ song, Kujika, going through there too, belonging to those Dreaming sites. Kujika, we got to follow the mining company down there, and tell them: “well, might be Dreaming there, we’ll have to stop their work”. The company’ll have to be careful, and ask Aboriginal people.
Snake Whirlwind, Walulu, comes through, travelling west from Gululurrina, to the east of ELA 22247. That Walulu Snake keeps going and hits the Calvert River at the place named Barangkuna in the ELA area.
He been pass Warji when he hit Barangkuna. On the Calvert River, Warji is on one side, a long way up, to the south, and Jalmanyina. We used to call it Middle Yard, on the Calvert River. That Walulu Whirlwind been through there. You come into Barangkuna now, on Calvert. It’s right on the Walulu track; and that Sun Dreaming is there at Barangkuna, too. We call him Ngadarra that Sun Dreaming, on the Garawa side.
Then that Walulu goes halfway down the Calvert, and then turns off at Punglaina Creek and goes west, in the ELA area. It goes to Miamina, on that side, on Pungalina Creek and Jaan. He’s Mambaliya country. Then the Whirlwind is coming to Wurdaliya country, to Ngarguna. Whirlwind went all the way along, west. He crossed that Ngarguna Creek, Koolfella Creek, a little way up from that Sugarbag Dreaming, about a mile up.
There is Sugarbag Dreaming at Ngarguna and Mingnyirri.
That Walulu went straight across Ngarguna Creek, and hit that Jakuka Spring in Pungalina, new station. Jakuka is close up to Robinson River Land Trust, on down to Kiyanda, and to another place on that same creek again, Yamarina, just inside the Robinson River Land Trust. Then, on that same creek, he hit that Robinson River. On a place not far from the junction of Kangaroo Creek and Robinson River is Burdalu, on the boundary of ELA 22247 and the Land Trust area. Then, on the main river, the Robinson, he goes to Warndikala, on the boundary between ELA 22247 and the Robinson River Land Trust.
All these are Walulu places; I’m Mingirringgi for them. Don Rory is Junggayi.
The mining company can go there, but they’ve got to come and ask me first. For Walulu, I’m the head boss, Mingirringgi. Don Rory and Gilbert Rory are head Junggayi. We’ve got to see the company first, have a good talk, and see if we can let them go there.
And that Ngalanja and Janarra: they can’t go there because there are Dreamings there. All the creeks there from Janarra have Dreamings: Star and Devil Devil Dreamings, Janarra.
Ngalanja on Seven Emu: that one’s Emu Dreaming, Garna.nganja. It might be a girl one and a boy one travelling together, because they got a lot of little ones too. Those little ones we call wurdidi. They are Wurdaliya skin.
Another place near Ngalanja is Warrurrunguna. It’s a big swamp further up. It’s on the west side from Ngalanja, not far, might be two or three mile out.
Manjurina, it’s Wuyaliya country. It’s right near the main road, at a jump up. It’s still in Don Rory’s country. Noel Dixon is Junggayi. It’s Curlew Dreaming Ngwalili.
Barri Barri and Minajiwungku – Devil Devil, that one – are along that Manjurina Creek now. Another place, Manjalana, is down that creek again. And down from Manjulana, is Jiranjurdi. Another place down from Jiranjurdi, is Banjana. Whitefella name for Banjana is Skeleton Creek. It’s not on Seven Emu homestead side, but on the creek side.
There’s another sites called Lagalaga, north from Manjurina. From Janarra to the north, Kujika comes right down, downstream, back to the sea side, outside the ELA area. Another place there is Mangkurawarana; it’s Wuyalia. Another site right down at the sea, is the Barri Barri site, Star Dreaming, Warnyarnyina. And another place Narmartham marthambiji is on Seven Emu Creek near the sea. That’s the Wuyaliya country, finished from there. Another place on the same creek, at the mouth, is that place Wukunda, at the mouth of Seven Emu Creek.
We don’t go to Seven Emu much now, too far. We just gonna help miner for sacred places. Otherwise, they might have to pay a price to traditional owners and Junggayi.
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 Borroloola in the Northern)
Territory this 21st day of March 2002)
(Signature) (Witness Signature)
Attached to Mr Pyro’s affidavit is an endorsement in identical terms to the endorsement attached to Mr Rory’s affidavit also signed by the same JP as witness to his signature.
[9.6] Mr Pyro, like Mr Dixon and Mr Rory, deposes to a map of the ELA and surrounding areas “now produced and shown” to him marked “JP 22247” and that also marked on it are “some” of the places referred to in his affidavit. The map produced to the Tribunal with his affidavit is identical to that produced with the affidavit of Don Rory, save that it has marked on it, in ink, only one name, “Gumandjum”, with the number (6365-5) and an ink arrow pointing towards a red line running outside the northern boundary of the ELA. The name “Gumandjum” does not appear in Mr Pyro’s affidavit nor in those of either Mr Dixon or Mr Rory. The map is also endorsed “Map produced for the Northern Land Council”. It does not bear the marking “JP 22247” as deposed to by Mr Pyro or any identification marking. It is not signed by Mr Pyro or the witness to his affidavit. There is nothing to identify it as the map referred to in his affidavit and it is apparent from its content that it is not. In paragraph 3 Mr Pyro deposes that he knows a lot about “Aboriginal sacred sites at the bottom end of Pungalina pastoral lease near the coast” and that Mr Rory and himself have agreed that he can speak as a witness for his country on the bottom end (to the north) of Pungalina Station including the area of the ELA. That statement and a similar statement made by Mr Rory at paragraph 9 of his affidavit suggests that Mr Rory’s country may not the country of Mr Pyro. Mr Pyro identifies himself as Mambaliya semi Moiety and that he is Minirringgi for Mambaliya Country. He alleges the existence of sacred sites on the ELA and refers to a number of places, not all on the ELA. Some of the sites he mentions, (but not mentioned by Mr Rory), are marked in ink with an AAPA site identification number on the ELA as shown on the unidentified map produced with Mr Rory’s affidavit referred to earlier herein. This gives rise to a possible inference that the map produced with Mr Rory’s affidavit is a copy of the map which Mr Pyro testifies was produced and shown to him. However, as neither of the maps produced by Mr Rory and Mr Pyro is marked in the manner to which they respectively testify, it cannot be assumed with any certainty that either of them is the map referred to in either affidavit. It is unfortunate that the Northern Land Council, as representative for the objector, has not ensured that the respective affidavits on which the objectors rely conform with established evidentiary practice, so that each exhibit is clearly so identified in writing on it and identified as such by the deponent to the witness, who then signs and dates the identification endorsement at the time of witnessing the affidavit. It is also unfortunate that the affidavits are not so framed that the places named in the respective affidavits are not there specifically also named as being marked on the map. A mere statement that “some” of the places named in an affidavit are marked on a map does not identify, within the affidavit, the location of any of that “some”. The evidence strongly suggests that none of the deponents paid any attention to the maps of which they respectively speak. The names of places mentioned in Mr Pyro’s affidavit which appear on the unidentified map produced with Mr Rory’s affidavit, are set out hereunder. The names of those places also appear on the map of “sites recorded at 13 February 2002”, provided by the AAPA together with their respective locations on the ELA and are as follows, the description given by the AAPA being also shown:
Barungkuna (6364-27): said to be a water hole on the Calvert River;
Waridgi (6364-18): said to be a water hole on a bend in the Calvert River;
Miamina (6364-15): said to be a place at the junction of Pungalina and an unknown creek junction;
Yamarrina (6365-12): said to be a small water hole in Kangaroo Creek near the junction with Robinson River;
Ngalandja (6365-2): said to be a section of Stock Yard Creek and ridges and rock outcrops; and
Djanara (6365-24): said to be a rock shelter and spring. (I have assumed this to be the place “Janarra” referred to by Mr Pyro).
Djamanyina (6364-17): said to be a waterhole near the junction of the Calvert River and an unknown waterhole.
No place, named Mandjurina, or a site number (6365-22) as shown on the unidentified map produced with Mr Rory’s affidavit, appears in the AAPA information or map. The “key” to the map issued by the AAPA of “Sites Recorded at 13 February 2002”, indicates Ngalandja (6365-2) to be a site registered under the Northern Territory Aboriginal Sacred Sites Act. Each of the other sites has a designated status of 10, which, the AAPA information states, indicates that they are sites made known to it from a variety of sources in respect of many of which it has not been able to assess the accuracy of its information. There is no information as to which, if any have been so assessed. Each of those places as named by Mr Pyro (with some differences in spelling) is said by him to be a place associated with either the Dreaming of the Snake Whirlwind (“Walulu”), the Star and Devil Dreamings (“Jannara”) or the Emu Dreaming (“Garnamganja”).
[10] 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”.
[11] 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 witnesses, it is inadmissible and, to that extent I disregard it. I accept the material provided by the AAPA as to the existence on and in the close vicinity of the ELA of the recorded sites and the one registered site there mentioned. It is of some significance however that the evidence of the witnesses for the objector do not indicate knowledge by any of them of sites on the ELA identified in the AAPA map other than those identified by name in their respective affidavits. The inference is that the other sites referred to by the AAPA are not seen by the objector or his witnesses to be of relevant particular significance. Of course, it is not to be assumed that the mere naming of a place or site, or the fact of it being a recorded or registered site, without evidence to establish it to be one of relevant particular significance within the meaning of s237(c) of the Act, establishes it to be such a place or site.
The Territory’s Material
[12] The Territory has produced material (unchallenged) including maps showing prior mining tenements granted and in force from time to time over different portions of the ELA. That information reveals that six Authorities To Prospect were granted over the period April 1963 to October 1971; thereafter exploration licences were granted, eight over the period March 1972 to October 1986, seven of which covered in total all but a relatively a small portion of the ELA (see map A); a further seven over the period January 1991 to March 1994 which in total covered the greater part of the ELA (map B); and a further seven over the period March 1993 to February 1998 over all but two relatively small areas of the ELA (map C). On my reading of the information and maps, the various ELA’s in force from time to time over the period March 1972 to February 1998 covered the whole area of the ELA. Also produced by the Territory is a map marked “D”, which shows the location of previous exploration activities within the boundaries of the ELA and in its near vicinity and another map marked “E” which shows the location and boundaries of existing applications and granted exploration licences, mining tenement authorisations and mining tenements in the vicinity of the ELA. It is obvious from the said material and maps that the land the subject of the ELA has for some years been the subject of intense exploration and mining interests and that the lands surrounding it to the west, south and east is currently the subject of the same interest. It is significant that none of the objector’s witnesses have suggested any interference, direct or indirect, with the carrying on of any community or social activity of the holders of native title, or with areas or sites of relevant particular significance, or disturbance to the land or waters the subject of their native title claim arising out of the past exploration activities on the ELA or from exploration or mining activities in its vicinity. A comparison between the AAPA map of recorded and registered sites provided by the objector and the map provided by the Territory showing the location of previous exploration activity on the ELA (map D) reveals that the majority of such previous exploration activity had been carried on on or in very close vicinity of the location of the majority of sites shown on the AAPA map and, so far as the evidence discloses, without any concern about or suggestion of interference to any such site. Whether recorded or registered, they are each protected by the provisions of the Sacred Sites Act as well as the other legislative provisions which control exploration activities and the inference arises that such protection is effective.
Grantee’s Material
[13] The grantee elected to provide no statement of contentions or evidence, stating that it relies on the contentions and material provided by the Territory.
Conclusions
[14] It is of some relevance to the statements of Mr Dixon, Mr Rory and Mr Pyro to the effect that the grantee should firstly meet with them and obtain permission to go onto the ELA land and to paragraph 65 of the objectors contentions, that in State of Western Australia v Ward and Ors (matter P59/2002) HCA 28 delivered 8 August 2002, at [417] to [425] and [468 subparagrah 24] the High Court found that the grant for pastoral lease in the Northern Territory extinguishes the native title right to be asked for permission to use or have access to land the subject of the pastoral lease because of the inconsistency between the rights conferred on the lease holder by such a lease and the continued existence of that native title right. That such is the case however, in my opinion, has little impact on the issues raised by s237.
[15] Only Mr Ryder has provided evidence (hearsay only) of social or community activities of the holders of native title on the ELA. Those activities are already circumscribed to the extent that they are inconsistent with the exercise of the rights conferred on the respective pastoral lease holders of the land the subject of the ELA. So far as the evidence discloses there has been no interference directly or otherwise with any such activity by reason of previous exploration activities on or in the vicinity of the ELA. The objector contends that there are several roads inside and in the vicinity of the ELA used by members of the claim group to access communities and areas for the purpose of community and social activities. Such roads are open to other public users as well as by the pastoral lease holders, their employees, contractors, service providers and visitors. That list is quite plainly not exhaustive. It is not said how the use of any such road by the grantee in the course of its activities will, in any substantial way, directly interfere with the conduct of the claim group activities and it is difficult to see how any such use is likely to be the proximate cause of any apprehended interference (Derrick Smith/Western Australia/South Coast Metals Pty Ltd (2001 FCA 19) French J at [26] and [27]). I am satisfied that the grant of the ELA is not likely to interfere directly with the carrying on of any of the community or social activities of the native title holders.
[16] It is of significance that the evidence produced by the objector makes no complaint of interference with any relevant area or site of particular significance within the meaning of s237(b) or of major disturbance within the meaning of s237(c) of the Act arising out of previous exploration activities on the ELA. The respective affidavits of Mr Dixon and Mr Rory do not provide evidence of the existence of areas or sites of relevant particular significance on or in the vicinity of the ELA. Nor do they provide any evidence relevant to the issues which arise under s237(c). The affidavit of Mr Pyro alleges the existence of sacred sites on the ELA but suffers from the deficiencies I have earlier mentioned. I would add that his evidence does not give any indication of how any area or site that he mentions may be interfered with by the grant of the ELA or the activities carried out thereunder. With the assistance of the AAPA information I have identified five sites recorded and one site registered under the provisions of the Northern Territory Aboriginal Sacred Sites Act (the Sacred Sites Act) on the ELA each named in his evidence as associated with a Dreaming. I accept those sites to be of relevant particular significance. The AAPA information provides evidence of other recorded sites on the ELA. That however does not lead to an inference that such recorded sites are of relevant particular significance within the meaning of s237(b). I find Mr Pyro’s evidence as to the location of what he refers to as “sacred sites” on or in the vicinity of the ELA to be so unsatisfactory that I do not accept as sites of relevant particular significance likely to be interfered with by the grant of the ELA, sites named by him which I have been unable to identify on the ELA, nor the other recorded sites revealed by the AAPA information. There is no evidence to suggest that the places I accept as of relevant particular significance are likely to be so interfered with. The evidence of past exploration activities on the ELA and the absence of any evidence to suggest interference with sites leads to the contrary conclusion. The situation is however that all recorded or registered sites and sites not registered or recorded which meet the statutory definition of “sacred site” have the protection provided by the Sacred Sites Act which makes it an offence to interfere with them (ss33 to 37). In the absence of evidence to the contrary it is not to be assumed that the grantee, in carrying out exploration activities will or is likely to act in breach of the law or conditions attached to the licence. 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 2224 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. The s24A conditions have direct relevance to the protection of unrecorded sites as well as recorded sites.
I am satisfied on the evidence that there is no real chance or risk that the grant of the ELA is likely to interfere with the areas or sites of particular significance in accordance with their traditions to the holders of native title in relation to the lands or waters concerned.
[17] 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 or 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 and 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, 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 22247 is an act which attracts the expedited procedure.
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The Hon EM Franklyn QC
Deputy President
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