Gabriel Hazelbane and Others on behalf of the Warai and Angwinmil Peoples/McCleary Investments Pty Ltd/Northern Territory

[2002] NNTTA 203

NATIONAL NATIVE TITLE TRIBUNAL

Gabriel Hazelbane and Others on behalf of the Warai and Angwinmil Peoples/McCleary Investments Pty Ltd/Northern Territory, [2002] NNTTA 203 (11 September 2002) 

APPLICATION NO:          DO01/48

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

-  and  -

IN THE MATTER of an inquiry into an expedited procedure objection application

Gabriel Hazelbane and ors on behalf of the Warai and Angwinmil Peoples (Native Title Party)

-  and  -

McCleary Investments Pty Ltd (Grantee Party)

-  and  -

Northern Territory of Australia (Government Party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Prof. Douglas Williamson QC
Place:  Melbourne
Date:  11 September 2002

Catchwords:               Native title – future act – proposed grant of exploration licence – expedited procedure objection 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 objection – determination that the grant of exploration licence is an act attracting the expedited procedure.

Legislation:                 Native Title Act 1993 (Cth) ss 29, 32, 151, 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:  Smith v Western Australia (2001) 108 FCR 442

Dann v Western Australia (1997) 74 FCR 391

Cheinmora v Striker Resources NL (1996) 142 ALR 21

Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, Member Sosso, 1 February 2002

George Huddlestone and Others/Stephen Darryl Moffatt/Northern Territory, NNTT DO01/19, Member Sosso, 2 February 2002

Michael Page/Arafura Resources NL/Northern Territory, NNTT DO01/21, 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

Waanyi Jambarana and Waanyi Liliriji/Ashton Mining Ltd/Northern Territory, NNTT DO01/11, Member Stuckey-Clarke, 14 May 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

Wakaya People/Pilbara Chemical Corporation NL and Rare Earths and Minerals Pty Ltd/Northern Territory, NNTT Doo01/47, Member Williamson QC, 5 August 2002

Listing Hearing date:     12 December 2001 (‘papers’ finalised 22 January 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:           Mr John Goulevitch, McCleary Investments Pty Ltd

REASONS FOR DETERMINATION

Background

[1] On 7 February 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 9823 (‘the proposed tenement’) to McCleary Investments 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.

[2]  The proposed tenement area (‘the licence area’) comprises 17 blocks (approximately 60 square kilometres) located west of Mount Masson and covering part of Perpetual Pastoral Lease (‘PPL’) 1111, known as Ban Ban Springs.  It is an irregular shape:  the longest distance north-south is about 15 kilometres, and the longest distance east-west is about 7 kilometres.

[3]  On 13 March 2001 a native title determination application (DC01/21, D6021/01) was filed with the Federal Court of Australia (‘the Ban Ban Springs application’).  The applicants are shown as Gabriel Hazelbane and Others on behalf of the native title claim group comprised of the Warai and Angwinmil Peoples (‘the native title claim group’).  The application was accepted for registration and entered on the Register of Native Title Claims on 25 May 2001.  The Ban Ban Springs application remains on the Register, and wholly covers the licence area.

[4] An application (Form 4) objecting to inclusion of the proposed grant in an expedited procedure was lodged on 7 June 2001 within the statutory time period, pursuant to section 32(3). The objectors are the said Gabriel Hazelbane and Others on behalf of the native title claim group.

1. There was no application by any party that this matter required an ‘on country’ hearing, and no party requested the Tribunal to hear oral evidence. At a Listing Hearing held on 12 December 2001 parties agreed that the inquiry could be dealt with ‘on the papers’. As indicated below, the ‘papers’, including the Standard Exhibit and ‘generic’ material, were not finalised until 22 January 2002. The Tribunal is required pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In this instance, having regard to the material before the Tribunal and the submissions by the parties, I formed the view that it was not necessary to hold a hearing, and directed that a determination be made on the documents.

Contentions

1. The following contentions were submitted to the Tribunal:

   (1)   Government party Statement of Contentions, 31 October 2001.

   (2)   Native title party Statement of Contentions of Objector, 7 November 2001.

   (3)   Grantee party Statement of Contentions, 13 November 2001.

   (4)   Government party Contentions in Reply, 21 November 2001.

   (5)   Native title party Objectors’ Reply to the Contentions of the Government Party, 21 November 2001.

   (6)   Native title party Objectors’ Reply to Contentions of Grantee Party, 21 November 2001.

   (7)   Grantee party Reply to Statements of Contentions, 27 November 2001.

   (8)   Extra Contentions of Grantee Party, 14 December 2001.

   (9)   Native title party Objectors’ Reply to Contentions of Grantee Party (27 November 2001, 14 December 2001), 21 January 2002.

   (10)   Grantee party Response to Objectors’ Reply (21 January 2002), 22 January 2002.

Submission of evidence

1. The government party submitted the following evidence:

   (2)   Map marked with

   (i)the proposed licence area;

   (ii)the location of various underlying tenures of land, both within the proposed licence area and in its general locality; and

   (iii)the location of any known Aboriginal communities.

   (3)   Mining tenement documents including

   (i)a copy of the Exploration Licence application, (with financial details in a sealed envelope marked ‘Financial Details-Confidential’, the confidential status of which was lifted by consent on 12 December 2001);

   (ii)a schedule of any current mining tenures covering the same area;

   (iii)details of prior mining tenements granted over the same area, with dates of grant and expiry.

2. The native title party submitted the following evidence:

   (1)Affidavit affirmed by Bessie Coleman (21 November 2001).

   (2)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.

   (3)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.

   (4)Letter dated 29 November 2001 from the Northern Land Council enclosing information provided by the Aboriginal Areas Protection Authority (‘AAPA’), comprising a map showing sites in the vicinity of the licence area registered or recorded in the Register of Sacred Sites as at 22 November 2001, 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 12 December 2001 preserving the confidentiality of this information other than for the purposes of the proceedings in this matter.

3. The grantee party submitted the following evidence:

   (1)Affidavit of John Goulevitch affirmed 14 December 2001, with attachments JG1 to JG7, appended to the Extra Contentions of Grantee Party.

   (2)Unsworn statements of evidence (as distinct from contentions) contained in the Statement of Contentions of Grantee Party, Grantee Party Reply to Statements of Contentions, and Response to Reply of Objector.  Much of the factual material in these unsworn statements is either repeated or referred to and affirmed in the affidavit of 14 December 2001.

4. With the consent of the parties, the following ‘generic’ material was received in evidence at the Listing Hearing:

   (1)   Memorandum by Member Sosso, 16 November 2001 ‘Generic Issues To Be Dealt With’, provided to the parties in expedited procedure objection inquiries DO01/13 and DO01/19.

   (2)   Response by government party, 5 December 2001.

   (3)   Response by Northern Land Council, 6 December 2001 on behalf of the native title party.

   (4)   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.

   (5)   The ‘Standard Exhibit’ submitted by the government party.

5. Since the Listing Hearing, the Northern Land Council has provided a folder of Standard Documents to Contentions of Objector, compiled as at 9 August 2002, to be relied upon as evidence or submissions in all expedited procedure objection inquiries.  The folder includes the affidavits and documents referred to in paragraphs [8(2)] and [8(3)] above, and the transcripts of evidence referred to in paragraph [10(4)].  Given that no grant has yet been made in this matter to the grantee party, it is appropriate to have regard to all relevant material in this folder of Standard Documents.

6. As at the date of the Listing Hearing, the ‘Standard Exhibit’ referred to in paragraph [10(5)] above comprised a folder of ‘Particulars’ provided on 22 November 2001.  Since then, the folder has been updated, as at August 2002.  The government party relies upon the contents of the Standard Exhibit in all expedited procedure objection inquiries.  Copies of the exhibit are ‘on file’ with the Tribunal, the Northern Land Council, the Central Land Council, and are available for reference by proposed grantees.  In brief, the contents comprise extracts from legislation, standard conditions that are contained in every grant of an exploration licence, and brochures, booklets, guidelines and other information concerning the conduct of exploration and mining in the Northern Territory.  The relevant material is brought to the attention of applicants for the grant of an exploration licence, either prior to or at the time of grant.  Given that no grant has yet been made in this matter to the grantee party, it is appropriate to have regard to the Standard Exhibit in its updated form, as at August 2002.  The current contents of the Standard Exhibit are referred to in detail at paragraphs [28] and [29] below.

The expedited procedure provisions

1. Subdivision P of Division 3 of Part 2 of the Act applies to certain future acts, including the conferral of specified mining rights, which by definition include exploration rights (section 253). Subdivision P establishes a regime for negotiation amongst prescribed parties, and if agreement is not reached, then a determination is to be made by an arbitral body. If the procedures of the subdivision are not complied with, the future act will be invalid to the extent that it affects native title.

2. Section 32 of the Act applies if the notice given under section 29 of intention to do the act (in this matter, to grant an exploration licence) includes a statement that the government party considers that the proposed act is an act attracting the expedited procedure as defined in section 237. If the proposed act is one that does attract the expedited procedure, then the negotiation or determination process provided by subdivision P is no longer applicable, and the proposed act may validly be done.

3. In the present matter the objectors have lodged an objection pursuant to section 32(3) against the inclusion of the statement. If the objection is upheld, then the further provisions of subdivision P remain applicable.

4. 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.

Legal principles

1. 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/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], [86] to [107], and [135] to [140] 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 (‘Billy Coolibah’).

Native title party evidence

1. The affidavit of Bessie Coleman states:

   I, Bessie Coleman of Pine Creek Town Camp, Pine Creek in the Northern Territory of Australia, do solemnly and sincere declare and affirm as follows:

   1.The area of Ban Ban Springs (D6021/00) native title determination application includes the area of ELA 9823.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “BC-9823” is a map of the ELA.

   2.There are a lot of sites on the map from men’s side, so I can’t know them.  But them fellas ought to know and the young ones need to be taught.  My uncles probably put those sites on the map when they were still alive.

   3.I grew up at Mary River Station until my teenage years.  I worked from 15 at Mary River Mine.  My mum and my uncle were there.  She took us all around there, digging yam and looking for porcupine.

   4.I got involved in mining in the fifties and sixties.  I’m not going to see that happen again.  They leave rubbish everywhere.  That exploration will make it hard for our fishing places.  Pollution and cyanide or any dirty water getting into our rivers.  We want to go along and see what they are doing, and make sure they are doing the right thing.

   5.Me, I don’t like mining.  Them men camping out there and drilling everywhere; I worry about pollution, them leaving rubbish everywhere.  Makes us not want to go.  I don’t like seeing that flagging and tape everywhere. If I see it I won’t go fishing, I won’t take our kids there with all that chemical stuff.  I am worried about exploration putting things in the water and killing off fish and animals.  I don’t want the kids to go swimming there.   don’t want them eating fish or turtle; it might make them sick.  Are they going to test the fish and foods we eat up there?

   6.To me it’s all the same thing: mining, exploration, digging – it’s all disturbing the country.  Drilling disturbs those hunting areas and changes the country.  It will change the way we hunt on country.  We don’t follow roads.  We go through the bush.  We know the country.  We go by motor car and foot walking to catch porcupine and kangaroo.

   7.A lot of people used to camp around Frances Creek, and at Burrundie Siding and Mount Wells.  I’ve been on the road from Mount Wells to Frances Creek and on to Mary River.  I did fencing with my old husband, Geoffrey Coleman.  We used to go fishing along Frances Creek, a long time ago.  Mum used to take us.  We walked from Mount Wells to Frances Creek to Mary River.  We followed the railway line or a bush track.

   8.We used to walk right through from Burrundie to Pine Creek.  We go fishing on the road from Mount Wells to Mount Jessup and to Mary River Mine.  It’s Mount Harris Mine on the map.  We use the road through the northern part of the ELA area to go fishing and hunting.  We still go fishing on the McKinlay River right through to that old Mount Jessup Mine and Billy Can Creek, through to Ming-gala Crossing, on the Mary River up from Mary River Mine.  We go up there all the time with the kids – weekends, holidays, whenever we want to go.  We go in a motor car.

   9.We drive through and show country to the kids.  I am worried about exploration putting things in the water and killing off fish and animals.  I used to take Lazarus Ford and John Lee and all the other kids out there when they were young – just little kids.  We’d go for hunting, fishing, sugarbag.  We still take the young ones out whenever we feel like it – maybe school holidays or weekends.  School breaks we go all the way out.

The map referred to in paragraph 1 above is attached to the affidavit.

1. The Statement of Contentions of the native title party does not assert that there are Aboriginal communities within the licence area, but states that there are several “in the vicinity” including Pine Creek Town Camp.  No other community is identified.  The government publication “Northern Territory Aboriginal Communities” (15 April 2002) and the accompanying “Aboriginal Communities Map” (updated 14 February 2002) show that Pine Creek Town Camp (reference number 640) is located about 45 kilometres south of the licence area.  The government publication classifies a town camp as being any size, situated within or adjacent to a major urban area. 

2. The Ban Ban Springs application states that the native title claim group is comprised of the Warai and Angwinmil Peoples who are traditionally connected with the area claimed.  They are descended from two identified Warai persons and one identified Angwinmil person.

3. The information provided by AAPA does not list any registered or recorded Aboriginal sacred sites within the licence area.  Listed sites within the general region include the following nearest to the licence area:

   -   Garremben [aka Nyaporr], site 5270-45, status 30, about 30 kilometres southwest of the licence area;

   -   Muduk, site 5271-1, status 12, about 30 kilometres northwest;

   -   Three sites, status 10, about 20 to 25 kilometres to the south and southwest;

   -   One site, status 10, about 22 kilometres to the north;

   -   A cluster of sites, status 5, about 18 to 20 kilometres to the southwest.

The Affidavit of Hugh Joseph Bland (30 November 2001) tendered in NNTT DO01/13 and included in the ‘generic’ material, explains the meaning of the status code used by AAPA.  Status 10 indicates that the AAPA has become aware of the existence of a site, it is recorded, and deemed to be significant according to Aboriginal tradition, but has not been evaluated or placed on the Register.  If research then indicates that a site is not a ‘sacred site’, it is downgraded to a status of less than 10.  Status 12 indicated that the site is recorded, not yet registered, but that research has tended to confirm the location and establishes the significance of the site.  Later steps will see the status continue to rise as the site passes through stages of the registration process.  Status 40 indicates a registered site.

1. The affidavit of Mr Stead (8 October 2001) and his oral evidence (3 December 2001) and the affidavit of Mr Foy (6 November 2001) with the annexure ‘Exploration Activities’ and his oral evidence (4 December 2001) have now been submitted in evidence in standard form in a number of expedited procedure objection inquiries.

2. Similarly with the memoranda prepared by Mr Frith setting out his analysis of the relevant mining legislation ‘Rights conferred under an exploration licence’ (8 October 2001) and the relevant sacred sites legislation ‘Analysis of legislation dealing with significant areas and sites’ (7 November 2001).

3. I have commented at length upon the relevance of the evidence or submissions made by Messrs Stead, Foy and Frith, and the significance or weight to be attached to them in the presence or absence of specific factual evidence, 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, Member Williamson QC, 5 August 2002.  Those observations will not be repeated, but are adopted in the present matter.

Government party evidence

1. The map submitted by the government party shows that the licence area lies wholly within Ban Ban Springs PPL 1111.  As pointed out in the native title party’s Statement of Contentions, the road from Mount Wells north and north-east to the Mary River passes through the licence area near Jessups Mine.  The grantee party states that this is a public, maintained, road. 

2. Information submitted by the government party states that there are no other current mining tenements on the licence area.  However, there have been numerous past mineral tenements.  These are referred to in detail later.

3. There are numerous current Exploration Licence Application areas to the south of the licence area, and one immediately to the north.

4. The government party has submitted its Standard Exhibit.  As noted in paragraph [12] above, the Standard Exhibit was updated in August 2002.  This was done principally to take into account the modifications introduced as from 1 January 2002 by the Mining Management Act 2001, concerning substantial disturbance. The Standard Exhibit now includes (amongst other things) the following material:

   (1)A standard letter, to accompany the exploration licence.  In it particular attention is drawn to the provisions of the Northern Territory Aboriginal Sacred Sites Act 1989 concerning consultation with the Aboriginal Areas Protection Authority (AAPA); the terms of clause 6 (formerly clause 18) of the Second Schedule, which requires meeting with native title claimants before commencing exploration activities other than reconnaissance; the requirements for prior authorisation of any proposed substantial disturbance activities; and the provisions in clause 4 of the First Schedule as to compensation payable to a native title holder for certain prescribed mining acts.

   (2)A pro-forma exploration licence, which includes the terms and conditions set out in the First and Second Schedules. 

   (3)A copy of the Second Schedule conditions.  These contain a number of provisions particularly relevant to the protection of native title rights and interests that might otherwise be affected by proposed exploration activities.  The conditions are imposed by the Minister pursuant to powers conferred by section 24A of the Mining Act.  The conditions in force as at August 2002 are a modification of the earlier version, and take account of the new substantial disturbance authorisation requirements.  There have also been some changes to the earlier sequence of conditions, to produce a more methodical grouping of topics under various sub-headings.  The current Second Schedule conditions are reproduced below:

   General Principles

   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; or

   (b)     any interference with areas or sites of particular significance, in accordance with the traditions or registered native title claimants or holders.

   2.The Licensee shall carry out its activities in such a way as to minimise disturbance to 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 and other natural resources;

   (c)   pollution, including soil, water and atmospheric pollution;

   (d)     the incidence and effects of soil erosion.

   3.Subject to the provisions of the Mining Act and the Mining Management Act, the Licensee shall in the course of their operations remain subject to the provisions of other relevant legislation.  The Licensee shall ensure that all exploration personnel and their contractors and agents are familiar with such legislative requirements.

   4.If and when the Licensee applies to the Minister for a lease which would allow productive mining, any registered native title claimants or holders are to be informed of this fact in writing so as to signal that another future act process may follow which allows them to exercise procedural rights.

   5.To the extent possible the Licensee should employ persons and contractors resident in or around the licence area and give them the opportunity of quoting or tendering for contract work.

   Consultations with Native Title parties

   6.    

   (a)     The Licensee shall, prior to the commencement of exploration activities other than reconnaissance, convene a meeting on the licence area (or the nearest convenient locality) with registered native title claimants or holders to explain the exploration activities.  The Licensee may also invite the relevant pastoral lessee(s) or landholders to this meeting.

   (b)     Notice of the meeting shall be by letter and shall be posted to the registered native title claimants or holders and the representative body not less than 17 days before the meeting and shall nominate the date, time and place of the meeting.

   (c)     The Licensee must have regard to representations made to it at the meeting regarding any aspect of the exploration activities which raises concerns.  These representations may deal with access procedures to particular areas of land within the licence area.

   Site Protection

   7.All exploration personnel and their contractors and agents shall be instructed on the legal necessity to protect sacred sites and other significant archaeological sites and structures which may exist within the licence area.

   8.Prior to carrying out any work in the licence area the Licensee must consult with the Aboriginal Areas Protection Authority and inspect the Register of Sacred Sites.  A Licensee wishing to carry out work may apply for an Authority Certificate.

   Authorisation – Substantial Disturbance

   9.Pursuant to s.166(1A) Mining Act, all exploration licences are granted subject to the condition that the holder of the licence or the holder’s agent must also hold the relevant Authorisation in accordance with the Mining Management Act before carrying out on the licence area any exploration operations or works involving substantial disturbance (such as drilling, costeaning, gridding, bulk sampling, camp establishment or road construction).

   10.Pursuant to s.35 & 37 Mining Management Act, an application for such Authorisation is required prior to the commencement of activities and is to be accompanied by the Mining Management Plan for the activity.

   (a)   The Mining Management Plan is to include particulars on the management of environmental issues.

   (b)     The Minister may refuse grant of an Authorisation.

   (c)   A granted Authorisation is subject to the condition that the operator must comply with the current Mining Management Plan, submit a security bond and any additional conditions that the Minister may determine.

   11.Notwithstanding the conditions of an Authorisation in accordance with the Mining Management Act, the Licensee shall in addition adhere to the conditions stated herein.

   Minimising of Environmental Impact

   12.The Licensee shall not bring firearms or traps onto the licence area and shall not take or kill any wildlife.

   13.All structures, facilities, survey markings or other related infrastructure shall be of a temporary nature and shall be removed from the area at the completion of the exploration programme unless approved otherwise in writing by the Minister.

   14.The Licensee shall not use fire, unless approved in writing by the Minister, except for the purposes of preparing food or heating water and appropriate steps shall be taken to prevent bush fires.

   15.The Licensee shall not construct new vehicle tracks unless unavoidable.  New tracks should be constructed at the minimum width possible to conduct the exploration programme, avoid long straight stretches, and be constructed with sufficient furrows to provide appropriate drainage.

   16.The Licensee shall keep clearing and/or disturbance of vegetation to a minimum; with particular care taken in regard to preserving mature trees and vegetation along watercourses.

   17.The Licensee shall take such steps as are reasonably practical to prevent the spread of noxious weeds, including the washing down of vehicles and removal of grass seeds before moving vehicles and equipment to a new area.

   18.No sites or structures that may have historic significance shall be disturbed or interfered with in any way unless prior written approval has been given by the Minister.

   19.The Licensee shall take such steps as are practical to minimise disturbance to the soil, rocks, rock formations, creeks and watercourses.

   20.The Licensee shall take all precautions necessary to prevent contamination of underground and surface waters in the licence area.

   21.Where artesian groundwater is encountered during drilling, the Licensee shall advise the Minister of its occurrence and protect the water from wastage, pollution, deterioration or undue depletion.

   Environmental Rehabilitation

   22.Following any soil disturbance, and subject to the Mine Management Plan, the Licensee shall replace topsoil as near as possible to its original profile and contour.

   23.The Licensee shall remove all rubbish and waste from the licence area and shall comply with directions of the Minister regarding disposal.

   24.To the extent possible the Licensee should choose drillhole and excavation sites to minimise environmental impact and, subject to the Mine Management Plan, after completion of drill holes, the collar should be sealed off and casing plugged. Guidelines for this activity are at item 15. of the Mining Operation Pack.

   Complaint Mechanism

   25.Should any native title claimant or holder lodge a written complaint with the Minister that exploration activities are being conducted in a manner that adversely affects native title rights and interests in the licence area, the Minister may do one or more of the following:

   (a)   seek an explanation in writing about the matter from the Licensee;

   (b)     request the Licensee attend a meeting with the Minister to discuss the matter;

   (c)   request the Licensee attend a conference with the Minister and the complainant with a view to resolving the matter;

   and, having done one or more of the foregoing, may do one or more of the following:

   (d)     direct the Licensee to carry out rectification work;

   (e)   carry out rectification work at cost to the Licensee in accordance with s.166(3) of the Mining Act;

   (f)   subject to the Mining Act, take any other action, including the cancellation of the licence, as the Minister considers appropriate.

   DEFINITIONS

   “Licensee” means the grantee of the exploration licence and includes it workers, employees, contractors, agents and any other person appointed by the Licensee as operator of the site pursuant to s.10 of the Mining Management Act.

   “Minister” means the Northern Territory Minister for Business, Industry and Resource Development or Delegate.

   (4)A Mining Operation Pack, dated 7 May 2002, prepared by the Mines Division.  It comprises 20 sets of documents, including an electronic version.  The pack includes information application forms, pro-forma Mining Management Plan, report forms and other documents, which will assist proponents to submit material in support of an application for authorisation under the Mining Management Act, and to conduct operations and provide reports in compliance with the various obligations of a tenement holder.  An advisory note refers to the Sacred Sites legislation.

   (5)An Information Sheet, ‘Aboriginal Areas Protection Authority – Sacred Sites Avoidance in the Northern Territory’.  This has also been updated as at August 2002. It notes that Northern Territory law provides protection for all places of significance according to Aboriginal tradition (sacred sites or sites of significance) whether or not they have been ‘declared’, ‘registered’ or otherwise officially recorded.  The document explains the procedures under the Northern Territory Aboriginal Sacred Sites Act 1989. Information may be sought from the AAPA on the existence of sites within a given project area. It is pointed out that the information held by AAPA is limited to existing records of sites. The procedure for obtaining an Authority Certificate is explained. If application is made for a Certificate (which indemnifies the holder against prosecution under the Act if the holder has acted in accordance with the provisions of the Certificate), there will be consultation with Aboriginal custodians for the area in question, meetings arranged between the custodians and the proponent, liaison with all parties, and assistance provided for reaching an appropriate agreement about site avoidance. If, following consultation, the Authority determines that the proposed work or use of the land could proceed without substantive risk of damage to or interference with a sacred site on or in the vicinity of the land, or an agreement has been reached between the custodians and the applicant, the Authority shall issue the Certificate. The Certificate may include conditions on which the work may be done. The information sheet also draws attention to the provisions of the Northern Territory Heritage Conservation Act 1991, which protects skeletal remains, movable objects, stone tools and other material items.

   (6)A memorandum dated 16 January 2002, ‘Contentions on Mining Management Act 2001’, together with a copy of the Act (no. 43 of 2001), the Mining Management Regulations (no. 50 of Regulations 2001) and the Mining Amendment Act 2001 (no. 44 of 2001).

   [29]     The Standard Exhibit also contains extracts from, or references to, provisions of the mining legislation that are applicable to the grantee of an exploration licence.  They include the following:

   (1)Section 24 of the Mining Act.  This provides that the licensee will:

   (b)     not extract or remove more material than amounts for authorised sampling purposes;

   (j)     conduct activities in such a way as not to interfere with existing roads etc or the lawful activities or rights of any person on or in relation to land adjacent to the licence area;

   (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, except in accordance with that law.

   (2)Section 24A.  This gives the Minister general powers additional to those derived from sections 24 and 166, to impose conditions in an exploration licence.  This section provides a statutory foundation for the conditions in the Second Schedule.

   (3)Section 166.  This imposes general conditions upon various tenements, including exploration licences.  Of particular note is subsection 166(1A), effective 1 January 2002.  It provides that all exploration licences are granted subject to the condition that the holder of the licence must also hold the relevant Authorisation before carrying out on the licence area any exploration operations or works involving substantial disturbance.

   (4)Sections 35 to 37 of the Mining Management Act 2001, effective 1 January 2002. These provide a scheme for regulation of substantial disturbance, replacing the regime previously contained in conditions (e) to (g) in section 24 of the Mining Act.  For the purposes of this Act, ‘mining activity’ by definition includes exploration for minerals, and corresponding definitions apply:

   -       Section 35(1) provides that the operator for a mining site must not carry out mining activities on the site unless it has first been granted an Authorisation.  However, section 35(5) provides that section 35 does not apply to the carrying out of exploration for minerals unless it is to involve substantial disturbance of the surface of the site.  If substantial disturbance is contemplated, then a mining management plan must be submitted (section 35(3)).

   -       Section 36(2) provides that before the Minister may grant an Authorisation, he must be satisfied that the management system will promote protection of safety and health of persons and the environment on site, and that the management of the mineral resources will be in accordance with good mining practice.

   - Section 37(1) provides that an Authorisation may be subject to conditions specified.

5. The evidence of the Government party also includes the affidavit of Timothy Milne Gosling (5 December 2001) and the extensive annexures to it, originally tendered by the government party in objection inquiry DO01/13, and included in the ‘generic’ material provided in the present matter.  The affidavit is referred to in the memorandum listed at paragraph [28(6)] above. Mr Gosling’s affidavit was sworn before the legislative changes that operate as from 1 January 2002.  It deposes to the processes under section 24(e) of the Mining Act for approval of activities likely to result in ‘substantial disturbance’.  These processes were aimed at minimising damage, and provided for rehabilitation.  As from 1 January 2002 a more comprehensive substantial disturbance regime has been in place, by virtue of the Authorisation process set out in the Mining Management Act 2001 (NT).

6. There is no reason to doubt that the views put in Mr Gosling’s affidavit attesting to the effectiveness of the substantial disturbance regime before 1 January 2002 are equally applicable to the regime in place since then.  Furthermore, as noted by Deputy President Franklyn QC in Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, 27 March 2002 (‘Gabriel Hazelbane’) at paragraph [16]:

   It must be assumed that the Minister and Secretary will administer their obligations under the Acts in accordance with the terms of the Mining Act and Mining Management Act and the philosophy of the Mining Act as apparent in sections 24, 24A and 166 of the Mining Act, and sections 35 to 46 of the Mining Management Act.  The presumption of regularity applies.

I respectfully adopt this approach.  There is no evidence in the present inquiry sufficient, in my view, to rebut the presumption of regularity with respect to the grant of the proposed exploration licence and the subsequent supervision of operations.

The application for grant

1. The government party has submitted the application dated 17 February 1997 by McCleary Investments Pty Ltd for the grant of the exploration licence. A licence is sought for 6 years.

2. The application for grant includes statements by the grantee party that:

   (1)The work program for the first year will involve acquiring aerial photography, research of previous data, sampling stream sediments, BLEG survey and rock chips, totalling a minimum expenditure of $6,500.

   (2)The program for subsequent years will involve seeking a joint venture in year 1, and giving attention to the reported high grade intercept at Big Julie.

   (3)Technical details include initial field work by ‘selfs’ and professional services hired as required.

3. However, the above details as at 1997 appear to have been overtaken by subsequent events.  A proposed program with much higher expenditure is included in Attachment B to the Grantee Party Reply to Statements of Contentions (27 November 2001).  Principal aspects of the proposed activities and budget estimates are as follows:

   (1)First year activity

-	Detailed BLEG stream sediment sampling throughout the title with sample spacing at a maximum of 500 metres along stream.	25,000
-	Detailed geological reconnaissance mapping and rock chip sampling in all anomalous areas identified.	10,000
-	Literature search of previous exploration data, interpretation of Year 1 results and reporting.	2,000
-	Associated administrative and other costs.	13,255
$50,255

(2)Second year activity

-	Gridding, geological mapping and BLEG or minus 40# soil sampling over selected targets.	15,000
-	Drilling (500 metres of shallow RC drilling).	25,000
-	Access and pad construction: 8-10 sites.	10,000
-	Rehabilitation of sites.	6,000
-	Geological services: interpretation and reporting.	3,000
-	Associated administrative and other costs.	17,130
$76,130

1. In the grantee party’s Reply To Statements Of Contentions, it is stated that ‘The proposal for the second year of the licence is very tentative, being conditional on exploration success in the first year of the title and the availability of finance at the time.’  In Mr Goulevitch’s affidavit, in relation to drilling as an exploration activity, it is stated ‘The probability that this exploration stage is reached for any mineral exploration licence is arguably less than 1 in 50-100.’  See also the further statements in paragraph [49] below, and comments there about the assessment of probabilities in this particular matter.

Previous tenements

1. Material provided by the government party includes information from the Department of Mines and Energy as to existing and past tenements on the licence area.

   (1)Current mining tenements:

   There are no current mining tenements within the licence area, other than Holding HLDN20, located close to a northern boundary of the licence area.  A ‘Holding’ is described as ‘a form of tenure that provides a legitimate means of enabling miners, in a “rush” situation, to attend to domestic needs (accommodation), essential activities ancillary to mining (eg a stamp battery) and/or supportive business activities (eg a store, bakery etc)’.  No details are given as to the actual nature and current state of HLDN20.

   (2)Prior mining tenements

   The information from the Department of Mines and Energy lists a number of past tenements over the licence area.  The Grantee Party Reply to Statements of Contentions lists additional past exploration and mining tenements over, or partly over, the licence area.  A totalling of the information from these two sources produces the following:

   (a)Market garden area –

   One:  1973-1993.

   (b)Mineral lease A (Agicondi) – Mining Act 1939-1979

   8:  ranging from first grant 1947 to last expiry 1990.

   (c)Goldmining lease A (Agicondi) – Mining Act 1939-1979

   One:  1977-1997.

   (d)Mineral claim A (Agicondi) – Mining Act 1939-1979

   3:  all granted 1977, last cancelled 1980.

   (e)Mineral lease (Northern)

   16:  one was granted 1974, all others 1980, all have been cancelled (most, if not all in) 1991.

   (f)Mineral claim (Northern)

   38:  ranging from first grant 1983, with 26 cancelled in 1991, 8 expired in 1993, and the others expired between 1996 and 2000.

   (g)Exploration licence

   15:  one was 1972-1973, the others were granted between 1986 and 1995, six expired or were surrendered by 1990, and the others were all surrendered or terminated by 1996.

   (h)Authorities to prospect – Mining Act 1939-1979

   The grantee party states that these previously existed over the licence area, but records have been archived and are not available.

Prior exploration and mining activities

1. The grantee party sets out a summary of previous exploration and mining history, an assessment of prospectivity, and a proposal for exploration of the licence area, in Attachment B to its Reply to Statements of Contentions. Extracts are taken from a report to Arafura Resources NL by consulting geologist Andrew Drummond and Associates Pty Ltd.  The report was prepared from published documents and information on public record.

2. The licence area contains part of the Mount Harris hard rock and alluvial tin field, with historic production from the Jessop’s, Billy Can, Mount Masson, Big Drum and Big Julie mines, and a small gold mine known as Tuohy’s.  The tin mines have operated intermittently since 1942.  Big Julie was still operating in 1986, but has since ceased.  The others ceased operations in 1968.  Except for Tuohy’s, these mines were located to the north of the centre of the licence area.  A map showing these locations is included with the extracts from the consultant’s report.

3. Total production from Jessop’s and Billy Can to end of June 1965 was about 100t of tin concentrate from about 10,000 t of ore.  To 1968 Mt Masson produced 31 t of concentrate from 2,916 t of ore, with only 0.5 t and 1.5 t of concentrate from Big Drum and Big Julie respectively.  Anomalous silver and gold values have been reported at Big Julie.

4. Jessop’s was discovered in 1957, mined for tin in open pit and underground up to 1968, and was subject to drilling, trenching and various forms of exploration by a series of companies in 1963, 1981/2, 1983, 1986, 1987.

5. Other parts of the licence area (and adjacent areas to the north and west) were explored by a series of companies in the period 1986 – 1996.  Activity seems to have been concentrated upon the north-west area (north and west of Jessop’s), and in the south-easterly one third.  Activity has included rock chip sampling, soil sampling, stream sampling and some trenching.

6. On present information contained in the report, it would seem that the most prospective parts of the licence area for the grantee party to explore are in the Mt Masson area (ie in the general area of previous mining activities), in the most northerly two blocks, and in the south in the Tuohy’s mine area.

Further grantee party evidence

1. Reference has already been made to some of the grantee party evidence under the headings of the application for grant (proposed exploration program), previous tenements, and prior exploration and mining activities within the licence area.  Further evidence by the grantee party is referred to below.

2. The Statement of Contentions of Grantee Party dated 13 November 2001 notes that pursuant to agreements dated 8 January 2001 and 21 March 2001 the rights of McCleary Investments Pty Ltd in ELA 9823 were transferred to Arafura Resources NL, which effectively became the grantee party.  The grantee party’s Response to Reply of Objector states that McCleary Investments Pty Ltd was formerly named Star Money Lenders Pty Ltd, and under each name was controlled by Norman Sydney McCleary. Mr McCleary is also a director of, and a major shareholder in, Arafura Resources NL.

3. Documents provided by the grantee party contain facts and contentions mixed together, and are to a substantial degree repetitive.  This is in part due to the affidavit of 14 December 2001 being used to affirm on oath a substantial amount of the earlier material.

4. The Statement of Contentions includes (amongst other things) the following evidence:

   (1)The grantee party (semble Arafura Resources NL) has an established policy to keep all affected title holders informed, either directly or indirectly, of its intended exploration activities.  Attachments A and B to the Statement provide by way of example copies of notifications given by the grantee party concerning another tenement, namely EL 9672.  These include prior notification to the relevant Land Council and the local Aboriginal elder.  ‘The grantee party will extend this form of written notification to Native Title holders and/or their representatives before any exploration is commenced on EL (application) 9823’.  It is stated that in relation to EL 9672 ‘no field activity was commenced before first visiting the local Aboriginal elder … Local Aboriginal men were engaged to assist with exploration activities on a daily basis and the local elder was transported to the drill site by the grantee party to allow him to personally inspect the operations.’  Similar measures would be taken in respect of exploration activities on the licence area of EL 9823.

   (2)The grantee party has an established policy to commission a sacred sites clearance survey by the AAPA before undertaking any exploration activities ‘which activates the “substantial disturbance” provisions of the mining legislation’.  It holds Authority certificates for each of its exploration tenements, namely the whole of AN 389 and EL 8313, and for that part of EL 9672 which has been subject to costeaning and drilling activities.

   (3)The grantee party has an established policy to inspect the Sacred Sites Register of the AAPA before undertaking any non-intrusive exploration activity which does not activate the ‘substantial disturbance’ provisions, ‘to ensure that maximum protection is afforded to all registered and recorded Sacred Sites.’

   (4)The grantee party conducts its exploration activity in accordance with the Government’s ‘Code of Conduct for Mineral Explorers in the Northern Territory’.  It states that it has a demonstrated record of adherence to the ‘substantial disturbance’ provisions.  Attachment E to F to the Statement illustrate rehabilitation of recent costeans, drill sites and access tracks on the grantee party’s other tenements.  In support of its contention that ‘major disturbance’ (as distinct from ‘substantial disturbance’) is not permitted under an exploration licence, the grantee party provides at Attachment H copies of photographs of disturbance which it says illustrate the difference.

5. The Grantee Party Reply to Statements of Contentions dated 27 November 2001 includes supplementary details of prior mining tenements, and the summary of previous exploration and mining history, to which reference has already been made.

6. In addition, the Reply includes detailed responses to the affidavit of Mr Foy, and its annexure, provided by the native title party.  A number of the responses on factual matters relate specifically to ELA 9823, others are of more generic nature (as is the material by Mr Foy).  The thrust of the responses is that contemporary techniques, equipment and best practice in general, and particularly in relation to ELA 9823, are likely to result in exploration activities having far less impact upon country than postulated by Mr Foy.  In particular, a distinction is drawn between exploration activities and mining activities.

7. Further, it is stated that published literature records that, in 1992, the average age of an exploration licence in the Northern Territory was 1.68 years.  This implies that most ELs in the Northern Territory are surrendered before the end of their third year of grant, which is generally before any drilling is carried out, according to the table included in the annexure to Mr Foy’s affidavit.  It is also stated that the probability that an exploration prospect would get to the feasibility assessment stage is arguably less than 1 in 1,000.  Whether these views are put forward as matters of fact, opinion or submission, the task of the Tribunal is to consider the probabilities in the present matter, given its specific circumstances.  The history of exploration and mining in the licence area, the assessments contained in the consultant’s report, and the proposed work program for the first two years, at the very least indicate that this prospect is much further down the preliminary exploration track than would be the case in an area with no comparable history.

8. John Goulevitch has affirmed an affidavit dated 14 December 2001.  He states that he is a geological consultant with over 31 years of professional experience in the mining and mineral exploration industry in northern Australia, including over 15 years in the Northern Territory.  He acts as the exploration manager for Arafura Resources NL, which he refers to as the grantee party in the present matter.

9. The affidavit formally affirms much of the material in the grantee party documents that preceded it.  It includes the following information:

   (1)Mr Goulevitch prepared the Statement of Contentions and the Reply.

   (2)He developed and instituted the policies of the grantee party.

   (3)He was personally involved in the activities relating to ELA 9672 that are used to illustrate those policies and practices in operation.

   (4)He is the author of the notification correspondence set out in various attachments, and took most of the photographs.

   (5)He is the author of the responses to Mr Foy’s affidavit and the annexure to it.

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

1. 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.

2. As noted in paragraph [19] above, there is no evidence of any Aboriginal community on the licence area.  Pine Creek Town Camp is about 45 kilometres south of the licence area.  There is no evidence provided about the details of this community.

3. The contentions of the native title party state that:

   (1)Members of the native title claim group exercise their native title rights ‘within and in the vicinity of’ the licence area, and that in doing so, they carry on community or social activities ‘on and around’ the licence area that are likely to be directly interfered with by the act.  This includes direct interference with the spiritual aspects of the carrying on of the community or social activities;

   (2)The road from Mount Wells north and north east to the Mary River passes through the licence area near Jessup’s Mine, and that it is frequently used by members of the claim group to access the licence area for carrying on community and social activities;

   (3)Tributaries of the Mary River are used for fishing, sources of drinking water and may sustain and be part of areas and sites of significance;

   (4)The community or social activities of the native title claim group include:

   (a)    hunting, fishing and gathering bush tucker: Affidavit of Bessie Coleman paras [5], [8], [9];

   (b)    teaching children about traditional laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas and sites (Bessie Coleman, [3], [6], [8], [9]);

   (c)    quiet enjoyment and camping (Bessie Coleman, [3], [6], [8], [9]);

   (d)    actively looking after country by individuals with specific responsibility (no source of evidence is cited).

   It is contended that these activities occur ‘over some or all of the licence area, and in its vicinity’.

4. In reply to the foregoing, the government party contends that:

   (1)use of the road referred to in paragraph [54(2)] above would be insubstantial, bordering on the trivial;

   (2)the references to community or social activities referred to in paragraph [54(4)] above are so lacking in particularity as to location, seasonal variations, numbers of persons engaged, frequency, that the references have no evidentiary weight.

5. In reply to the native title party, the grantee party contends that:

   (1)in relation to Bessie Coleman’s paragraph [7], Frances Creek is about 15-20 kilometres south of the licence area, and both Mt Wells and Burrundie Siding are about 10-12 kilometres to the south-west; the nearest old railway line is at Burrundie Siding; the only roads in the licence area are either public maintained roads or unmaintained bush tracks which provided access to tin mines which operated in the licence area 10-30 years ago;

   (2)in relation to Bessie Coleman’s paragraphs [3] and [8], the McKinlay River passes 5 -10 kilometres west of the licence area, Old Mary Station is about 30 kilometres south-east of the licence area, the reference to Mary River Mine in paragraph [3] would appear to be a reference to the abandoned Mount Harris tin mine (see paragraph [8]) about 6-7 kilometres north-east of the licence area.

6. The native title party contends that the proposed grant of the exploration licence will authorise the grantee party to engage in a range of activities that will directly interfere with the carrying on of the community or social activities of the native title claim group.  These exploration activities include the presence of exploration personnel and equipment; the use of access roads or trucks; construction of tracks, roads, camps sites; increased traffic; and a range of environmental impacts.  It is contended that all of this is likely to directly impact on the claimants’ ability, confidence and desire to access and utilise the licence area, so that there is a real or not remote chance or possibility of direct substantial interference with community or social activities.

7. The above contention really amounts to a listing of all the things that the grantee of an exploration licence may do, whether or not in fact they are likely to be done, and more particularly, has little or no regard to the regulatory context in which the activities would take place in any event.

8. In reply to the foregoing contentions of the native title party as to interference, the government party contends that:

   (1)the likely interference must be direct (ie proximate) and substantial, and the materials do not establish the how, when, where and why a substantial impact is likely to occur;

   (2)the contextual risk evaluation should have regard to the state of the evidence, the regulatory scheme, the lawful activities of third parties (including the pastoral lessee) prior mining and/or exploration grants and pastoral leases over the same land, and restrictions imposed by the general law.

9. In reply to the native title party the grantee party contends that:

   (1)it has established policies of investigation, notification and consultation;

   (2)the Mary River has a catchment area in excess of 6,000 square kilometres, about half of this is downstream of the licence area, the licence area is about 60 square kilometres, exploration activities will have no material impact on the tributaries of the Mary River or McKinlay River downstream from the licence area;

   (3)Bessie Coleman’s affidavit does not distinguish appropriately between exploration and mining activities, no real examples are provided as a basis to support her ‘worries’, comments in paragraph [8] about past and current hunting and fishing contradict the concerns expressed in previous paragraphs.

1. I have set out at length in paragraphs [28] to [30] above material relating to the statutory provisions and the administrative regime applicable to the regulation of activities pursuant to an exploration licence in the Northern Territory.  Of particular significance are the provisions, terms and conditions designed to protect native title rights and interests, including requirements added since 1 January 2002.  Not only are these controls applicable, but also active steps are taken by the government administration to bringing them to the notice of a grantee party.  Certainly following this inquiry the grantee party in this matter could not profess ignorance of them.

2. In the context of sections 237(a) and 237(b) there is particular relevance in Condition 1 of the Second Schedule, which contains a general obligation upon the grantee to minimize interference with traditional community or social activities, or interference with areas or sites of particular significance. Against that background, the conditions relating to consultation (condition 6) and resolution of complaints (condition 25) take on added significance. The provisions of conditions 1, 6, 7, 8, 18, and 25 of the Second Schedule are all specifically directed to the protection of native title rights and interests. In addition, the rest of the conditions also serve, directly or indirectly, to prevent or minimize interference with community or social activities, or areas or sites of particular significance. The effect of legislation directed specifically to sacred sites is considered in relation to section 237(b), but to the extent that there are physical activities associated with areas or sites, then legislation directed to protection of sacred sites tends to facilitate physical activities associated with them.

3. In Arthur Que Noy and Others/Robert Michael Biddlecome/Northern Territory, NNTT DO01/114, 19 July 2002 at [32], Member Sosso states:

   The regulatory regime in force in the Northern Territory contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities.  …. the cumulative effect of the various provisions in the Mining Act is such, that it is possible to infer that there is a comprehensive and well integrated legal regime which is aimed at preventing (as far as is practicable) interference with community or social activities by explorers. While this regime does not render otiose an assessment pursuant to section 237(a), nevertheless the existence of such a regime is an important factor to be considered when making a predictive risk assessment …

I respectfully adopt those observations.

1. The grantee party has outlined its policies and practices and expressed the intentions set out at paragraph [46] above.  The Reply by the native title party suggests that practices relating to other tenements are of only marginal relevance. In the ordinary course of events however, the Tribunal is entitled to assume that the grantee party will act lawfully and consistently, and that it will give effect to its present intentions.  Presumptions of legality and continuity are capable of rebuttal in appropriate circumstances, but I am not aware of any such circumstances in the present matter, and indeed the evidence is to the contrary.

Conclusion as to section 237(a)

1. In Smith v Western Australia (2001) 108 FCR 442 at 451 French J states that interference:

   must be substantial in its impact upon community or social activities.  That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.

2. The evidence of Bessie Coleman, as distinct from standard-form assertions in contentions by the native title party, is extremely slender as to past and present community or social activities within the licence area as distinct from elsewhere, and even more slender about where and in what way the proposed exploration activities on the licence area are likely to interfere with those community or social activities.  This is all the more so given the lack of express reference to specific exploration and mining activities in the past at identifiable places within the licence area.

3. Against this there is the specific evidence about the comprehensive requirements of the regulatory regime and its implementation, together with statements of the intentions of the grantee party.  There are presumptions of regularity and legality about the conduct of the government party and the grantee party, neither of which is effectively rebutted by the evidence of Ms Coleman.

4. On the evidence, I am not satisfied that there is any real chance or risk of the proposed act interfering directly with community or social activities by the native title claim group in anything more than a trivial or unsubstantial way, if at all. In my opinion, the proposed act is an act attracting the expedited procedure within the meaning of section 237(a) of the Act.

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

1. The issue is whether the proposed act is likely to interfere with areas or sites of particular significance in accordance with the traditions of the native title claim group.

2. The contentions of the native title party contain the standard-form argument that ‘All areas and sites have particular significance.  Their identification and naming as separate to the other areas of country is evidence of their significance’.  I do not accept this blanket assertion.  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.  See Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 34 per Carr J. It will be a question of fact as to whether a particular area or site is of particular significance, and that must be established by evidence, not mere assertion. I refer to the comments on Mr Frith’s memorandum ‘Analysis of legislation dealing with significant sites’, set out in paragraphs [23] and [24] above.

3. The contentions of the native title party do not refer to any specific areas or sites.  At paragraph [2] of her affidavit Bessie Coleman states ‘There are a lot of sites on the map from men’s side, so I can’t know them.  But them fellas ought to know and the young ones need to be taught.  My uncles probably put those sites on that map when they were still alive.’  Ms Coleman is there referring to the map that is attached to her affidavit.  There are no areas or sites marked on it, either on the licence area or elsewhere.  The reference to sites which she does not know carries little weight as to their existence, and says nothing as to whether they are of ‘particular’ significance.  Indeed, it is noted that this paragraph of her affidavit is in precisely the same words as paragraph 2 of her affidavit set out in the Determination in Michael Page/Arafura Resources NL/Northern Territory NNTT DO01/21, Member Sosso, 1 February 2002, at paragraph [11] with respect to ELA 22269.  This raises a question (which I need not pursue) as to whether this is merely a ‘pro-forma’ statement.

4. The AAPA sites map provided by the native title party does not show any registered or recorded sacred sites within the licence area.  Details of listed sites within the general region and their AAPA status have been set out in paragraph [21] above.  The sites range from about 18 to 30 kilometres from the licence area.

5. I accept Mr Stead’s evidence that the AAPA Register is not necessarily conclusive as to whether or not a sacred site exists within any given area: the commentary by the AAPA accompanying its map underlines that point. Nevertheless, for the purposes of section 237(b), there must be evidence to demonstrate not only the existence of an area or site, but also why it should be regarded as of ‘particular’ significance.

6. It has been accepted by the Tribunal that an area or site that is not located on the licence area may still be relevant.  However, 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].

7. The evidence and opinions tendered by the native title party through Mr Stead, Mr Foy and Mr Firth are expressed in generalities.  They do not address the specifics of whether there is ‘likely’ to be exploration activity on or near, or affecting, the sites outside the licence area identified in the AAPA material.  See paragraphs [22] to [24] above.

8. On the evidence it seems remote that in the ordinary course of events, activities on the licence area, or if it be relevant, associated activities off the licence area, are likely to interfere with any of the sites referred to in the AAPA material.

9. There is a further safeguard.  The conditions of the proposed exploration licence will trigger an enquiry and consultation process, 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 grantee party had 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)

1. On the evidence, I am not satisfied that there is any real chance or risk of the proposed act interfering with areas or sites 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

1. 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.

1. The Tribunal has previously discussed the criteria applicable to section 237(c), and I have done so in Billy Coolibah.  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.

1. 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.

2. 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.

3. 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 evidence by Ms Coleman which for the most part is directed to places other than the licence area.

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.  See paragraphs [22] to [24] and [75] above.

1. Anxiety is expressed by Ms Coleman in her affidavit at paragraphs [4] to [6], about the possible impact of mining and exploration.  It is clear that she does not distinguish between exploration activities and mining activities (‘To me its all the same thing: mining, exploration, digging – its all disturbing the country’), nor does she refer to any awareness of the rights of the registered native title claimants under the future act process if an application is made in the future for a mining lease.  It is noted that paragraphs [4] to [6] of her affidavit are in precisely the same words as paragraphs [4] to [6] of her affidavit in NNTT DO01/21, referred to in paragraph [71] above.  This again raises a question as to whether these are ‘pro-forma’ statements of past experience.  There is also a question in any event as to how long ago the experiences to which she refers occurred, and their relevance under present-day regulatory requirements and current exploration practices.

2. The evidence of the grantee party indicates that mining occurred on the licence area from about 1942 to 1986, and there has been continuing exploration since then.  This activity has not attracted any specific comment by Ms Coleman relating to the relevant mining and exploration sites.  In my opinion, her evidence does not demonstrate that exploration activity within the licence area would amount to a major disturbance in the sense of ‘a significant impact on Aboriginals who live in or use the affected area’ (Wilcox J, Dann v Western Australia, at 395).

1. In assessing the likelihood of major disturbance in the licence area, the factors working against that likelihood include:

   -   the scant evidence relating to community or social activities of the native title claim group in the licence area;

   -   the evidence of previous mining and exploration activity in the licence area;

   -   the lack of specific evidence by the native title party about any past disturbance in the licence area or likely major disturbance in the future;

   -   the difference in nature between the proposed exploration activities and mining activities;

   -   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;

   -   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 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.

2. As to the concerns about exploration generally that have been expressed in the 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 in the sense explained in Dann v Western Australia, under either limb of section 237(c).

Conclusion as to section 237(c)

1. On the evidence, I am not satisfied that these is any real chance or risk of the proposed act involving 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

1. 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, the ‘generic’ material 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, particularly those referred to in paragraph [17] above.

2. 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 the 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

1. The determination of the Tribunal is that the grant of Exploration Licence 9823 to McCleary Investments Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993 (Cth).

Professor Douglas Williamson QC.

Member

11 September 2002