Don Rory and Roy Dixon on behalf of the Garawa People/North Mining Limited/ Northern Territory
[2002] NNTTA 124
•28 June 2002
NATIONAL NATIVE TITLE TRIBUNAL
Don Rory and Roy Dixon on behalf of the Garawa People/North Mining Limited/ Northern Territory, [2002] NNTTA 124 (28 June 2002)
APPLICATION NO: DO01/43
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 on behalf of the Garawa People (Native Title Party)
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North Mining Limited (Grantee Party)
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Northern Territory of Australia (Government Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: J. E. Stuckey-Clarke, Member
Place: Sydney
Date: 28 June 2002
Hearing dates: 11 July 2001; 16 November 2001; 3 December 2001; 4 December 2001; 20 December 2001; 18 January 2002; 28 February 2002; 5 March 2002
Government Party: Mr Daniel Lavery, Solicitor, for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Jeff Wilkie
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – grantee party’s intentions – presumption of regularity – likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation:
Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 109, 146, 151, 237
Cases:
C.N.Hardie/Western Australia/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO 00/92, Member Stuckey-Clarke 25 June 2001
William Risk and Kathleen Mary-Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso 15 April 2002
Smith v Western Australia [2001] FCA 19
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Cheinmora v Striker (1996) 142 ALR 21
Western Australia/Winnie McHenry WO 98/125, Deputy President Franklyn, 28 July 1999
Ward v Western Australia (1996) 69 FCR 208
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002
REASONS FOR DETERMINATION
Background
[1] On 7 February 2001, the Northern Territory (“the government party”) gave notice pursuant to section 29 of the Native Title Act (“the Act”) that it proposed to grant Exploration Licence 10046 (“the proposed tenement”) to North Mining Limited (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 500 blocks (a block is approximately 2.9 square kilometres), 1641 sq kms, within the Calvert Hills locality. The area of the proposed tenement is comprised of the following pastoral leaseholds: Perpetual Pastoral Lease (“PPL”) 1113 (known as Wollogorang) and PPL 1169 (known as Calvert Hills), and NT Portion3553.
[3] On 8 May 2001 a native title determination application was filed with the Federal Court (D6032/01). The name of the application is “North Calvert Hills” and the applicants are Mr Don Rory and Mr Roy Dixon. The application was registered on 7 June 2001. The “North Calvert Hills” application covers the whole of the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (7 June 2001) after the section 29(4) notification day (7 February 2001). Mr Don Rory and Mr Roy Dixon are the named objectors. The Tribunal has previously determined that Form 4 objections in Group 4 have been properly accepted and that, while a Form 4 cannot be amended in a substantive manner after the statutory 4 month time limit has expired, there is no amendment of a Form 4 by the submission to the Tribunal of such matters as are contained in the contentions of the native title party in the matters before me: see the Decision of Member Sosso on whether the Tribunal has Jurisdiction to conduct an inquiry in Applications No. DO 01/3, DO 01/13, DO 01/19-23, unreported, 21 December 2001. I agree with and follow Member Sosso’s decision in those matters. I conclude that the Tribunal has jurisdiction to determine this inquiry.
[5] On 1 October 2001 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.
[6] On 11 July 2001 Deputy President Sumner made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. I issued further directions at various listing hearings, the last of which was convened on 5 March 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determining the matter on the papers and I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section l5l of the Act.
The Evidence
Objector’s Evidence
[7] The native title party relies upon an affidavit of Mr Roy Dixon of Corroboree Hostel, Katherine, affirmed 5 November 2001 which is set out in full below:
I, ROY DIXON of Corroboree Hostel, Katherine, in the Northern Territory of Australia,
do solemnly and sincerely declare and affirm as follows:
1. I live at Corroboree Hostel in Katherine. I am here for the dialysis.
2. I am an applicant in the North Calvert Hills native title determination application
D6032/0l. The area of the application includes the area of ELA 10046. I have seen a map of the area of the ELA. Now produced and shown to me marked "RD-10046” is a map of the ELA and the surrounding area.
3.Calvert Hills homestead is on the ELA. So are Eagle Yard, Cattle Creek, Valley Yard Crocodile Yard and the Calvert River.
4. Part of the ELA is on Barri Barri country
5. There is star dreaming, Barri Barri, right on Packsaddle Creek. It is my dreaming, my father’s fathers dreaming. That one means you can get lost easily. He’s a dangerous one; Barri Barri doesn’t like damage to country. They kill people. Sometimes they are dangerous and sometimes not. It is alright if the company drills, but they will 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.
6. 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 that rock
hole, as long as they didn't put gelignite there.
7. Bidirda is a name for a place with a White Dingo, a Yellow Goanna, and a Star Dreaming. It is all the country between Surprise Creek and Packsaddle Creek, and right on to Robinson River, west of the ELA. Another place is Eagle Yard, at the junction of Bluey Creek with Cattle Creek, in the ELA. Bidirda is west of that and to Robinson River Station It goes on the west side of Eagle Yard. The south east side of Bluey Creek is all right; on the north west, you’ve got to be bit careful for that Star.
8. You can go down that country. They are mustering that country this year. My son has been doing that. The Calvert Manager told them that there was Robinson River cattle on Calvert. They have got to take the Junggayi. They have taken 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.
9. My son will go fishing there while he is mustering. The Barri Barri knows them well from a kid.
10. People go fishing and hunting on 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 it , dry time.
11. People from Robinson and Doomagee are working on Calvert .They go hunting and fishing at Valley Yard and Crocodile Yard. They mostly don’t go hunting and fishing at Shepherd Yard now; there is not much river. They go hunting when they are mustering
12. The name for that country is Nguybirri, up the Calvert Valley. They are Rrumbarriya people.
13. There is a place Ngangnawuna, at the top of the valley, at Crocodile Yard, on the little Calvert River. He goes a long way up. Duck Hole: that’s Liliriji, Duck Hole. Half of it is inside Nicholson and half of it is in Calvert. There’s a dreaming there, Wugurdu, Star. If you lie down at night time, you see it come out. The mining company can go to Ngangawuna and Liliriji. They can drill there. Liliriji is north from Jambarana. They can’t go in that lake, Jambarana, on Benmara.
14. There’s a gorge downstream from Ngangawuna. His name is Mimaloya. People go fishing there.
15. There’s one they call Larrlgubaya, a black rock, down from Mimaloya but way up from the station. It’s a special fishing place. Old time, they used to get a log and grass and made all the fish go inside, just like a fish net. The company can go to that place.
16. There is a place, Winmarina, at Calvert Station homestead. It’s a waterhole. Bardarrmurinais upstream from the station. At Winymarina, there’s one rock, a woman, Mararabana Dreaming. They can’t go there There’s a big rock in the middle of the water. If the mining company goes there, those Mararabana might come out and make them girls go mad.
17. Kujurlabarina is the main waterhole downstream from Calvert Station. Dabudabuna is another main waterhole on Little Calvert River. Diyadiyangangais downstream from Calvert too. Balunbarrina is on Little Calvert River just up from the junction with the Calvert River. Wabulangu is up from the junction. Warlirriguru is the name for the junction of the Little Calvert and the Big Calvert Rivers. None of these are sacred sites. There are no Dreamings there.
18. Wuyumarina is upstream along the Big Calvert, just up from Calvert Yard. There is good fishing there. They go up there from Wollogorang. Old Rosie Potts: her mob goes there. Another one is Heifer Creek, there is a big waterhole there.
19. East of Bull Creek there is a big red hill, a round one, Irinirinyina. Balwamarrinyina is another name for that hill. That old devil married his sister there. They came from Marndaganyi; that’s a big base for them, down at Golden Yard in the Wollogorang. No, that mining company can’t go there. It might make that devil come out more. He might come out from Marndaganyi. It’s the same as Wugurdu. If you get one rock and take it away, that Wugurdu damages you inside. That’s why the mining company doesn’t want to go there and take rocks.
20. There’s one rock, a stone table at Turntable Yard. It’s not a sacred place.
21. They can’t go to Barralina. I can’t think of it’s white fella name. I still call him Bullock Springs. If they go there, the Emu Spirit will hit them. The main road crosses the Calvert there. It is a big rock on the eastern bank. They can go on the western side, but not there. It’ll make you sick. I won’t go there if the mining company is there.
22. North of the junction of Bluey Creek and Calvert Creek there is a road crossing where the Wollogorang Road goes across. Yangulinyina community is on the north west side.
23. I show people around my country. I don’t want to see anything damaged. If the owner or anyone else damages the place, I’ve got to charge him.
[8] The native title party submitted the following further evidentiary material to the Tribunal:
(a)Extracts from the Garawa/Mugularrangu (Robinson River) Land Claim Report dated 14 March 1990 (“the Land Claim Report”), of the Commissioner appointed under the Aboriginal Land Rights(Northern Territory) Act 1976(Cth) (“the Land Rights Act”), being pages 32 and 35. The area of the Land Claim adjoins the licence area to the north. Roy Dixon was found to be a traditional Aboriginal owner (6.2.12).
(b)A document entitled “Rights conferred under exploration licence”.
(c)A document entitled “Analysis of Legislation dealing with significant areas and sites”.
(d)A document entitled “Exploration Activities.
(e)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001; and
(f)Affidavit of Mark Fredrick Foy and Annexure MFF1.
(g)Information provided by the Aboriginal Areas Protection Authority in relation to Aboriginal Sacred Sites within the area of the proposed tenement (‘the AAPA sites information”).
The Government Party’s Evidence
[9] The government submitted its particulars as well as the following evidentiary material to the Tribunal:
(a)A topographical map marked with the area of the proposed tenement , location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”), tenure details and any known Aboriginal communities;
(b)A schedule of details of the sacred sites referred to;
(c)Mining Tenement documents, including the licence application and details of any current mining tenement and prior mining tenements granted over the same area;
(d)A Revised Prior Tenement Schedule, prior exploration licence map, previous exploration activity map and schedule and existing title holder map and schedule.
(e)Affidavit of Timothy Milne Gosling sworn 5 December 2001;
(f)Affidavit of Hugh Joseph Bland sworn 29 November 2001.
(g)A folder marked “Particulars”
The Grantee Party’s Evidence
[10] The grantee party relied upon the following matters evidenced before the Tribunal:
(a)Statement of Contentions dated 12 November 2001 which were signed by Mike Fitzpatrick, Superintendent for Tenements for the grantee in which he deposed to the intentions of the grantee in relation to its activities on the proposed tenement: In the Contentions the grantee said:
“North Mining Ltd is a subsidiary of Rio Tinto Exploration Pty Ltd specialising in mineral exploration and mining.
8. The Grantee relies on the decision of the Federal Court in Smith on behalf of the Gnaala Karla Booja People v State of Western Australia[2001] FCA19.
a)The Grantee adopts the contentions of the Government Party with respect to the legal principles governing the application of s237 of the NTA to the proposed Exploration Licence”
9. The Grantee contends that the exploration licence application complied in all respects with the Mining Act, and if the exploration licence is granted, the Grantee will comply in all respects with:
a) Northern Territory and Commonwealth legislation (including the Mining act, the Northern Territory Aboriginal Sacred Sites Act 1989(NT), the Aboriginal Land Rights (Northern Territory) Act1976 (cth)the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Native Title Act 1993 (Cth).
b)The conditions of the exploration licence itself.
c)Rio Tinto’s Community Relations and Environmental Policies, with the following effect;
I. Ashton is sensitive to the interests of all Aboriginal parties affected by its exploration activities and endeavours to minimise the social and environmental impact of those activities;
II. Ashton will communicate in an open and honest manner with all community representatives and exercise respect and consideration when engaging with Aboriginal parties;
III. Prior to conducting work programs during the course of exploration, Ashton will ensure that an appropriate process of Aboriginal heritage protection is conducted, commensurate with the proposed level of impact of each program;
IV. Ashton recognises the special connection to land and waters that Aboriginal parties may hold and acknowledges that there may be places that Aboriginal parties may wish that exploration activities be excluded for cultural reasons.”
The Parties’ Contentions
[11] The government, grantee and native title parties filed extensive contentions in the proceedings. I have considered the contentions in detail and will refer to them with particularity where appropriate.
General Legal Principles
[12] Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are holders… of the native title in relation to the waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[13] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.
Reasoning
Section 237(a) – Interference with carrying on of community or social activities
[14] The Government party in its Statement of Contentions at [14]-[37] set out its submissions as to the proper construction of section 237(a) with which I agree. I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.
[15] The native title party in its Contentions at [39]-[41] contends that:
(a)There are several aboriginal communities ‘in the vicinity of’ the licence area which are occupied by members of the native title claim group. They include, Calvert Hills station [Affidavit of Roy Dixon [3]]; Robinson River [Affidavit of Roy Dixon [10] ]; Yangulinyina Community [ Affidavit of Roy Dixon [10],[22]].
There are several roads inside, and in the vicinity of the area of the proposed tenement that are frequently used by the members of the claim group to access the communities, and areas, including the licence area , for carrying on community and social activities.
a. The road from Booroloola to Doomagee;
b. The Calvert Road along the Little Calvert River.
c. A track from Robinson River ALT to Calvert Hills Homestead.
d. Several station tracks.
There are several water bodies and other areas of environmental significance in and around the licence area. These are used for fishing, sources of drinking water and may sustain and be parts of areas and sites of significance. They include,
a. Calvert River and its tributaries;
b. Little Calvert River and its tributaries;
c. Bluey Creek and tributaries.
The community and social activities of the native title claim group include;
(a) Foraging [Land Claim Report [5.6]];
(b)Hunting, fishing, gathering of bush tucker [Affidavit of Roy Dixon[10],[11],[14-16];
(c)the community of native title holders actively look after country, by visiting and maintaining sites [ Affidavit of Roy Dixon[23]], Land Claim Report [6.21].
This activity is conducted by individuals with specific responsibility for that area.
These activities occur over some or all of the licence area, and in its vicinity.
[16] The government party in its contentions in reply at [11]-[23] said:
“14. The communities mentioned in Paragraph 39 of the Objectors contentions as relevant communities, being Yangulinyina and Robinson River are well outside the proposed licence area.(There is a query as to whether Calvert Hills Station is contended to be a community.)
15. There is an issue of relevance and also of particularity with Paragraph 40.If the Objectors are asking the Tribunal to conclude that the potential use by the Grantee of the roads and tracks mentioned is an interference directly with the carrying on of the claimed activities, it is an insubstantial impact, bordering on the trivial. Trivial impacts are not within the scope of s.237 (per French J. in Derrick Smith at [26]). Any number of other users, Aboriginal and non-Aboriginal, utilize these unsealed roads and tracks and any of them could potentially cut up unsealed surfaces. (Such damage is unlikely to be caused by exploration activities as it would usually occur in the wet season after the exploration field season in the Northern Territory has concluded.)
As to Paragraph 42 the lack of particularity as to these claimed activities makes it difficult for the Tribunal to attribute any evidentiary weight to the assertions. The specific locations at which the hunting and other activities are said to occur are patchily identified, the overall range where such activities can be carried [out] is not stated; the seasonal variations in the game, fish or article sought, the number of persons engaged in these activities; all are unstated.
18. As to the frequency of these activities, Mr Dixon says that others engage in fishing and hunting and foraging yet does not state the frequency of these excursions, rather he says,
“When they go ringing on Calvert, they go fishing then. They will still if the mining company is there. They go when they feel like it.[D]ry[T]ime.”
16 ….French J. said [in that paragraph]:
“To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”
It would be unreal to assume that the native title claim group members can attend to community or social activities on pastoral leasehold in some sort of exclusive zone where impact from other lawful users is not tolerated. These other users need accommodate the lawful activities of the native title claim group members and it must be presumed that concurrent rights holders will respect the co-existent rights of others in relation to pastoral land the subject of exploration activities.
19. As to Paragraphs 42-48 of the Objector’s Contentions, the apprehended interference must be direct, meaning that the act must be the proximate cause of that apprehended interference,(per French J in Derrick Smith at [26]) It is only if the carrying on of a community or social activity is likely to suffer a proximate impact from an exploration activity that there is interference within the meaning of paragraph 237(a). Moreover, this impact must be substantial. The affidavit material of the Objector simply does not establish the how, when, where and why a substantial impact on the carrying on of any of the claimed community or social activities is likely to occur. Indeed, statements from the affidavit of Mr Dixon belie substantial impact. As to fishing, Mr Dixon says: They will still go if the mining company is there,” ( at para 18 of his affidavit of October 2001).
[17] There is evidence before me of community and social activities, namely hunting, fishing and foraging, conducted at the present time at specific locations on the proposed tenement. Mr Dixon deposes that his son, undoubtedly a member of the native title claim group, goes fishing on Calvert while mustering [9] and that “people” go fishing and hunting on Calvert and up Surprise Creek from Yangulinyina and from Robinson and “when they go ringing on Calvert” and “when they feel like it, dry time.” Further he says “people” from Robinson and Domagee working on Calvert go hunting and fishing at Valley Yard and Crocodile Yard [11]. He also says “people’ go fishing at Ngangawarana [14] and that Larrlgubaya is a “special fishing place”. [15]
[18] Even assuming that the “people” referred to in [11] and [14] are members of the native title claim group, which is by no means clearly evidenced, and that the hunting and fishing is substantial given seasonal constraints, I note that Mr Dixon says in relation to the two most important fishing and hunting areas, namely Calvert and Larrlgubaya, “[t]hey will still go there if the mining company is there”(Calvert [10]) and “[t]he company can go to that place”(Larrlgubaya [15]). The natural inference to be drawn from these words is that Mr Dixon admits that the activities under the exploration licence are not expected to directly interfere with those activities at those places.
[19] I note that the grantee party relies upon the contentions dated 12 November 2001 signed by Mr Fitzpatrick, Superintendent of Tenements for the grantee party in which he says that the grantee party intends to comply with the relevant legislative regime and the conditions of the licence. Further he refers to the Community Relations and Environmental Policies of the grantee, see [10] above.
[20] I note also that the government party has led evidence that there have been five mineral claims and thirty eight previous exploration licences granted within the area of the proposed tenement dating continuously from 1972-2002. Some of the activities under those tenements have involved stream sediment sampling and percussion, diamond and reverse circulation drilling.
[21] The statutory regime operating in the Northern Territory is a comprehensive one aimed at preventing interference with community or social activities of native title holders by explorers. Exploration licences are granted in the Northern Territory subject to statutory conditions made pursuant to section 24 A Mining Act. Pertinently the first two conditions are:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular, by ameliorating:
(a)any interference directly with the carrying on of community or social activities of registered native title claimants or holders;
(b)any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out its activities in such a way as to minimise the disturbance or the environment of the licence area, in particular by minimising:
(a) interference with the use of the land by other persons;
(b) the disturbance of flora, fauna or other natural resources;
(c) pollution, including soil, water and atmospheric pollution;
(d) the incidence and effects of soil erosion.”
[22] There are a further 17 conditions aimed at prohibiting a range of activities which might directly interfere with community or social activities of native title holders. In particular, Cl. 18 requires the licensee to convene a meeting with registered native title holders prior to the commencement of exploration activities and have regard to any aspect of the proposed exploration activities which raise concerns. Further, the present grantee in its Community Relations and Environmental Policies provides that it will be sensitive to the interests of all Aboriginal parties affected by its exploration activities and endeavour to minimise the social and environmental impact of those activities and that it will communicate in an open and honest manner with all community representatives and exercise respect and consideration when engaging with Aboriginal parties[Grantee contentions dated 16 October 2001.] As Member Sosso said in Kathleen Parry, Albert Myoung, Paddy Huddleston and Marjorie Foster/Northern Territory/Troy Resources NL DO 01/85, unreported, 12 June 2002, at [43] referring to the s.24A Mining Act conditions:
“These are not the only relevant provisions in force in the Northern Territory, but they highlight the fact that there is in place a regime aimed at preventing ( as far as practicable) disturbance to community or social activities by explorers. Obviously the existence of this regime does not render a section 237(a) inquiry unnecessary, and it is always possible on the basis of the evidence presented to an inquiry that the Tribunal may find that there is a likelihood of interference pursuant to s.237(a). Nevertheless, it is clear that the combination of the various statutory provisions and conditions in the Northern Territory goes quite some way in ensuring that exploration activity will, in many instances, not result or not be likely to result, in interference to community or social activities.”
[23] In my view, in the context of the totality of the evidence before me, taking into account the legislative regime in the Northern Territory, the evidence of the grantee as to its intention to comply with the legislative regime in both the spirit and to the letter of that regime, the fact that the area of the proposed tenement has been subject to substantial mining and exploration activity and yet remains a source of fish and game and Mr Dixon’s admissions referred to at [19] that the proposed activities are unlikely to directly interfere with the carrying on of those activities, I conclude that the community and social activities evidenced before me would not be likely to be directly interfered with by the grant of the proposed tenement taking the common sense approach to the evidence and applying the test of direct interference explained by French J. in Smith v. Western Australia [2001] FCA 19, I find that it is not likely that the proposed grant will directly interfere with community or social activities of the native title claim group within s.237(a) of the Act.
Section 237(b) – Sites of particular significance.
[24] In Moses Silver at [86]-[107], Member Sosso analysed legal issues raised by the contentions of the government and native title parties in respect of the general legal principles applicable to and the proper construction of section 237(b) which were also raised in similar contentions in this matter. I agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.
[25] So far as section 237(b) is concerned, the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the areas or sites must be “capable of identification” and the nature of their significance to the holders of native title must be explained to the Tribunal: see Western Australia/Winnie McHenry WO 98/125, 28 July 1999. It will usually be the case that evidence relating to particular significance will be peculiarly within the knowledge of the native title party and that, absent documentary evidence, such as the Sacred Sites records, evidence of location and identification will also be peculiarly within the knowledge of the native title party so that failure to produce such evidence may lead to the drawing of an unfavourable inference on the issue taking the common sense approach to evidence: see Carr J. in Ward v. Western Australia(1996) 69 FCR 208 at [217].
[26] The evidence as to such sites produced by the native title party and relied upon is referred to in the contentions at [49-65]. The native title party also relies upon the AAPA sites information and map which indicates that on the proposed tenement there are 24 recorded sites notated as 6363-1, 6363-10, 6363-11,6363-12, 6363-13, 6363-14, 6363-15, 6363-16, 6363-17, 6363-18, 6363-19, 6363-2, 6363-20, 6363-21, 6363-22, 6363-24, 6363-3, 6363-4, 6363-5, 6363-6, 6363-7, 6363-9, 6463-1 and 6463-45. There are also several sites identified outside of the application area. At [51] of the contentions, the native title party contends that the areas or sites of particular significance that the grant of the exploration licence is likely to interfere with are Barri Barri( Dixon [4-5],[8-9]), Lilirji (Dixon [13]), Ngangawuna (Dixon [13]), Winymarina (Dixon [16]), Barralina (Dixon [21]) as well as the several sites or areas referred to by Mr Dixon at [19-20].
Many other sites are evidenced by the AAPA schedule and map which the native title party has put in evidence. As Member Sosso said in BenWard/Northern Territory/Swiftel Ltd, DO 01/83, 12 June 2002, unreported at [78]:
“It is a condition precedent to an inquiry pursuant to section 237(b) that the native title party identify specific areas and sites. Without such signification there is no basis for determining that there are areas or sites of particular significance. It is not sufficient for a native title party to rely on the mere fact that an area or site has been registered or recorded by the AAPA. The circumstance of site recording or registration, while of potential importance, is not of itself proof that an area or site is of particular significance pursuant to section 237(b) – see Wilma Freddie/Western Australia/Stephen Povey WO 99/882 (“Wilma Freddie”), unreported, Member Stuckey-Clarke, 19 December 2001 at [46].”
I agree with this view. I therefore do not accept that there is any weight to be given to the AAPA evidence in respect of sites or areas which are not specifically referred to by Mr Dixon in his affidavit.
[27] The native title party also relies upon the affidavit of Jeffrey Stead who deposes to his belief that it is unlikely that the AAPA Register for any particular area will be accurate and complete for all sites of areas of significance within it. Mr Stead also gave oral evidence at the hearing on 3 December 2001. I refer to my analysis of Mr Stead’s evidence in Roy Dixon/Plenty River Corp. Ltd/Northern Territory, DO 01/51 at [24-25].
[28] In its Contentions at [44]-[48], the government party contends “that the grant is not likely to interfere with any areas or sites of particular significance….for the following reasons:
“(b) in any event, the identified sites have the statutory protections offered by the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”). This Act applies to all of the land in the Northern Territory and provides protection for sacred sites as defined in s.3 of the Aboriginal Land Rights Act(Northern Territory)Act 1976(Commonwealth)(“the Land Rights Act”). “Sacred Site” is defined in the Land Rights Act as meaning “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition”. An area or site gains the protection of the legislation whether registered or not. Although all sacred sites would not be sites of particular significance, such definition includes any area or site of particular significance in accordance with the objector’s traditions. The protections include:
(i) Section 33 of the Sacred Sites Act provides that a person (which definition includes bodies corporate) shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the Act or the Land Rights Act. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(ii) Section 34 of the Sacred Sites Act provides that a person shall not carry out work on or use a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(iii) Section 35 of the Sacred Sites Act provides that a person shall not desecrate a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(iv) Section 37 of the Sacred Sites Act provides that a person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister’s Certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(c) Section 69 of the Land Rights Act also makes it a criminal offence to enter or remain on land in the Northern Territory that is a sacred site.
(d) Section 24 of the Mining Act relevantly provides that every exploration licence shall, unless expressly waived, varied or suspended in writing by the Minister, be granted subject to the condition that the licensee will…
“(k) not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory ,,otherwise than in accordance with that law.”
(e) The Second Schedule of Conditions includes conditions which specifically reduce the likelihood of interference with sites of particular significance. Conditions 1(b),3,4,12,18 and 20 are referred to as particularly relevant to paragraph 237(b) issues. The compulsory inspection of the Register of Sacred Sites and the mandatory on-site meeting with any native title holders are seen as mechanisms to significantly reduce the likelihood of interference with such sites.
(f) Also the letter of grant of the proposed licence will include endorsements specifically directing the grantee party’s attention to the provisions of the Sacred Sites Act so that, combined with other endorsements and conditions, this militates against reliance on defenses that may be mounted based on an absence of knowledge to offences under the Sacred Sites or Land Rights Acts.(This is stressed in the on-going communications with the grantees.)…….
47. The contextual risk evaluation by the Tribunal need include the following factors:
the regulatory scheme which governs the exercise of the rights under the grant(including the presumption of regularity);
the statutory scheme which protects sacred sites in the Northern Territory; and
prior and current concurrent lawful activities on the same licence area.”
[29]In my view, the evidence does disclose that the sites contended for by the native title party in [51] of the contentions are all sites of particular significance to the native title holders within the meaning of section 237(b) except for the site referred to at [20] of Mr Dixon’s affidavit. In paragraph he says, “There’s one rock, a stone table at Turntable Yard. It’s not a sacred place.” On no view could this be regarded as sufficient evidence of particular significance in the relevant sense required by s.237(b) of the Act. However, that is not the end of the matter. The Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective, indeed the evidence is to the contrary. Further, I do not find it established before me that the AAPA Sites Register is inaccurate or deficient insofar as it relates to matters relevant to this inquiry or generally. The evidence of Mr Stead did not establish such inaccuracy in any relevant or specific sense in respect of the area covered by the proposed tenement.
[30] In conclusion therefore, in light of the Northern Territory statutory regime for the protection of sacred sites, and taking into account the evidence of the grantee party as to its intentions to comply with that regime and its own policies designed to prevent interference with sites or areas of particular significance as well as the admissions by the objector that in respect of some of the sites of particular significance, namely Ngangawuna, and Liliriji , he considers that the ‘company can go there”, I find that it is not likely that the any areas or sites of particular significance which may exist on the proposed tenement will be interfered with by the proposed grant.
Section 237(c) - Major Disturbance to land or waters
[31] As to the general legal principles applicable to the proper construction of this section, I concur in and adopt the general legal principles as set out by Member Sosso in Moses Silver at [135-140].
[32] The government party contended at [53]-[65] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party relied on the following legislative provisions:
(a)Section 24(e) Mining Act which prohibits a grantee from carrying out any programme involving substantial disturbance without the prior approval of the Secretary of the Department of Mines and Energy;
(b)Section 23(c) Mining Act which permits a grantee only to extract or remove material for sampling and testing purposes(not productive extraction) and which is reinforced by section 24(b) which makes this a condition of grant;
(c)Section 24(e) Mining Act requires that a grantee party wishing to undertake activities involving substantial disturbance to the surface of the licence area must seek approval pursuant to the section. The grant of the tenement only permits activities associated with exploration;
(d)Section 166(a) Mining Act provides that all exploration licences are granted conditional upon the grantee causing as little disturbance as possible to the environment and complying with written directions to minimize disturbances or to make good any damage and rehabilitate the land;
(e)Section 24(e) Mining Act approvals are subject to compliance with such remedial and activity-specific conditions as are considered appropriate for the protection of the environment;
(f)Conditions 2,7,8,9,12,13,14,15,16,17,18,19 and 20 of the Second Schedule of Conditions pursuant to section 24A Mining Act.
[33] The government party further contended at [61]-[64] that:
The presumption of regularity in this context allows the Tribunal to presume that the discretion by the Secretary will be exercised responsibly within the boundaries of the discretion, including that appropriate remedial conditions will be attached:
(a) Although not defined in the Mining Act, “substantial disturbance” is interpreted, as a matter of administrative practice, to commence with any significant disturbance to the surface of the soil and includes activities such as drilling, access-track clearance and costean/bulk sampling;
(b) Section 24(e) permits effective management of potential disturbances by prohibiting such disturbance without prior written approval, requiring the grantee party to inform the Secretary in advance of the nature and extent of the disturbance activity and to disallow (if necessary) the disturbance or to effectively manage the disturbance and its rehabilitation so that no major disturbance is involved.
(c) Under section 166(2) Mining Act, the remedial conditions attached to the Secretary’s approval under s.24(e) become conditions of grant.
[34] The government party contended in conclusion at [65]:
“Taking into account:
(i)The absence of particulars of major disturbance;
(ii)the regulatory scheme which governs the exercise of the rights under the grant;
(iii)the additional statutory checkpoint which seeks to prevent and/or remedy disturbances; and
(iv)the statutory requirement that productive mining activities need proceed through a completely independent future act process than that of exploration licences
the Tribunal will conclude that the grant of the proposed licence does not create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[35] The native title party contended at [79] that the potential major disturbance to country included holes left from drilling, track built on country which would damage fauna and flora and promote erosion, damage to watercourses, reducing sustainable water supply and excessive dust.
[36] The native title party in its Contentions in Reply to the contentions of the government and grantee parties contended at [35]-[68]:
(a)Section 24(e) Mining Act only deals with disturbance to surface area and not with other kinds of disturbance;
(b)The full extent of rights accorded to a grantee are found in sections 23(b)-(d);
(c)Section 23(c) may permit substantial extraction or removal amounting to major disturbance;
(d)An exploration licence permits high impact activities e.g. road construction, drilling, sampling, costeaning and camp construction;
(e)The statutory regulatory regime contemplates substantial disturbance with prior approval of the Secretary but the government party did not address how that discretion is exercised;
(f)Rehabilitation does not mean that major disturbance has not occurred or that rehabilitation may itself involve major disturbance.
(g)The presumption of regularity does not extend to enable the Tribunal to rely on some fetter on the Secretary’s discretion
(h)The Second Schedule Conditions were defective. First, they are not enforceable by the Objector. Secondly, several conditions are subject to the approval of the Minister.
Condition 19’s protection is subject to Ministerial discretion and only deals with disturbances to the surface of the soil;
(j)Condition 20’s protection depends upon Ministerial enforcement and native title holders have no right to stop exploration or otherwise prevent or rectify damage.
[37] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[38] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)
[39] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.
[40] There is also before me in this matter evidence relied on by the government party in relation to current and previous mining activity on the proposed tenement. The government party’s Final Contentions at Attachment E provides a revised schedule which includes a list which shows that there have been five mineral claims and thirty eight
previous exploration licences granted within the same area dating continuously from 1972 to 2002. Some details have been provided in relation to the activities that were carried out. These are;
EL4472
Activity: Stream sediment sampling
I.The collection of sediment sample (5kg) from a suitable trap within the drainage:
II.Onsite screening of the sample to collect a particular size fraction; and
III.Laboratory processing/analysis of the sample for mineral content.
EL5774
Activity: Stream sediment/gravel sampling
I.The collection of gravel /sediment sample (40kg) from a suitable trap site within the drainage;
II.Onsite screening of the sample to collect a particular size fraction; and
III.Laboratory processing/analysis of the sample for heavy mineral content.
EL5931
Activity: Stream sediment sampling
EL7125
Activity: Stream sediment sampling.
EL7173
Activity: Stream sediment sampling
Percussion drilling involved
I.Preparation of drill site
II.Drill to predetermined depth;
III.Collection of drill sample per metre(10-50kg);
IV.Onsite screening of the sample to collect a particular size fraction; and
V.Laboratory processing/analysis of the sample for mineral content.
EL7175
Activity: Stream sediment/gravel sampling.
EL7191
Activity: Stream sediment sampling
Diamond drilling involved
I.Preparation of drill site;
II.Drill to a predetermined depth
III.Collection of core sample;
IV.Cutting of the core sample to collect a particular size interval; and
V.Laboratory processing/analysis of the sample for mineral content
EL7200
Activity: Stream sediment sampling
EL8084
Activity: Stream sediment/gravel sampling
EL8342
Activity: Stream sediment sampling
Rock chip sampling involved
I.The collection of rock chip form outcrop (1-2kg).
II.Laboratory analysis of the sample for mineral content.
EL8855
Activity: Stream sediment sampling
MCN567
Activity: Reverse circulation (‘RC’) drilling
I.Preparation of drill site
II.Drill to predetermined depth
III.Collection of drill sample per metre (10-50kg );
IV.Onsite screening of the sample to collect a particular size fraction; and
V.Laboratory processing/analysis of the sample for mineral content
[41] Having concluded like Member Sosso, that the generic material before me “highlights that the Northern Territory has in a place a well advanced, integrated and pro-active legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process”, taking into account the evidence of the grantee’s intentions to abide by the statutory regime and having considered the evidence of previous exploration activity, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to such land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 10046 to North Mining Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
J. E. Stuckey-Clarke
Member
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