Don Rory and Roy Dixon for the Marawa People (DO01/110) and Jack Hogan for the Waanyi People (DO01/111)/Northern Territory/Astro Mining NL

[2002] NNTTA 86

NATIONAL NATIVE TITLE TRIBUNAL

Don Rory and Roy Dixon for the Marawa People (DO01/110) and Jack Hogan for the Waanyi People (DO01/111)/Northern Territory/Astro Mining NL, [2002] NNTTA 86 (10 May 2002)

Application No.:             DO01/110 and DO01/111 (EL 22252)

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 Marawa People (DO01/110) and Jack Hogan for the Waanyi People (DO01/111)  (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:                 10 May 2002

Catchwords: Native Title – Future Act – proposed grant of one exploration licence – two expedited procedure objection applications – whether grant likely to have any of the consequences specified in s 237 of the Native Title Act (1993) – evidence does not support the objections – observation as to meaning of “particular significance” as used in s 237(b) - determination that grant attracts the expedited procedure.

Legislation:       Native Title Act 1993; Mining Act (NT); Aboriginal Land Rights (Northern Territory) Act 1976; NT Aboriginal Sacred Sites Act; Mining Management Act (NT); Mining Management Act (NT) No. 43 of 2001 and Mining Amendment Act (NT) No. 44 (2001).

Cases:  Hazelbane and Others/Northern Territory/Johnston
DO01/40 and DO01/41: 28 March 2002
Dann v Western Australia (1997) 74 FCR 391:144 ALR 1 and
Moses Silver and Ors/Ashton Exploration Australia Pty Ltd/Northern Territory
DO01/13: 1 February 2002

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

Native Title Party Representative:      Mark Rumler for the Northern Land Council.

Grantee Party Representative:           Lisa Bowyer of AWI Administration Services.

REASONS FOR FUTURE ACT DETERMINATION

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 22252 comprising 471 sq km, the notice containing the statement that the Territory considered the grant to attract the Expedited Procedure under the Act.  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 (the objections) pursuant to Section 32 (3) of the Act were lodged with the Tribunal, one (DO01/110), by Don Rory and Roy Dixon for the Garawa People, a registered Native Title claim group (DC01/32) in respect of the ELA, and the other, (DO01/111) by Jack Hogan for the Waanyi People, also a registered Native Title claim group (DC01/4) in respect thereof. 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 the such grant does not meet any of the criteria prescribed by Section 237 (a), (b) and (c) of the Act.

[3]  The contentions and documents lodged by the Objectors and the State respectively are voluminous.  I have regard to them to the extent that they are relevant to the issues to be determined having regard to the circumstances disclosed by the evidence.

[4]  The parties are in agreement that the issues raised by each Objection should be dealt with “on the papers” and I am satisfied that such issues can in each case 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 1169 (“Calvert Hills”) and in part of Perpetual Pastoral Lease (1113) (“Woologorang”), and that there are no Aboriginal communities located within it.

[6]  The Objections

The Objections lodged each refer to three communities said to be “in the vicinity”, but expressed to be, respectively, 15 kms (“Calvert Hills”) to the north, 11 kms (“Jilundarini”) to the south east and 35-40 kms (“Woologorang”) to the north east. The Objections allege that those communities regularly use the area, including that of the ELA, for a variety of cultural and resource use activities including hunting, fishing and gathering, and for seeking material for making artefacts and for ceremonial purposes.  They also assert there to be two sites “recorded or registered” by the Aboriginal Areas Protection Authority (AAPA) “within the ELA area including a burial site”, and that there are numerous other sites to the north, south, east and north east, those to the north being said to be located along the Calvert and Little Calvert rivers and to be in close proximity to the ELA.  The nature and location of such sites is not identified.  The map provided with the objections shows both Calvert and Little Calvert rivers to run through the ELA, Calvert extending well to the north and well to the south and Little Calvert extending to the west and south and west.  The map provided by the AAPA and produced by the objectors, has marked on it the locations of various sites with site numbers, but reveals only one site (number 6363-25) within the ELA.  However, the map produced by the Territory shows two sites within the ELA, numbered 8 and 25 respectively.  The nature and status of such sites is not shown.  All the sites revealed by the AAPA information are shown as “recorded sites”.   

[7]  The Objectors contentions

The Objectors contentions also allege the existence of two sites on the ELA said to be recorded by the AAPA, numbered respectively 6368-8 (a burial site) and 6363-25  (Nanuburinyina) but refer only to the latter site as being one likely to be interfered with by the grant of the ELA.  The contentions assert its relevant “particular significance” to be that it is “a Rrumbarriya site owned by a young man at Doomadgee in Queensland” as deposed to in the affidavit of Roy Dixon produced in evidence.  The material from the AAPA produced and relied on by the Objectors does not refer to or show the location of the alleged burial site or a site number 6368-8. 

The contentions allege the community or social activities of the objectors to be foraging, hunting, fishing and the gathering of bush tucker and that other activities should be inferred.

The Objectors also allege that exploration, by its very nature, is likely to involve major disturbance to lands and waters and refer to the activities which may be permitted under an exploration licence.

[8] The evidence and material relied upon by the Objectors comprises; (a) an Affidavit by Roy Dixon affirmed 22 March 2002; (b) the Nicholson River (Waanyi/Garawa) Land Claim Report 26 July 1984 and the Garawa/Mugularrangi (Robinson River) Land Claim Report 14 March 1990, each by a Commissioner appointed under the Aboriginal Land Rights (Northern Territory) Act 1976 (“the Land Rights Act”); (c) two documents entitled respectively “Rights Conferred under an Exploration Licence” and “Analysis of Legislation dealing with significant areas and sites”, each said to be in the nature of contentions; (d) a document entitled “Exploration Activities” annexed to an Affidavit of Mark Frederick Foy affirmed 25 March 2002 and a transcript of the evidence of Mr Foy given on 4 December 2001 in an unrelated inquiry in respect of Expedited Procedure Objection applications DO01/11, DO01/12, DO01/17 DO01/18 and DO01/43, each relied on as statements of expert opinion but, as to a assertions of fact therein, as of general application unless otherwise apparent from the context; (e) an Affidavit of Geoffery John Wilson Stead sworn 8 October 2001 and a transcript of his evidence given on 3 December 2001 in the abovementioned unrelated enquiry, both also relied on as statements of expert opinion but, as to assertions of fact, as of general application unless otherwise apparent from the context, and (f) the material provided by the AAPA.

[9]  Affidavit of Roy Dixon

Mr Dixon deposes that he lives in Katherine and is an applicant in the North Calvert Native Title Determination Application (the Garawa people: DC01/32) and a member of the Native Title Claim Group in the Calvert Hills Native Title Determination Application (the Waanyi people:  DC01/04).  He deposes that the ELA is within the areas of both such applications and annexes a map showing its boundaries and surrounding land.  He says that the ELA is mostly on Calvert Hills Station and partly on “Wollogorang” and is “just north of the Nicholson River (Waanyi/Garawa Aboriginal) Land Trust area”; that the Calvert River and Seigal Creek flows through it; that “Turntable Yard” is about in the middle of the ELA; that the ELA is on Rrumbarriya country and that he knows where sites and some important dreamings are on Calvert Hills Station.  He says he can speak as Junggayi for Rrumbarriya sites in the area.  He deposes that “Nanuburinyina” is a site on the Calvert River near Turntable Yard, is a Rrumbarriya site for “all the Waanyi”, that “all the old people for this country are finished”, that a young fellow at Doomadgee owns “that place” and that “the old station used to be there”.  He deposes that the “Seigal Creek mob go there”, that they “come from Jilundarina community, which is further south on Calvert Hills Station” and that “they go fishing there at Turntable Yard” where there is a gorge.  The Form 4 objections and the map produced by the Territory identify Jilundarina as lying 11 kms south east of the ELA.  There is no evidence that the members of the Jilundarina community are part of either objecting group.  He says that the Seigal Creek mob includes two named persons and that there is a big mob of families there whose names he forgets. He says it is all “Sugarbag” country (which is not explained), that two old brothers who owned the country at Jilundarina died, and that “they” have a big mob of daughters and grandchildren living at Seigal Creek now.  He deposes that marked on the map annexed to his affidavit are some of the places referred to in it.  The map as printed does not have the name “Nanuburinyina” on it but that name has been inserted in ink with an AAPA reference 6363-25 and an arrow pointing to “Turntable Yard” as printed on the map.  That insertion is not initialled and is not referred to in the affidavit or otherwise accounted for in the material provided by the Objectors.  It is consequently unknown by whom it was inserted.  However, the site 6363-25 is shown on the map issued by the AAPA in approximately the same location as marked on the map annexed to Mr Dixon’s affidavit and is identified in the AAPA information as  “Nanuburinyina”, described as “StoneTable Waterhole north of Turntable Yard on the upper reaches of Calvert Hill”.  Mr Dixon deposes that “they”, (the Seigal Creek mob), go through “Wollogorang” to Doomadgee in Queensland and also go hunting downstream along Seigal Creek to the north, into ELA 22252 but can’t go much further than Turntable Yard.  The map produced by Mr Dixon and that produced by the Aboriginal Areas Protection Authority shows Seigal Creek to run almost due south through the ELA and then well to the south. There is no indication as to where on or in relation to Seigal Creek the mob reside.  The objections make no mention of a community at Seigal Creek.  Mr Dixon further deposes that “some young Aboriginal fellows working on Calvert Hills station are from Robinson River and that “on their weekends they go fishing and hunting through Calvert Hills station”.  The boundaries of Calvert Hills station are not shown on any map produced in evidence and are not otherwise deposed to.  Nor is the location of the Robinson River or of any community in its vicinity.  There is no evidence to link the “Seigal Creek mob” with either of the objecting groups.  Nor does the evidence link the Aboriginal persons who work on Calvert Hills station with either of the objecting groups.  Indeed the evidence relating to them is consistent with station employees hunting and fishing on the station lands independently of any community or social activities of the native title holders. 

[10] I find the evidence of Mr Dixon to provide no acceptable evidence of the carrying on any communal or social activities on or in the vicinity of ELA 22252 by the persons who are the holders of Native Title in relation to the land or waters concerned or of any site of “particular significance” (within the meaning of s 237(b) of the Act) in accordance with their traditions to the holders of native title in respect of the land and waters concerned. That an area or site is recorded or registered by the AAPA under the provisions of the Sacred Sites Act is not of itself evidence that it is an area or site of relevant particular significance.  That is self evident from the provisions of that Act.  To have particular significance it must be of a special or more than ordinary significance to the native title holders in accordance with their traditions (Carr J: Cheinmora v Striker Resources NL [1996] 142 ALR 21 at 24-35).

[11]  The Land Claim reports

It is not evident from the Land Claim reports that the lands the subject of either of those reports include the land the subject of the ELA. The Nicholson River report makes clear that that inquiry did not include Woologorang and Calvert Hills Stations. Nor is it evident that the traditional owners identified in that report are members of either of the objecting groups. The report reveals that the traditional country is broken up into eleven estates, each associated with a particular descent group who are the traditional owners of the respective estates. It does not reveal either of the objectors to be such a group. The report refers to overlapping claims and states that two of the original claim groups were “dropped” and replaced by another two, which suggests that there was some difficulty in identification of the respective traditional owners of the lands the subject of that report. The use the objectors contentions seek to make of that report is that it supports a claim to a right to forage and of the existence of specific sites said to be “in and outside” the areas the subject of the report which “may be” the subject of the ELA. The contentions assert, and, probably correctly so, that the lands the subject of the report are in the vicinity of the ELA which, it is said, “adjoins to the north” those lands. The land the subject of the Robinson River report is said to be approximately 45 kms to the northwest of the land the subject of the ELA. The contentions make clear that the use sought be made of that report in this inquiry is that regard should be had to it as evidence of existing significant sites on and in the vicinity of the ELA. I find no evidence in that report of any site of particular significance on or in the relevant vicinity of the ELA. It is contended that these reports are relevant to expand on and support the Affidavit evidence of Roy Dixon as to hunting on the lands the subject of the ELA, and to form a basis for an inference of activities which “may be” carried on the ELA. In my opinion they do not provide any acceptable evidence of the existence of sites of particular significance within the meaning of s 237(b) on or in the vicinity of the ELA nor do they add to the evidence of Roy Dixon as to activities referred to in s 237(a).

I am not prepared to adopt those reports. They seem to me to be irrelevant to the issues in these proceedings. They are dated in time and, in practical terms, for present purposes, refer only to a “right to forage”. Whilst a right to forage is generally accepted as an incident of native title, the question of the present inquiry is whether foraging is in fact engaged in in respect of the land the subject of the ELA, and, if so, whether it is likely to be directly interfered with by the proposed grant. There is no issue that sites of differing degrees of significance to the holders of native title may exist but, for the purposes of s 237(b), it is necessary to establish the actual existence and location of any such site on the land in question and its particular special or out of the ordinary significance (Chienmora v Striker Resources [supra]). Without that evidence, no issues arise as to whether it is a relevant site likely to be interfered with by the future act. The reports were made pursuant to the provisions of a different statute on evidence which may or may not now be presently acceptable having regard for the period of time that has elapsed since their making. It is not known by the Tribunal whether any of the conclusions therein were challenged and the Tribunal cannot assess the weight and value to be given today to evidence referred to therein in respect of lands outside those the subject of the reports. They do not, in any definitive way, identify or assist in identification of any site of particular significance within the meaning of s 237(b) on or in the vicinity of the ELA, do not assist in identifying relevant community or social activities carried on by the holders of native title likely to be directly interfered by the grant of the proposed licence and do not assist in determining whether the grant is likely to involve “major disturbance” within the meaning of s 237(c). It was open to the objectors to produce direct evidence in respect of the matters the subject of the sub sections of s 237 but, in that regard, they have elected to rely on the Affidavit of Roy Dixon. I find no correlation between the evidence and the material in the reports sufficient to add to or support his evidence in respect of the present objections.

[12]  Documents “Rights conferred under an exploration licence” and “Analysis of    legislation dealing with significant areas and sites”

As I have indicated in other determinations, I am grateful for the assistance provided by those documents.  The first is a handy reference to the relevant provisions of the Mining Act (NT) as they were prior to the Mining Amendment Act 44 of 2001 and the Mining Management Act 43 of 2001.  It directs attention to the then relevant provisions of that Act, but comments on only some thereof, so that recourse to the Act is still required for a full understanding of its provisions.  It is now dated by reason of the said two Acts, numbers 43 and 44 of 2001.  The second document also suffers in that it does not refer to either of the said statutes of 2001, is generally concerned with sites within the meaning of the Northern Territory Aboriginal Sacred Sites Act and the Northern Territory Aboriginal Land Rights Act and is very limited in its consideration of the meaning and effect of s 237(b) of the Native Title Act.  I find that those two documents add little if anything to the submissions contained in the objectors contentions.

[13]  The affidavit and transcript evidence of Mr Foy and Mr Stead

In determinations (DO01/40, DO01/41)  Hazelbane and Ors/Northern Territory/Johnston: 27 March 2002 and (DO01/70 and D01/71) Riley and Foster/Northern Territory/Johnston and Sakurai: 17 April 2002) I have commented on the weight and effect of the evidence of Mr Foy and Mr Stead given in those inquiries in terms identical to the evidence produced from them in the present inquiries. With every respect for their qualifications and experience demonstrated by that evidence, I find the same to be of too general and hypothetical a nature to be helpful in respect of the issues involved in these inquiries. Neither addresses the issues raised by s 237(a), (b) and (c) of the Act, other than in very general terms and with two little particularity to lead to a conclusion in respect of the issues one way or the other. This evidence does not assist in the identification of a community or social activity carried on by the holders of native title likely to be interfered with by the grant, nor of any area or site of relevant particular significance likely to be so interfered with. Nor does it provide evidence of the views of the objecting groups or of others as to whether the grant is likely to involve “major disturbance” within the meaning of s 237(c) of the Act (See Dann v Western Australia (1977) 144 ALR relied on by both the objectors and the Territory), or take into account the overall effect of the legislative regime which controls the exercise of rights under an exploration licence, ie the Mining Act as amended by Act No. 44 of 2001, the Mining Management Act No. 43 of 2001, the Northern Territory Aboriginal Sacred Sites Act and the Northern Territory Aboriginal Land Rights Act.

[14]  By letter dated 15 April 2002 the objector, without any explanation, lodged material described as “AAPA site information from ELA 22457; “Transcript evidence from Kybrook Farm on 15 November 2001 (page 28)” and “Transcript evidence from Site Visit on 15 November 2001 (pages 6 – 10)”.  Referring back to the objectors contentions lodged 27 March 2002, it is clearly intended to support submissions there made under the heading “The Extent and Existence of Sites on the Register”.  The transcript evidence reveals it to be from the examination of a witness at the hearing of an expedited procedure objection DO01/19 but does not identify by name or otherwise the site or area the subject of the witness’s evidence.  The contentions under this heading refer to two sites “Japenjin” and “Jimbilang” (not identifiable in the Transcript) as being the subject of evidence in other proceedings, the extent of which is said not to match the AAPA information.  They allege Japenjin to be the site of which the witness speaks.  That information, as provided on 15 April, does not refer to any site by either such name.  The extracts of evidence do not provide clear or sufficient evidence to support the submission.  The contentions point to the difficulties in identifying the area and boundaries of a site, contending (rather unnecessarily in my view) that the AAPA Register might not display its full extent.  They provide reasons why that may be so, which do not make any distinction between ‘recorded’ and ‘registered’ sites and which, incidentally, include (in reliance of the transcript evidence of Mr Stead referred to above), the statement that “the nature of a sacred site and the emphasis given to it can so change, that the site Register description does not match the actuality”.  The contentions argue that other sites might be misdescribed in AAPA information and submit that the evidence of a witness should be preferred to that of the AAPA records.  The Tribunal is not told whether the evidence of the witness was accepted in DO01/19.  Not having been involved in DO01/19, I find it impossible to make sense of the extracts of the evidence of the witness so provided and I note that the contentions contain assertions of fact, not mentioned in the evidence provided, to enable the objectors to state a conclusion as to the minimum width of the site.  In any event the evidence and submissions are irrelevant to this inquiry as the issue to which they are directed does not arise.  The curious effect of the submission, however, is that, although it is the objectors who introduced AAPA site information into evidence in the present inquiry, they now argue it to be unreliable.  The contentions go on to suggest that the fact that no sites are recorded or registered in the area of a particular proposed tenement, should not result in a conclusion that no sites exist there.  In my experience, that has never been in dispute.  It does not however absolve an objector from producing evidence of the existence and location of any site on which it wishes to rely and of its relevant particular significance in accordance with the traditions of the holder of native title.  The information provided by the AAPA makes clear that “recorded” sites are made known to it from a variety of sources, including requests to have them entered on the register, and that in many cases the Authority has not been able to assess the accuracy of the information, whereas “registered” sites are said to be sites that the Aboriginal custodians have asked the Authority to protect and which have been documented and evaluated.  In my opinion the point sought to be made in the contentions and material in support thereof, could have been succinctly and more accurately made by reference to that information provided by the AAPA and to the Northern Territory Aboriginal Sacred Sites Act ss 27 and s 29.  That they were made in the present case demonstrates a failure to identify relevant issues resulting in unnecessary submissions and irrelevant evidence.

[15]  The Territory has provided material showing prior mining tenements granted and in force in respect of land the subject of the ELA and land adjacent thereto between 1962 and 1997.  That material is unchallenged.  It reveals that between April 1962 and April 1972 there were 10 Authorities to Prospect, covering virtually the whole of that ten year period and that between March 1972 and January 1997 there were 26 Exploration Licenses covering virtually the whole of that period.  Maps showing the location of those exploration licences, except for exploration licences numbered 259 (May 1972 to March 1973), 450 (August 1972 to August 1975) and 541 (August 1972 to August 1976) are also provided.  The material reveals that licences in force for various periods between March 1972 and August 1982 covered most of the land the subject of the ELA.  Those in force for various periods between June 1981 to February 1990 covered an even greater area and those in force between January 1991 and July 1998 covered that portion of the ELA not previously covered as well as the greater portion of the remainder of the ELA.  The result is evidence that the whole of the ELA has been the subject of one or more exploration licenses at some time between March 1972 and July 1998 and most of it for all of that time.  Further, the information reveals the existence of adjoining licences over the same periods.  Also produced is a map of the ELA and surrounding areas purporting (again without challenge) to show where previous exploration activities were carried on, on and in the vicinity of the ELA.  This map is supported by a schedule identifying the respective exploration licences on which those activities are said to have been carried out and the source of that information.  A further map is produced which shows that three exploration licences adjoining each other have been granted to the south of the ELA, one of which abuts part of the southern boundary of the ELA with part of its northern boundary.  This map reveals the areas surrounding the ELA in all directions to be the subject of numerous exploration licence applications, including substitute exploration licence applications, and of some granted mining tenements.

[16]  It is of considerable significance that Mr Dixon makes no expression of concern as to, or allegation of, any interference with the carrying on of any community or social activity of the native title holders, or anyone else on the ELA arising out of past exploration activity on it, or of past or present exploration activity in its vicinity, nor as to the present likelihood of any such interference.  He makes no suggestion that any of the hunting or fishing activities to which he deposes have, to any extent or in any way, been interfered with.  The same observation is valid in respect of interference, or likely interference, with areas or sites of relevant particular significance, or indeed, any sites.  Nor does he express any concern or make any complaint as to the occasioning of major disturbance by past exploration activity on the, or by past or present exploration activity in the vicinity.  He makes no comment on and expresses no concern as to the activities carried out under the authority of the pastoral lease on which ELA is situated.  There is no evidence from any of the persons who are said to carry on the activities of hunting and/or fishing.  The implication of Mr Dixon’s evidence is that the activities of the persons and groups of persons to which he refers in his affidavit, have been and continue to be carried on without any interference.  We are not told of the frequency of any such activities, other than in respect of the workers on Calvert Hills station who are said to go fishing on their weekends.

[17]  Conclusions

S237(a)

I find the evidence is inadequate to identify the persons said by Mr Dixon to hunt and fish on the ELA as members of the objecting groups.  Even if they are members of one or other of the objecting groups, I find the evidence to be insufficient to lead to a conclusion that it is likely that the grantee of the ELA will interfere directly with those activities.  The objection (Form 4) does not identify any community or social activity likely to be interfered with.  There is no evidence of any interference or any concern with interference in the past despite substantial exploration activity on and adjoining and in the vicinity of the ELA and despite three granted mining tenements abutting each other, one of which also abuts the ELA.  To constitute “interference”, the impact of the exploration activity must be substantial (Derrick Smith v Western Australia [2001 FCA19]). Section 24(j) of the Mining Act provides that (unless waived, varied or suspended) every exploration license shall be granted subject to a condition that the licensee shall conduct his exploration programmes and other activities in such a way as not to interfere with, among other things, “the lawful activities or rights of any person on, or in relation to land adjacent to the licence area”.  The Second Schedule conditions to apply to the grant require (inter alia) that the licensee shall carry out its activities in such a way as to minimise any extant native title rights and interests “in particular by ameliorating any interference directly with the carrying on of community or social activities of registered native title claimants or holders”.  It should not be presumed that the licensee will act contrary to a condition of the grant and the presumption of regularity applies.  It is also significant in this regard that breach or failure of a condition puts the licensee at risk of cancellation of his exploration licence (s 171).  It is apparent from the evidence that the activities of which Mr Dixon speaks are not limited to the ELA and the evidence does not suggest that the grant will substantially interfere with the conduct of those activities in any substantial way.  Rather, it suggests that such hunting as is, and has been, conducted on the land the subject of the ELA, is a relatively minor part of the activity of hunting carried out over a much larger area.  It does not suggest that hunting on the ELA has any particular importance viewed with the overall activity which is said to take place “through Wollogorang to Doomadgee in Queensland”, and along Seigal Creek through Calvert Hills station.  The evidence of fishing is that the Seigal Creek mob go fishing at Turntable Yard and that the young Aboriginals who work at Calvert Hills station go fishing through the station.  Again the evidence does not suggest that fishing elsewhere is restricted or difficult or that the proposed grant will have any substantial impact on the native title holders activity of fishing.

S237(b)

I find the evidence also to be inadequate to establish that Nanuburinyina is an area or site of particular significance in accordance with the traditions of the native title holders. I do not accept the objectors contention that evidence that it is a Rrumbarriya site owned by a young man Doomadgee in Queensland is evidence that it is of particular significance within the meaning of s 237(b). That evidence, without more, is no more than a statement of identification. As virtually everything is capable of identification by some means or another, and is generally made by some form of description, identification as such, is not of special or out of the ordinary significance and so does not result in an area or site being one of relevant ‘particular significance”. I also do not accept the general contention advanced by the objectors that an area or site has particular significance if it has an identifiable significance that is different from that of any other area or site, or the alternative submission that all land or waters are significant, and a named area or site is significant in comparison with other lands or waters. That again is no more than a matter of identification by way of a feature or comparison. I repeat that, to be of relevant particular significance, the significance must be special or of more than ordinary significance “in accordance with the traditions of the native title holders”. That is well established by the authorities. Identification does not automatically translate to a special significance of itself. It merely identifies a place which may or may not have such significance.

S237(c)

I find the evidence to be insufficient to lead to a conclusion that the grant of the ELA is likely to involve major disturbance to any land or waters concerned or to create rights whose exercise is likely to involve major disturbance.  There is no evidence from the objectors as to any apprehended disturbance should the grant be made.   Despite the evidence of substantial prior exploration activity on and virtually surrounding the ELA, and of three current granted exploration licences immediately to its south, in part abutting its southern boundary, there is no evidence of complaint or expression of concern as to any disturbance resulting therefrom. The legislative regime in force in the Northern Territory is also a significant factor in assessing the likelihood of relevant major disturbance.  I have referred to that regime in some detail in Hazelbane (supra) [13] to [16] and in Riley and Foster (supra) [18] and [19].  I also draw attention to the reasoning and findings of Member Sosso in Moses Silver and Ors/Ashton (Exploration/Northern Territory; DO01/13: 1/2/02) adopted by me in Riley and Foster (supra at [19]). The meaning to be given to the expression “major disturbance” and the matters generally to be taken into account in its evaluation for the purposes of s 237, are provided by the judgements of the Full Court of the Federal Court in Dann v Western Australia (1997), 74FCR391, to which I have referred in Hazelbane (supra at [15]).  It is not necessary that I repeat my observations on those matters in these reasons.  Taking into account the matters to which I have referred, I am satisfied that, in the view of the Australian community generally, the grant of the ELA is not likely to involve major disturbance to any land or waters concerned or to create rights whose exercise is likely to involve major disturbance.

Determination

[18]  The determination of the Tribunal is that the grant of Exploration Licence 22252 to Astro Mining NL is an act which attracts the expedited procedure.

……………………………………….

Hon EM Franklyn QC

Deputy President

10 May 2002