Gabriel Hazelbane and Ors on behalf of the Warai and Angwinmil Peoples (Do02/45) and Gabriel Hazelbane and Ors on behalf of the Wagiman, Warai and Jawoyn Peoples (Do02/46)/Imperial Granite and Minerals Pty.. - [2002] NNTTA 256

NATIONAL NATIVE TITLE TRIBUNAL

Gabriel Hazelbane and Ors on behalf of the Warai and Angwinmil Peoples (DO02/45) and Gabriel Hazelbane and Ors on behalf of the Wagiman, Warai and Jawoyn Peoples (DO02/46)/Imperial Granite and Minerals Pty Ltd/Northern Territory, [2002] NNTTA 256 (24 December 2002)

APPLICATIONS NO: DO02/45 and DO02/46

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Gabriel Hazelbane and Ors on behalf of the Warai and Angwinmil Peoples (DO02/45) (Native Title Party)

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Gabriel Hazelbane and Ors on behalf of the Wagiman, Warai and Jawoyn Peoples (DO02/46) (Native Title Party)

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Imperial Granite and Minerals Pty Ltd (Grantee Party)

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Northern Territory of Australia (Government Party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Prof. Douglas Williamson QC
Place:  Melbourne
Date:  24 December 2002

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – government party’s application for dismissal of DO02/45 for want of evidence – reliance on evidence in DO02/46 – whether Tribunal has power to dismiss DO02/45 – standing of objectors and nature of objections – application of section 237 criteria – indivisibility of determination as to proposed act and licence area – rejection of dismissal application – whether act is likely to have any of the consequences specified in s 237 of the Native Title Act1993 (Cth) – evidence does not support objections in either DO02/45 or DO02/46 – determination that the grant of exploration licence is an act attracting the expedited procedure.

Legislation: Native Title Act 1993 (Cth) ss 29, 32, 237

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3
Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 3, 33, 34, 35, 36

Mining Act 1980 (NT) ss 24, 24A, 166
Mining Amendment Act 2001 (NT) s 14
Mining Management Act 2001 (NT) ss 35, 36, 37.

Cases: Ward v Western Australia (1996) 69 FCR 208

Dann v Western Australia (1997) 74 FCR 391
Smith v Western Australia (2001) 108 FCR 442
Little v Western Australia (2001) FCA 1706
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Western Australia/Winnie McHenry, NNTT WO98/125, Deputy President Franklyn, 28 July 1999
Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, Member Sosso, 1 February 2002
Michael Page/Arafura Resources NL/Northern Territory, NNTT DO01/21, Member Sosso, 1 February 2002
George Huddlestone and Others/Stephen Darryl Moffatt/Northern Territory, NNTT DO01/19, Member Sosso, 1 February 2002
Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, Deputy President Franklyn QC, 27 March 2002
Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People and Others/Northern Territory/Ashton Mining and Anor, NNTT DO01/140, DO02/16, 17, 20 and 27, Member Sosso, 15 April 2002
Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, Member Williamson QC, 15 July 2002
Arthur Que Noy and Others/Robert Michael Biddlecombe/Northern Territory, NNTT DO01/114, Member Sosso, 19 July 2002
Anges Limmerick/Pilbara Chemical Corporation NL and Rare Earths and Minerals Pty Ltd/Northern Territory, NNTT DO01/47, Member Williamson QC, 5 August 2002
Andy Andrews and Others/Northern Territory/Exploration and Resource Development Pty Ltd, NNTT DO01/123, 124 and 125, Member Sosso, 19 August 2002
Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/57, Member Williamson QC, 21 October 2002
Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/61, Member Williamson QC, 5 December 2002

Listing Hearing date: 26 August 2002.

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

Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler, Solicitor for the Northern Land Council.

Grantee Party: Mrs Sandra Johnson, Director, Capricorn Mapping and Mining Title Services.

REASONS FOR DETERMINATION

Background

On 12 December 2001 the Northern Territory (‘the government party’) issued a notice pursuant to section 29 of the Native Title Act 1993 (Cth) (‘the Act’) that it proposed to grant exploration licence 22957 (‘the proposed tenement’) to Imperial Granite and Minerals Pty Ltd (‘the grantee party’) and included a statement in accordance with section 32(1) that it considered that the act attracted the expedited procedure as defined in s 237 of the Act.
The proposed tenement covers 11 blocks (approximately 37 square kilometres) within the Pine Creek locality. The area of the proposed tenement (the ‘licence area’) covers part of Pastoral Lease 815 (known as ‘Mary River West’) and part of Perpetual Pastoral Lease 1111 (known as ‘Ban Ban Springs’). Most of the licence area is within Mary River West. The balance (eastern-most portion) is within Ban Ban Springs.
On 1 February 2001 a native title determination application was filed with the Federal Court by Paddy Huddlestone, Lenny Liddy, George Huddlestone, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the Wagiman, Warai and Jawoya Peoples. The application was registered on 1 March 2001 (DC01/6) (D6006/01). It is known as ‘Mary River West’ application, and covers an area of 1107.68 square kilometres, including the major part of the licence area.
On 13 March 2001 a native title determination application was filed with the Federal Court by Gabriel Hazelbane, Tony Kenyon Luwanbi and Valerie Tambling on behalf of the Warai and Angwinmil Peoples. The application was registered on 24 May 2001 (DC01/21) (D6021/01). It is known as ‘Ban Ban Springs’ application, and covers an area of 1123.03 square kilometres, including the eastern-most part of the licence area.
In response to the government party’s section 29 Notice, a Form 4 Objection to Inclusion in an Expedited Procedure Application was lodged with the Tribunal on 12 April 2002. The one Objection Form included common objections by each of –

(a)Gabriel Hazelbane, Lenny Liddy, Paddy Huddlestone, Robert Patrick Makham (sic: Markham) and Tony Kenyon on behalf of the native title claim group in the Mary River West Application (DC01/06).
(b)Gabriel Hazelbane, Tony Kenyon Luwanbi and Valerie Tambling on behalf of the native title claim group in the Ban Ban Springs Application (DC01/21).

The Tribunal accepted the Objections. The making of joint objections, and the acceptance of them, are valid procedures. See Andy Andrews and Others/Northern Territory/Exploration and Resource Development Pty Ltd, NNTT DO01/123, 124 and 125 unreported, Member Sosso 19 August 2002 at [31] to [33]. That made on behalf of the Mary River West native title claim group (DC01/06) is identified as DO02/46. That made on behalf of the Ban Ban Springs native title claim group (DC01/21) is identified as DO02/45. The objectors are referred to herein as ‘the native title party’, either collectively or separately as appropriate.
On 17 April 2002 directions as to contentions and evidence were made in both DO02/45 and DO02/46. On 12 August 2002 further directions were made in DO02/46 extending the time for the native title party to provide sworn or affirmed affidavit material. On 23 August 2002 the government party applied for the dismissal of DO02/45 ‘for want of any primary, relevant evidence’. Contentions in support of that application were set out in the government party’s combined document ‘Application To Dismiss/Contentions in Reply’ dated 23 August 2002.
At a listing hearing on 26 August 2002 short oral submissions about the dismissal application in DO02/45 were made by Mr Lavery on behalf of the government party and Mr Frith on behalf of the native title party. At that time I declined to deal with the application summarily, and directed that the native title party may provide a written response to the dismissal application within 10 working days, and that the application be considered and determined at the same time as the expedited procedure objection application.
I was satisfied that both the dismissal application and the objection application could be determined on the papers in conformity with section 151(2), and so directed.
Directions made on 26 August 2002 also provided that the following additional documents be received in evidence:

(a)the folder of ‘Standard Documents’ updated to August 2002, submitted by the government party
(b)the folder of ‘Standard Documents to Contentions of Objector’ provided 9 August 2002 by the Northern Land Council, submitted by the native title party
(c)transcript of evidence 16 and 17 April 2002 in DO01/62, submitted by the native title party.

Further, the directions made in DO02/45 provided that the material submitted by the native title party and the government party in DO02/46 be received for consideration in DO02/45.

The Parties’ Contentions

The contentions provided by each party on its own behalf were similar in DO02/45 and DO02/46. Further contentions were provided by both the government party and the native title party in DO02/45 concerning the dismissal application.
The following contentions, dated as shown, were submitted to the Tribunal in each matter (except where confined to DO02/45):
(1)    government party’s Statement of Contentions, 1 August 2002
(2)    native title party’s Statement of Contentions of Objectors, 9 August 2002
(3)    grantee party’s Contentions, 15 August 2002
(4)    government party’s Application to Dismiss/Contentions in Reply (DO02/45), 23 August 2002
(5)    grantee party’s Reply to Contentions of Objector, 23 August 2002
(6)    native title party’s Contentions in Reply to government party and grantee party, 23 August 2002
(7)    native title party’s Reply to government party’s Application to Dismiss (DO02/45), 9 September 2002.

The Parties’ Evidence

The evidence provided by each party on its own behalf is similar in both DO02/45 and DO02/46. The native title party relies in DO02/45 on all material supplied on its behalf in DO02/46. This is indicated by correspondence and by direction made on 26 August 2002.
The government party submitted the following evidence:
(1) Map marked with –
(i)proposed licence area
(ii)location of sacred sites, registered or recorded under the Northern Territory Aboriginal Sacred Sites Act 1989, both within the licence area and in its general locality
(iii)the location and general details of various underlying tenures of land, both within the licence area and in its general locality; and
(iv)the location of any known Aboriginal communities within and in the vicinity of the licence area.
(2)Mining tenement documents including –
(i)a copy of the Exploration Licence application (with financial details in a sealed envelope marked ‘Financial Details – Confidential’)
(ii)a schedule of current mining tenements covering the licence area
(iii)a schedule of prior mining tenements granted over the licence area.
(3)The government party’s Statement of Contentions, 1 August 2002, includes copies of the Schedule of Endorsements and Schedule of Conditions to be included in the proposed grant (see the government party’s letter to the Tribunal 2 August 2002, paragraph (d) (ii)).
(4)Maps at Attachment ‘A’ to the government party’s Statement of Contentions, comprising:
(i)Prior Exploration Licence Map and Schedule (maps A to D, showing locations during successive periods between 1973 and 1996)
(ii)Previous Exploration Activity Map (map E)
(iii)Mineral Occurrence Map and Schedule (map F).
(5)Documents contained in the folder of ‘Standard Documents’ updated to August 2002. The contents are listed under the heading ‘Standard Documents’ at pages 6-7 of the government party’s Statement of Contentions.
The grantee party submitted the following evidence:
(1) An unsworn statement of the policies of the grantee party with respect to potential interference with social activities, sites of significance, and major disturbance of land or water. The statement is attached to a letter 12 August 2002 from Mrs Sandra Johnson, Director, Capricorn Mapping and Mining Title Services, on behalf of the grantee party as its Titles Consultant.
(2) A map (Plan No IG/SH 1) showing the locations of all registered or recorded sites including heritage sites in or around the licence area. This map is referred to in the above policy statement and is attached to Mrs Johnson’s letter.
The native title party submitted the following evidence:
(1)Affidavit of Joe Huddlestone, affirmed 12 August 2002.
(2)Transcript of evidence 16 and 17 April 2002 in Paddy Huddlestone and Others/Robert Stroud and Robert Fisher/Northern Territory, NNTT DO01/62. Pages 34-37, 53-56, and 67-69 of that transcript are extracted and exhibited to Mr Huddlestone’s affidavit. (The native title party has noted in its Contentions that the transcript has not been corrected for any transcription errors.)
(3)Extracts from the transcript of evidence in George Huddlestone and Others/Stephen Darryl Moffatt/Northern Territory, NNTT DO01/19, 1 February 2002, comprising pages 6-10 (site visit, 15 November 2001) and page 28 (at Kybrook Farm, 15 November 2001). (These are Standard Documents NTP7 and NTP8.)
(4)The AAPA material provided to the Tribunal and other parties in DO01/19. (Standard Document NTP9.)
(5)Letter dated 13 August 2002 from the Northern Land Council enclosing information provided by the Aboriginal Areas Protection Authority (‘AAPA’), comprising a map showing sites on and in the vicinity of the licence area registered or recorded in the Register of Sacred Sites as at 9 August 2002, together with a schedule containing the identifying reference number, description (name), brief geographical description, status and map co-ordinates of each site. A direction was made on 26 August 2002 preserving the confidentiality of this information other than for the purposes of the proceedings in this matter.
(6)The Mataranka Land Claim Report, December 1988, paragraphs [7.1.1] to [7.2.6].
(7)Affidavits affirmed by expert witnesses Jeffrey John Wilson Stead (8 October 2001) and Mark Frederick Foy (6 November 2001). Annexure ‘MFF1’ to Mr Foy’s affidavit is a 10 page document ‘Exploration Activities’ prepared by him. (Standard Documents NTP5 and NTP3.)
(8)Transcripts of evidence given by Jeffrey John Stead, 3 December 2001, and Mark Frederick Foy, 4 December 2001, in expedited procedure objection inquiry DO01/11 before Member Stuckey-Clarke. (Standard Documents NTP6 and NTP4.)
(9)Documents prepared by Angus Frith ‘Rights conferred under an exploration licence’ (8 October 2001) and ‘Analysis of legislation dealing with significant areas and sites’ (7 November 2001). These are in the nature of legal analysis and opinions concerning the relevant legislation. (Standard Documents NTP1 and NTP2.)
[18] It is convenient at this point to set out in full the affidavit of Joe Huddlestone, affirmed 12 August 2002:
I, Joe Huddlestone of Kybrook Farm,in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1.I am a member of the native title claim group in the Mary River West native title determination application (DC01/06). I am Wagiman. Paddy and George Huddlestone are my brothers. I live at Kybrook, near Pine Creek, in the Northern Territory.
2.The area of the application includes the area of ELA 22957. I have seen a map of the area of the ELA. Now produced, and shown to me marked “JH-22957” is map of the ELA and surrounding area.
3.The area of ELA 22957 is mostly between the Stuart Highway and the old railway line, near Burrundie. Part of the ELA is east of the old railway line. The road to Burrundie from the Stuart Highway passes through the ELA. McKinlay River flows though the ELA.
4.Most of that area is Wagiman country. Wagiman goes north and east to the old railway line, which passes through the north eastern part of the ELA 22957. I can speak to the Tribunal about the part of the area of land and waters covered by the ELA that is Wagiman country. But for decisions about that Wagiman country, you have to speak to all the Wagiman.
5.The ELA area is about four kilometres east of ELA 10172. I gave evidence to Professor Williamson of the Tribunal at Kybrook Farm on 16 April 2002 in Tribunal matter DO01/62 about ELA 10172. I gave evidence with Paddy Huddlestone and Lenny Liddy, but I did most of the talking about Wagiman community or social activities on the area of ELA 10172. Paddy knows I am making this affidavit about ELA 22957.
6.Now produced and shown to me marked “JH-T 10172” are pages 34-37, 53-56, & 67-69 of the Transcript of evidence in matter DO01/62 concerning the expedited inquiry into the grant of ELA 10172. I have had those parts of the transcript read to me. They say what Wagiman do on the area of ELA 10172. I confirm that the transcript accurately says what I said.
7.I confirm that what I said to the Tribunal about the way we go hunting in the wet and in the dry is true. What I said about hunting and fishing also applies to the area of ELA 22957.
8.In the wet, we drive up the highway or along the old railway line in two cars. We park them, leaving one car, walk through the bush, including the area of ELA 22957, back to the other car. While we are walking, we hunt for kangaroos, porcupine. We use guns; sometimes we use a spear. Often there are eight or nine married men, and some boys. Meantime, we leave the women at the fishing area. We take our kids and grandchildren and show them how to hunt all through the area. I do that so when I’m gone they’ll know how to hunt and how to look after our country.
9.We go hunting in the dry season as well. We get kangaroos, porcupines, and bush tucker-green plum, bush potato, water yam, sugar bag. There are fishing places we use in the ELA area.
10.I went fishing in the ELA area on 21 April 2002, after the wet. I went with my wife Maureen, my nephew and my daughter and her three kids-my grandchildren. We went in one troop carrier. We went for the whole day until the afternoon. We went fishing the McKinlay River where it meets the road up to Burrundie. We caught a couple of Turtles and some bream. We only go there in the dry; there is too much rain in the wet. I go there at other times in the dry; sometimes I go after work. It is a good place for fishing.
11.When we go fishing, I tell the kids stories about the country. I teach my grandchildren about our heritage. I tell them about sites on Wagiman country. I tell them what to do. Sometimes, we walk up to the hills in the ELA’ sometimes when it is burnt. In April the grass was too high.
12.Just Wagiman go hunting thereon that Wagiman country; other people can’t get tucker. We talk to that country in Wagiman we tell that country what we are doing there. The country can smell us and knows us. You got to talk to that country in language.
13.If the white fella not introduced to country he get lost there he get sick there. Maybe we get into trouble from the old people who passed away – spirits – for letting other people go there without being introduced there proper. Spirits of the old people stay on that country that’s where they go. Old people died in that country and their skin get into the dust of that country.
14.If white fella go there and damage country maybe they damage the water. Maybe the country will punish the miners for damaging the country. They should take Wagiman people with them tell them where they can go. OK for white fella to go there but have to talk to us first and we show them where they can go and where they can’t go. White man can’t take soil from there without talking to all the Wagiman first. We show them where they can take it.
15.Wagiman country is west of the old railway line. Mohammod Douglas, who lives at Kybrook, was working up in that area for Acacia Gold, in 1999. They were drilling Box Creek way, near Emerald Springs. Acacia Gold did not come and ask us traditional owners about the drilling. I did not like that. They have to talk toi Wagiman about what they do on Wagiman country. For the country on the east side of the old railway line, they’ve got to talk to Jawoyn.
16.There were Wagiman working on drilling at Union Reef, south of ELA 22957. Robert Liddy, Lenny Liddy’s son, sent some CDEP boys from Kybrook to work there. They took sample bags at Union Reef – bags of rock – the same size as garbage bags. They did not tell us what they were doing there. We did not get any compensation for the sample bags they took.
17.That mining company should come and talk to Wagiman about what they do on Wagiman country.

General Legal Principles

The key to the objection process and the present inquiry lies in the provisions of section 237. These provide as follows:
A future act is an act attracting the expedited procedure if:
(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) 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 the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or 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.
The interpretation and application of the provisions of section 237, both before and since amendment in 1998, have been the subject of considerable attention both in determinations by the Tribunal and judgements of the Federal Court of Australia. This material has been canvassed in detail in the contentions by the government party and the native title party in the present matter, and in a number of similar objection inquiries in the Northern Territory during the past year. An extensive and helpful analysis of the relevant principles is set out in the Reasons For Determination given by Member Sosso in Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, 1 February 2002 (‘Moses Silver’). No point is served by repeating that process here, because to the extent that the principles and observations set out in paragraphs [20] to [47] (predictive assessment, standard of proof, presumption of regularity, evidence of intention, activities outside the proposed tenement, beneficial and protective character of the Act, co-existence of rights with pastoral leases, meaning of the term ‘act’); paragraphs [49] to [62] (section 237(a) – community and social activities); paragraphs [86] to [107] (section 237(b) – sites of particular significance) and paragraphs [135] to [140] (section 237(c) – major disturbance) of DO01/13 are relevant to the issues directly raised in the present matter, I respectfully agree with them and adopt them, subject to incorporation of the comments about the appropriate approach to spiritual issues set out in paragraphs [18] to [21] of my Reasons for Determination in Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, 15 July 2002.

Dismissal Application

The government party contends that objection application DO02/45 should be dismissed ‘for want of any primary, relevant evidence’. It accepts that the objectors in DO02/45 rely upon the material submitted by the objectors in DO02/46, but contends that this material is not relevant to DO02/45. Without relevant evidence, the objection in DO02/45 should be dismissed. It is contended that:
(a)Passages selected from the Mataranka Land Claim Report (dated December 1988) are not probative, as the traditional owners in the Land Claim Report and the registered claimants objecting in DO02/45 bear no correlation to each other, and the findings in the Report as to the nature of the right to forage are not translated into foraging activity within the licence area.
(b)The affidavit affirmed by Joe Huddlestone does not extend to country to the east side of the old railway line, ie, that part of the licence area within the native title claim area of the objectors in DO02/45.
(c)Accordingly, there is no primary relevant evidence relating to the country within the licence area for which the objectors in DO02/45 are the ‘holders of native title’ (section 237).
In response, the objectors in DO02/45 contend:
(a)The powers of the Tribunal to dismiss the objection application are confined to sections 147, 148 and 149 of the Act. These do not expressly or impliedly empower dismissal for lack of primary relevant evidence.
(b)The objection application is not frivolous or vexatious within the meaning of section 147.
(c)The material in Mr Huddlestone’s affidavit is primary relevant evidence for the purpose of objection DO02/45.
Both the government party and the objectors in DO02/45 refer to and rely upon passages from the Tribunal’s determination in Andy Andrews and Others/Exploration and Resource Development Pty Ltd/Northern Territory, NNTT DO01/123, 124 and 125, 19 August 2002, unreported, Member Sosso.
The essence of the application for dismissal is the contention that there is no evidence relating directly to the portion of the licence area that falls within the claim area of the objectors in DO02/45, and therefore the objection by them should be dismissed.
As noted previously, initially one Form 4 objection application was made by the two objection groups acting together. The Tribunal processes effectively split the application into two, assigning objection numbers DO02/45 and DO02/46 to them. The objectors in DO02/45 are registered claimants in the Ban Ban Springs native title application, which includes the relatively small portion of the northern part of the licence area to the east of the old railway line. The objectors in DO02/46 are registered claimants in the Mary River West native title application, which includes the relatively large portion of the licence area to the west of the old railway line, and the small southern part of the licence area to the east of the line.
Each objection relates to the proposed act, namely the grant of one exploration licence, EL 22957, over the whole of the licence area, and each objection is to the inclusion of the statement in the section 29 notice that ‘the’ act is an act attracting the expedited procedure.
The objectors in DO02/45 concede that the extracts from the Mataranka Land Claim Report are not relied upon as primary evidence of the community or social activities of the members of the Ban Ban Springs native title claim group (Objectors’ Reply to Application to Dismiss, paragraph [12]). They also acknowledge that Joe Huddlestone can only speak for country to the west of the old railway line (Objectors’ Reply, paragraph [14]). However, reliance is placed upon Mr Huddlestone’s affidavit as primary evidence regarding the expedited procedure criteria in section 237 ‘with respect to the area covered by the act’ (Objectors’ Reply, paragraph [15]).
The objectors in DO02/45 contend that the Tribunal has no power to dismiss the objection application for lack of relevant evidence (ie, without determination on the merits of the evidence). They argue that the power of (summary) dismissal is confined to the circumstances set out in sections 147 to 149, none of which are applicable in the circumstances.

See Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People and Others/Northern Territory/Ashton Mining and Anor, NNTT DO01/140, 02/16, 17, 20 and 27, Member Sosso, 15 April 2002 at [14]. There is some force in this argument, and I also note that section 32(4) provides that if objection is made, the Tribunal ‘must determine’ whether the act is an act attracting the expedited procedure. This provision suggests that there is an obligation to consider the total evidence provided by the parties, and to make a determination on the merits, whatever that might be.

I do not have the advantage of any contentions by the government party or the grantee party in response to this particular argument, and am reluctant to make a formal decision upon it if there is no necessity to do so. As at present advised, I am inclined to consider that the contention of the native title party is probably correct, where notice of objection is properly given by a party with proper standing. For the reasons given below however, in my view it is not necessary to decide this issue on this occasion.

I now turn to the substance of the government party’s contention. The ‘act’ notified under section 29(2) is the intention of the government party to grant exploration licence EL 22957 over the specified area of country, in accordance with the application made by the grantee party. The notification includes a statement pursuant to section 32(1) that the government party considers the act is an act attracting the expedited procedure. Each objector in DO02/45 and DO02/46 is a ‘native title party’ within the meaning of section 30(1), and thus entitled under section 29(2)(b)(i) to be notified of the proposed act, and to object under section 32(3) against the inclusion of the above statement. If no objection is made, the proposed act may be done (section 32(2)). If objection is made, the Tribunal ‘must determine’ whether or not the act attracts the expedited procedure (sections 32(4), 32(5)). If the expedited procedure is not attracted, the normal right to negotiate procedure must then be followed (sections 32(5) and 31(1)).
Section 237 sets out the criteria that must be applied by the Tribunal when making a determination.

Under section 237(a) the issue is whether the act is likely to interfere directly with the carrying on of the community or social activities [in a traditional context: Moses Silver] of the persons who are the holders of ‘native title in relation to the land or waters concerned’.

Under section 237(b) the issue is whether the act is likely to interfere with areas or sites of particular significance [in accordance with their traditions] to the persons who are the holders of ‘the native title in relation to the land or waters concerned’.

Under section 237(c) the issue is whether the act is likely to involve major disturbance (or create rights whose exercise is likely to involve major disturbance) ‘to any land or waters concerned’.

In my opinion section 237(c) is directed to major disturbance of the land or waters ‘concerned’ in the section 29 notice. Further, sections 237(a) and 237(b) are directed to likely interference with community or social activities of native title holders, and likely interference with areas or sites of particular significance to native title holders, in relation to the land or waters ‘concerned’ in the section 29 notice.

The ‘act’ in question is plainly one act (the grant of the exploration licence), and in my opinion the land or waters with which the section 29 notice is ‘concerned’ is one area, ie, the licence area as a whole. The issue is whether anywhere within that area any interference or disturbance specified in section 237 is likely to occur.
The objectors in DO02/45 and DO02/46 are in each case traditional owners, for the purpose of section 237, of only part of the licence area, but in my opinion each has standing under the Act to object to inclusion of the statement in respect of the likely effect of the act - in terms of sections 237 criteria - upon any part of the area to which the act applies.
In my view, neither the objectors in DO02/45 nor those in DO02/46 are obliged to provide evidence relating to every part of the licence area. This would be unduly onerous, impractical, and not required by the Act. It is commonplace in objection applications that evidence is directed to particular areas or places within the licence area, and depending upon the nature of the matter in question, its effect may be assessed in the context of the licence area as a whole.
The objectors in DO02/46 have submitted evidence relating to that part of the licence area within their native title claim area (Mary River West). The objectors in DO02/45 have adopted and rely upon that evidence. As to adoption of evidence by other parties, see Andy Andrews and Others/Northern Territory/Exploration and Resource Development Pty Ltd, NNTT DO01/123, 124 and 125, Member Sosso, 19 August 2002 at [35] to [37]. In my opinion, the objectors in DO02/45 are not obliged to submit or adopt evidence that relates to that part of the licence area within their native title claim area (Ban Ban Springs). Once their own standing as objectors is accepted, it may be enough that they submit or adopt some evidence (credible in terms of section 147) relating to some part of the licence area. In my opinion, it is sufficient in the present matter that the objectors in DO02/45 adopt and rely upon the affidavit of Mr Huddlestone, albeit that it is confined to the area within the Mary River West claim. The task then is to assess the significance of that evidence for the purpose of a determination concerning the proposed act, which relates to licence area as a whole.
In any event, there is a further matter not expressly raised by the parties in their contentions. There is in fact some direct, specific and credible evidence that is relevant to the portion of the licence area within the Ban Ban Springs claim, put forward by the objectors in DO02/45. The AAPA material provided by the objectors in DO02/46 and adopted by the objectors in DO02/45 shows and describes a recorded sacred site identified as 5270-44 within that area. It is also referred to in the material provided by the grantee party (Contentions 15 August 2002, map IG/SH1). The significance, if any, of that site is to be assessed in the light of the evidence as a whole, but in my opinion, this material provided a short answer to the government party’s contention that there is no ‘primary, relevant evidence’.
In summary, the proposed act is one and indivisible (the grant of exploration licence EL 22957), the land or waters with which the section 29 notice is concerned is also one and indivisible area (the licence area), each objector is entitled to object to that act, and each objector is entitled to rely on any credible evidence that arguably shows that in some respect the act fails to attract the expedited procedure when judged by section 237 criteria. In my opinion, whilst it is necessary that the objector has standing as a native title holder with respect to some part of the proposed licence area, it is not necessary that the evidence relied upon by the objector relates to that particular part. If there is credible evidence that does relate to that part (such as in paragraph [36] above), then of course the issue does not arise.
For the reasons discussed above, in my view the application for summary dismissal of objection DO02/45 ‘for want of any primary, relevant evidence’ is not sustainable, and is itself hereby dismissed.
The consequences of the evidence provided, in terms of section 237 criteria, is another matter altogether, and requires assessment and determination by the Tribunal.

Section 237(a): Interference with carrying on community or social activities

The issue is whether the proposed act of granting the exploration licence is likely to interfere directly with the carrying on of the community or social activities of the native title claim group in relation to the land or waters concerned. The native title party sets out in its Statement of Contentions that:
[41] 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:
a.Pine Creek is about 25 kilometres south of the licence area;
b.Kybrook Farm is about 4 kilometres south of Pine Creek.
[42] There are several roads inside, and in the vicinity of the licence area:
a.Grove Hill Road, which runs from Union Town to Burrundie, passes through the licence area at two points.
b.A branch of the Stuart Highway brushes the southeastern boundary of the licence area. A track from this road travels north west into the ELA.
[43] There are several water bodies and other areas of environmental significance in and around the licence area. They include:
a.The Bonnie range runs northwest/southeast through most of the licence area. It forms a drainage basin for the headwaters of the McKinlay River.
b.The McKinlay River rises just west of the licence area. It flows northeast across a substantial part of the licence area.

[44] The community and social activities of the native title claim group include:
a.    Hunting and gathering of bush tucker [affidavit of Joe Huddlestone [7], [8] to [12]; 10172 transcript pages 35-37, 53-55, 69. The Mataranka Land Claim Report provides some assistance in defining the context in which foraging (which includes hunting, fishing, gathering of bush tucker) takes place (see [7.1.1] – [7.2.6]).
b.   Teaching children about traditional law and customs, the techniques of conducting hunting, fishing, gathering and other activities, and about the significance of areas and sites of particular significance (affidavit of Joe Huddlestone [8], [11]);
c.    Religious activities such as introducing people to country (affidavit of Joe Huddlestone [13]);
d.   The community of native title holders actively look after country, by visiting and maintaining sites (Affidavit of Joe Huddlestone [13], [14]). This activity is conducted by individuals with specific responsibility for that area or those sites.

These activities occur over some or all of the licence area, and in its vicinity:
e.    In the Dry season Wagiman go hunting in the licence area (affidavit of Joe Huddlestone [9], [10]);
f.    In the West season, Wagiman stop the car by the side of the Stuart highway or the old railway line and walk in to the licence area to go hunting (affidavit of Joe Huddlestone [8]).
g.   In the Wet, members of native title claim group, including Joe Huddlestone and three other married men and their kids, take two cars up the Stuart Highway, or along the old railway, and park them at different places on the highway. The men circle around from one car to the other, hunting while they walk. These circles are generally between the Stuart Highway to the south, the old railway line to the north, Hayes Creek to the west. This area includes the licence area and the proposed ELA 10172, (10172 transcript pages 35-37, 53).
h.   Hunting also occurs in this area in the Dry. There are kangaroos, porcupines and bush tucker in the area of the proposed ELA 10172 in the Dry (10172 Transcript pages 35, 54-55). It can be inferred that hunting also occurs in the Dry in the licence area.
i.     There is a fishing place in the licence area, on the McKinlay River, where it meets the road up to Burrundie. It is used in the Dry (affidavit of Joe Huddlestone [10]).
j.     There is a fishing area at Burrundie, McKinlay River or in the Grove Hill area (10172 transcript pages 36, 54). These areas are in the general vicinity of the licence area, but outside the area of the proposed ELA 10172 (10172 Transcript page 69).

These activities occur regularly and are carried out by more than isolated members of the native Title claim group:
k.   Wagiman go hunting in the licence area in the Dry season and in the wet season (affidavit of Joe Huddlestone [8] - [10]).
l.     In the Wet season, often there are 8 or 9 married men and some boys hunting. Women are left at the fishing area. They take their children and grandchildren (affidavit of Joe Huddlestone [8]). They go hunting in the Dry as well (affidavit of Joe Huddlestone [9]).
m.     Joe Huddlestone, his wife Maureen, his nephew, his daughter, and her three children went fishing in the licence area on 21 April 2002. Joe Huddlestone goes at other times in the Dry (affidavit of Joe Huddlestone [10]).

The government party in its Contentions in Reply in DO02/46 states:
[55]Although Burrundie and Union Town are identified in paragraph 4 of the Attachment A of the Form 4 as relevant communities located “in or near the ELA” no mention is made of them in the Objectors Contentions. Rather, Pine Creek and Kybrook Farm are adopted therein. In any event, both these are more than 25 kilometres distant from the proposed licence area. In addition, uncertainty remains as to [sic: whether] Burrundie or Union Town are, wholly or partially, a community of native title claimants, the number of residents who reside there, and whether such residence is seasonal or permanent.

It is clear that activities under the proposed exploration licence will not be likely to interfere directly and physically with the communities at Pine Creek and Kybrook Farm (more than 25 kilometres from the licence area), and there is no evidence as to Union Town (12-15 kilometres south-east) or Burrundie (8 kilometres north-west), albeit that Grove Hill Road, which runs from Union Town to Burrundie, passes through the licence area.
The evidence does establish that members of the native title claimant group in the Mary River West claim engage from time to time (in both the Dry and the Wet) in physical traditional community or social activities ranging over an extensive area bounded roughly by Pine Creek in the south, Hayes Creek in the north, the Stuart Highway to the west and the railway corridor to the east. Within that broad area is included activity on the Mary River West claim portion of the licence area, and on parts of ELA 10172 located about 7 kilometres to the west (the subject of Objection Application DO01/62). In his affidavit Mr Huddlestone states that what he said about hunting and fishing on the area of ELA 10172 also applies to the area of ELA 22957 (paragraph [7]).
Several points emerge from the evidence about community and social activities. First, so far as the licence area is concerned, the evidence is confined to the Mary River West portion of it. Secondly, the evidence (as distinct from generalised contentions) says very little about how the grant of the exploration licence is likely to interfere with those activities. Paragraph [14] of the affidavit states that ‘If white fella go there and damage country maybe they damage the water’. This is more likely to be apprehension about mining than exploration, and is not at all specific about location. Thirdly, there is evidence provided by the government party about extensive previous exploration within the licence area, but there is no evidence by the objectors that this has interfered with community or social activities. Fourthly, if exploration activity should temporarily clash with the traditional activities, then there appears to be an extensive area of other country available, at least to the Mary River West claimant group.
Importantly, the legislative and administrative regulatory regime now in place to control the conduct of exploration activities is designed to avoid or minimize any adverse impact with respect to all of the criteria provided by section 237. This regime cannot be regarded as an automatic and perfect safeguard, but in the absence of some particular circumstance revealed by the evidence, the consultative processes and presumption of regularity as to the observance of the regime serve to render unlikely the occurrence of substantial interference within the meaning of section 237(a). The provisions, requirements and effect of the regime have been considered and stated repeatedly in recent expedited procedure determinations. I shall not again repeat them here, but instead incorporate by reference the observations in Billy Coolibah and Others on behalf of the Gurdanji and Garawa Peoples/Ashton Mining Limited/Northern Territory, NNTT DO01/61, Member Williamson QC, 5 December 2002 at [33] to [37], and Billy Coolibah and Others/Ashton Mining Limited/Northern Territory, NNTT DO01/57, Member Williamson QC, 21 October 2002.
In addition to the statutory and administrative regulatory regime, there is in evidence statements by the grantee party attached to a letter 12 August 2002 setting out its policies with respect to the criteria in section 237 and the processes laid out in the government party’s regime. In short, the policies require observance of the requirements of the regime, with emphasis upon enquiries, notification and consultation. There is no evidence (or other material of which I am aware) before the Tribunal to cast any doubt upon the intention of the grantee party to act in accordance with its policies.
On the evidence, I find that there are relevant community or social activities by members of the Mary River West native title claim group upon a significant part of the licence area, amongst other places within the local region. However, I also take into account the fact that there is no Aboriginal community located on the licence area, the relatively small size of the tenement, the absence of evidence about interference with traditional activities by extensive exploration over a lengthy period of time in the past, the comprehensive requirements of the statutory and administrative regulatory regime for the conduct of exploration activities in the Northern Territory, the presumption of regularity as to the application and observance of the regime, and the stated and unchallenged policies of the grantee party.
Having regard to the evidence and the above considerations, I find that the proposed act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land or waters concerned, and is an act attracting the expedited procedure within the meaning of section 237(a).

Section 237(b): Areas or sites of particular significance

The issue is whether the proposed act is likely to interfere with an area or site of particular significance in accordance with the traditions of the native title claim group.
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.
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, NNTT WO98/125, 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].
The native title party has submitted an AAPA Site map and details as at 9 August 2002 for the licence area and nearby area. That information discloses one recorded site located on the proposed tenement, 5270-44, which is listed in the site details as Kangurrwal. It is described as ‘Bend in the Mckinley (sic: McKinlay) River, east of the abandoned railway line and the river ford on the Barrundie (sic: Burrundie) Road from Esmerelda (sic: Esmeralda) Farm’ (status 10). It is thus within the Ban Ban Springs claim area (DO02/45).

The native title party Contentions [55-58] state:
[55]There are areas or sites of particular significance that the grant of the exploration licence is likely to interfere with:
a.    Madbins is in the licence area [affidavit of Joe Huddlestone [15]].
[56]     The particular significance of these sites identified by the evidence is:
a.    Madbins is a sacred site [affidavit of Joe Huddlestone [15]].
[57]     The following sites appear on the AAPA Site Register:
a.    Madbin; and
b.   Mangurrwal.
In fact the reference to Madbin was deleted by hand from the affidavit at the time of affirmation, and there is no reference to it on the AAPA Site map or in the appended details.
On the other hand, the map attached to the Contentions of the grantee party shows not only site 5270-44 on the licence area, but also recorded site 5270-47, which is omitted from the AAPA Site map and details. It is described as a creek crossing 1 kilometre west of the old railway line some 5.5 kilometres south of Burrundie siding. It is in the licence area, and within the Mary River West claim area (DO02/45).
The grantee party has also identified a group of heritage area sites just within or just outside the south-east corner of the licence area, but there is no specific evidence by the objectors relating to them.
The native title party’s Statement of Contentions at [63] refers to a site or sites variously named Japenjin, Jimbilang, and Wungwungla. There appear to be differences between AAPA records and evidence by George Huddlestone in Objection matter DO01/19 as to names, locations, nature and dimensions of the site or sites, but it seems that in any event the place or places in question are at or near the Stuart Highway about 4 kilometres south-west of the nearest point of the licence area. It appears that the main point of the contentions and evidence is to demonstrate the possibility of inaccuracy or incompleteness of AAPA site records, in support of an argument that the licence area is likely to have sites not recorded by AAPA, coupled with the proposition that traditional owners might not wish to have important sites disclosed or recorded.
The native title party contends that an area or site is of particular significance because either it has an identified and specific significance that is different to that of other sites or areas of land or waters, or alternatively, all land or waters are significant, and the named area or site is of particular significance in comparison to other land or waters.
I do not accept the blanket nature of those contentions. Plainly the legislation is drawing a distinction between areas and sites that are of ordinary significance, and those that are of special, or more than ordinary, significance in traditional terms: Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 34 per Carr J. It is a question of fact as to whether a given area or site is of particular significance, and where that is a contested issue, must be established by evidence, not mere submission.
The affidavit of Mr Stead (8 October 2001) and his oral evidence (3 December 2001), the affidavit of Mr Foy with the annexure ‘Exploration Activities’ (6 November 2001) and his oral evidence (4 December 2001), the memoranda by Mr Frith ‘Analysis of legislation dealing with significant areas and sites’ (29 April 2002) and ‘Rights conferred under an exploration licence’ (8 October 2001) have all been submitted in evidence in a number of expedited procedure objection inquiries.
At paragraphs [23] to [28] of my Reasons for Determination in Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths and Minerals Pty Ltd/Northern Territory, NNTT DO01/47, 5 August 2002 I have commented at length upon the difficulty of applying these ‘standard’ documents and assessing the weight to be given to them, when there is limited specific factual evidence to support them in the particular matter under consideration. Those comments will not be repeated here, but are incorporated by reference in these Reasons for Determination.
I accept however, Mr Stead’s evidence that the AAPA Register is not necessarily conclusive as to whether a sacred site exists within a given area.
On the other hand, the fact that a site is recorded, or even registered, as a ‘sacred site’ within the meaning of the Sacred Sites Act does not determine whether or not the site is of ‘particular significance’ for the purposes of section 237(b). I refer to and respectfully adopt the analysis of this issue by Deputy President Franklyn in Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and 41, 27 March 2002 at paragraph [81], which is a refinement of the views expressed by Member Sosso in Moses Silver at paragraph [95]. Once again, the issue of significance is a matter for evidence.
In my opinion the affidavit of Mr Huddlestone and any other material provided to the Tribunal does not provide evidence sufficient to identify any area or site, either within the licence area or close to it, as a place of ‘particular’ significance within the meaning of that expression as used in section 237(b).
In any event, whether any area or site within the licence area or close to it is of particular significance, the evidence must reveal that the exploration activity is likely to interfere directly and physically with the area or site. See Moses Silver per Member Sosso at paragraphs [34], [35], [88] and [89].
In Smith v Western Australia (2001) 108 FCR 442 at 450 French J said ‘ … the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of major disturbance of the kind contemplated by s 237’. (In full context, French J was referring to ‘interference’ under section 237(b) as well as ‘major disturbance’ under section 237(c)). I respectfully adopt that approach, as was done by Member Sosso in Moses Silver at [22], citing Little v Western Australia [2001] FCA 1706 per R D Nicholson J at [72] in further support.
The contentions of the native title party place reliance upon the documents written by Mr Frith and Mr Foy to demonstrate the potential range and nature of exploration activity. Reliance is also placed upon the document written by Mr Frith to demonstrate limitations to the protection provided by Commonwealth and Territory sacred sites legislation. However, in paragraph [60] above, reservations have already been expressed concerning the practical application of this material.
The government party contends, correctly in my view, that a contextual risk evaluation should include reference, amongst other things, to 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 concurrent lawful activities on the licence area. The comprehensive regulatory scheme that has been in place since January 2002 has been referred to in paragraph [44] above.
In the present matter one must add to that list the intentions of the grantee party referred to in paragraph [45] above.
The foregoing considerations are relevant to the evaluation of likely interference with areas or sites under section 237(b). It is clear that under the statutory provisions, the administrative procedures and the grantee party’s policies it is most likely that appropriate consultation will take place in order to avoid the risk of interference with any areas or sites of significance, let alone particular significance, and to resolve any concerns.
There are safeguards which lend practical force to the above process. The conditions of the proposed exploration licence will trigger enquiry and consultation, both within and outside the provisions of the Sacred Sites Act. See particularly conditions 1(b), 6, 7, 8 and 25 of the Second Schedule. In addition, Part IV of the Sacred Sites Act provides for offences, penalties and processes in the event of unauthorised work on or use of a sacred site, whether or not the site is registered or recorded. There is a defence based on lack of reasonable grounds for suspecting that a sacred site was there. However, in addition to any legal obligations, the specific matters raised by the objectors in the present material have been brought to the attention of the grantee party. Further, the grantee party has declared its intention to engage in consultation with Aboriginal parties and take into account their concerns, pursuant to its declared policies.

Conclusion as to section 237(b)

On the evidence, it seems unlikely that exploration activities on the licence area, or associated activities off the licence area, will be permitted to occur at a place or in a manner that is likely to interfere with an area or site of particular significance at or in the vicinity of the licence area. I am satisfied that there is no real chance or risk that the proposed act will interfere with an area or site of particular significance, in accordance with their traditions, to the native title claim group. In my opinion, the proposed act is an act attracting the expedited procedure within the meaning of section 237(b) of the Act.

Section 237(c): Major disturbance to land or waters

The issue is whether the proposed act is likely to involve major disturbance to any land or waters concerned, or create rights whose exercise is likely to involve such disturbance.

The native title party contends that this will be so, and that therefore the act is not one that attracts the expedited procedure.

The Tribunal has previously discussed the criteria applicable to section 237(c), and I have done so in Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, 15 July 2002. At paragraph [101] of that Determination the following is stated:
The key to section 237(c) is the concept of ‘major disturbance’, whether the first or second branch of the section is applicable. This expression was considered by the Full Court of the Federal Court in Dann v Western Australia (1997) 74 FCR 391. It held that the interpretation of the expression is a question of ordinary statutory construction. In Gabriel Hazelbane Deputy President Franklyn summarised the views of the Court [and expressed his own conclusion] as follows:
As Wilcox J observed, the word ‘major’ is an adjective of degree which requires the Tribunal, in determining whether a given envisioned disturbance is ‘major’, to make a value judgement, giving the term ‘major disturbance’ its ordinary English meaning, considering the matter of degree from the viewpoint of the community generally, its effect on local people being particularly important. Tamberlin J observed that there is no justification for excluding the views of any section of the community nor for suggesting that the views of any particular section, in all circumstances, prevail. “The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or water can be properly categorised as ‘major’”; and, “It is necessary to take into account the views and concerns of Native Title holders but the importance and weight to be assigned to those matters will vary in each particular case according to the circumstances and evidence produced”. Nicholson J held that the expression “should be understood as an ordinary English term and given its ordinary meaning as understood by the whole of Australian community, including Aboriginal people”. It is clear from the judgements that the views of the Aboriginal people must be considered having regard to the circumstances and evidence adduced.

I respectfully agree with the conclusion by Deputy President Franklyn that the views of the Aboriginal people must be considered, but that this must be done in the context of the particular circumstances and the actual evidence.

In Arthur Que Noy at paragraph [43] Member Sosso states:
the regulatory regime … goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and to native title rights and interests are minimised as far as is practicable in the circumstances. Nevertheless despite the advanced and proactive nature of this regime, it is never a complete response to a predictive assessment by the Tribunal under section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant and has been raised), and such other issues as may be pertinent.

It is important to keep in mind the differences between sub-sections (a), (b) and (c) of section 237. Even if a proposed act is not likely to interfere in the ways specified in sub-sections (a) or (b), it could still be likely to involve major disturbance of the land or waters concerned.
In this matter, the evidence by the native title party about likely major disturbance on the licence area does not go beyond the ‘generic’ material from Mr Frith and Mr Foy and the very limited evidence by Mr Huddlestone with respect to the licence area.

In paragraph [60] above I have already referred to the difficulty of giving the material from Mr Frith and Mr Foy specific application to the licence area, in the absence of specific supporting evidence.

Some concerns are expressed by Mr Huddlestone at paragraphs [13] and [17] of his affidavit, but they do not go to the question of whether it is likely that major disturbance will occur. Given the processes for consultation that have already been described with respect to section 237(b), the fact that Mr Huddlestone has brought his concerns to attention makes it less likely that major disturbance will occur, or that any rights created will be exercised in a way likely to involve such major disturbance.
In assessing the likelihood of major disturbance by exploration activities in the licence area, the factors working against that likelihood include:
-   the evidence of previous exploration activities and the lack of specific evidence about any past disturbance in the licence area that may properly be characterised as ‘major’ (between 1983 and 2002 there were some 34 exploration licences, 4 authorities to prospect and 62 mineral claims or leases whose terms have expired or otherwise ended; and there are some 29 current mineral tenements);
-   the absence of any material indicating that the licence area has particular environmental or geological features that call for special consideration;
- the requirements of sections 35 to 37 of the Mining Management Act that exploration involving ‘substantial’ disturbance must not be carried out unless an Authorisation is first obtained, and that conditions may be imposed requiring the grantee to minimise disturbance;
-   an argument that ‘major’ disturbance involves a greater degree of disturbance than ‘substantial’ disturbance;
-   the difference in nature between the proposed exploration activities and mining activities, and the lesser likelihood of ‘major’ disturbance in exploration activities (thus answering some of the concerns expressed by Mr Huddlestone);
-   the provisions of the consultation and complaint provisions of conditions 6 and 25 of the Second Schedule conditions;
-   the regime of statutory provisions, conditions and regulatory processes that not only are applicable, but are brought to the attention of the grantee party (particularly those in the Second Schedule);
-   the fact that the concerns of the native title party as to the potential impact of exploration activities have been brought to the attention of the grantee party;
-   the limited nature of the work program proposed by the grantee party; and
-   the stated intentions of the grantee party to comply with all regulatory requirements and to observe its own policies.
As to the concerns about exploration generally that have been expressed in the evidence and contentions of the native title party, in my opinion there is no sufficient evidence to support the likelihood of major disturbance in the licence area as the result of exploration activities in the sense explained in Dann v Western Australia, under either limb of section 237(c).
On the evidence, I am satisfied that there is no real chance or risk that the proposed act will 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. In my opinion, the proposed act is an act attracting the expedited procedure within the meaning of section 237(c) of the Act.

Conclusion as to section 237 generally

I have examined and taken into account all of the evidence that has been submitted, together with all of the contentions by each party. The evidence includes that which is specific to this particular inquiry, as well as the government party’s Standard Exhibit and the Standard Documents submitted by the native title party. I have also taken into account the findings and commentary on the interpretation of the Act and other legal issues set out in recent Tribunal reasons for determination relating to objection inquiries in the Northern Territory.
With respect to the requirements of section 237, I am satisfied that the grant of the proposed exploration licence is an act not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land or waters concerned; is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the holders of native title in relation to the land and waters concerned; and 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.

DETERMINATION

The determination of the Tribunal is that the grant of Exploration Licence 22957 to Imperial Granite and Minerals Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993 (Cth).

Professor Douglas Williamson QC.

Member

24 December 2002