Gabriel Hazelbane and Others on behalf of the Warai and Angwinmil Peoples/Northern Territory/Rodney Johnston
[2002] NNTTA 34
•27 March 2002
NATIONAL NATIVE TITLE TRIBUNAL
Gabriel Hazelbane and Others on behalf of the Warai and Angwinmil Peoples/Northern Territory/Rodney Johnston, [2002] NNTTA 34 (27 March 2002)
Application No.: DO01/40 and DO01/41
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Gabriel Hazelbane and Others on behalf of the Warai and Angwinmil Peoples (Native Title Party)
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The Northern Territory of Australia (Government Party)
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Rodney Johnston (Grantee Party)
Tribunal: The Hon EM Franklyn QC
Place: Perth
Date: 27 March 2002
Catchwords: Native Title – Future Act – prepared grant of two exploration – licences expedited procedure objection application – relevance of ‘generic’ ‘standard’ exhibits – whether either act is likely to have any of the consequences specified in s 237 of the Native Title Act (1993) – evidence does not support objection – determination that the grant of each licence is an act which attracts the expedited procedure.
Legislation: Native Title Act 1993; Mining Act (NT); Aboriginal Land Rights Act (NT) (Cth) 1976; The Land Rights Act; Aboriginal Sacred Sites Act (NT); Mining Management Act (NT) (2001); Mining Amendment Act No. 44 (2001) and Environmental Assessment Act.
Cases: Smith v State of Western Australia (2001) FCR 442; Cheinmora v Striker Resources NL (1996) 142 ALR21 (at 34) and Dann v Western Australia (1997) 74 SCR 391:144 ALR1.
Hearing Dates: 11 July 2001, 9 November 2001 and 13 December 2001.
Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory.
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council.
Grantee Party: Mr Rodney Johnston.
BACKGROUND:
[1] On 24 January 2001, the Northern Territory Government (the Government party) issued a notice under s 29 of the Native Title Act 1993 (the Act) that it proposed to grant to Rodney Johnston (the grantee) Exploration Licences 9942 (comprising of 3 square kilometres) and 9999 (comprising of 7 square kilometres) both in the Pine Creek locality (jointly referred to as ‘the proposed licences’ and separately as ‘ELA 9942’ and ‘ELA 9999’). The notice contained the statement that the Government party considered each such grant to be an act attracting the expedited procedure.
[2] On the 24 May 2001, Gabriel Hazelbane and Others on behalf of the Warai and Angwinmill Peoples (the native title party) claimants for a determination of native title under application DC01/21, lodged an expedited procedure objection application in respect of each such proposed grant (the objections) objecting to the inclusion therein of the said statement on grounds which allege that neither grant complies with any of the criteria expressed in s 237(a), (b) and (c) of the Act.
[3] On 11 July 2001 the Tribunal issued directions in each matter to each of the parties requiring the provision of statements of contentions, documents, information and evidence for the purpose of its determination as to whether either of the proposed grants attracts the expedited procedure. The directions were identical in respect of each matter and contained time frames for compliance, the Government party to comply on or before 17 October 2001, the native title parties on or before 24 October 2001 and the grantee on or before the 31 October 2001. Each party was at liberty to reply, on or before the 7 November 2001, to the contentions made by the other parties. The Government and native title parties in each matter duly complied with the said directions within the directed time frames. The grantee advised that in each of the matters he relied on the contentions of the Government party.
[4] At a Listing Hearing on the 9 November 2001, at which the grantee did not attend, the Government and native title parties agreed that the determination in each matter could be dealt with on the papers, this after the Tribunal Member had pointed out to each that he required clarification of certain matters referred to in the documentation made available by them respectively. The clarification sought was subsequently provided. The grantee advised by letter that he too agreed to the determination being made on the papers.
[5] I am satisfied that the issues for determination in each of these matters can be adequately determined in the absence of the parties by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal.
[6] The information provided by the Government party reveals the proposed licences to abut one another, ELA 9942 having its southern boundary in common with the northern boundary of ELA 9999 and both to be situated on perpetual pastoral lease 1111 known as ‘Ban Ban Springs’. That information also identifies current Mineral Claims Northern by the letters ‘MCN’, Mineral Leases Northern by the letters ‘MLN’, applications for Exploration Licences by the letters ‘ELA’ and granted Exploration Licences by the letters ‘EL’. Situate on ELA 9942, are MLN’s 759, 760, 767, 771 and part of MCN’s 2466 and 2467. On ELA 9999, there are situate portions of each of MCN’s 2466, 2467, 2469 and 2471 and the whole of MCN’s 2468 and 2470. To the north of ELA 9942 are three granted Mining Tenements (see Mining Act (NT) s 4) abutting each other, the southern-most of which has a common boundary with MLN 759, and, very close to the northern-most of those three tenements, are a further two such tenements, all situate on an area Reserved from Occupation which is the subject of an application, number 405 (AN 405) for authorisation to occupy, explore and mine. The land to the east and south-east of the proposed licences is also subject to AN 405. The lands otherwise surrounding the same in all directions are the subject of Exploration Licence applications, with current Mining Tenements situate within a distance of less than 2.5 kilometres to the west of ELA 9999 and approximately 4 kilometres to the south thereof (see Auslig map 5270).
The Government party also advises that the lands the subject of the ELA 9942 were previously the subject of EL’s 4744, 7722, 8082 and 9019 and MLN 968 and those of ELA 9999 were previously the subject of MLN 954 and EL’s 6371, 7640, 8348 and 8655. It is not clear whether all or any of these prior tenements covered the whole of the ELA’s 9942 or 9999 as the case may be.
[7] The information provided by the Government party reveals that there are no Aboriginal communities situated on the lands the subject of either of the proposed licences and it appears common ground that there are no areas or sites of particular significance on the same. That there are no such areas or sites is said by the Government party to be conceded in the native title party’s objection (form 4) in each case. The objections as lodged concede only that there are no sites recorded by the Aboriginal Areas Protection Authority (AAPA) within either proposed licence, but make no claim that areas or sites of particular significance exist on either. The objection particulars allege, however, ‘two sites within fifteen kilometres’ of each of the proposed licences to have been recorded by the AAPA and that, ‘accordingly’, the area is of great significance but that it is not appropriate that information as to the location of such areas be provided in a public document. However, in their statement of contentions the native title party relies on only one area or site of particular significance that the grant of each Exploration Licence is said to be likely to interfere with, that being described as ‘Andetdetla’ (Lazarus Ford [3]).
[8] Contentions of both the Government party and the native title party are voluminous. I do not propose to deal with all of them but only those that are relevant to the issues for my determination in accordance with the evidence made available. Each party has lodged a substantial amount of material as ‘generic exhibits’ and ‘standard exhibits’ said to be relevant in general to every expedited procedure objection application. Again, I limit my references to that material to such as I consider relevant, on the evidence, to my determination.
[9] I refer firstly to the evidence provided by the native title party, and in particular, the affidavits supporting the objections.
(a)Two affidavits of Lazarus Ford of Kybrook Farm via Pine Creek, each sworn on 9 October 2001, one in respect of ELA 9942 and the other ELA 9999.
These affidavits are identical to each other in their content save as to identification of the land the subject of the respective objection applications. They contain no direct information of Mr Ford’s membership of the native title claim group on whose behalf the objections were lodged. He deposes that the proposed licences are each on land the subject of the Ban Ban Springs native title determination and annexes an identical map in each case identifying the location of the relevant proposed licence. The source of the maps is not deposed to and is not shown thereon or otherwise identified. He deposes that at Mary River Station ‘there is a site right there; Andetdetla. It’s a ceremony place right next to the station on the banks of the Frances Creek (grid reference 5371 at approximately 132°, 01’ E, 13°, 29’ S)’ and says that he was told about it by Roy Anderson and Steve Wilika, neither of whom is identified in any way. Mr Ford also deposes that ‘we’ go ‘hunting up to the airstrip next to the ELA (grid reference 5270 at approximately 131° 52’ E, 13° 29’ S)’. He explains that he drives along the road from Mount Wells up to the old airstrip, down the gorge area in the northern part of ELA 22269 (not shown on the annexed map) grid reference 5270 at approximately 131° 55’ E, 13° 33’ S, and along the road to the Mary River Homestead. ‘We shoot from the road, we also turn down to Frances Creek Mine going through ELA’s 9999, 22270 and 10137’. He deposes that ‘we’ go on weekends, maybe every fortnight, with other traditional owners and family and shoot kangaroos, pigs and turkey, and that along the road where the Mount Wells track branches south to Frances Creek Mine, ‘going through ELA’s 9999, 22270 and 10137, we get porcupine and long yam’. He says that ‘all around Frances Creek mining area there are ochre deposits used for funeral ceremonies and art works’ and that ‘they fish and swim at the Frances Creek dam’. The respective locations of the Mary River Homestead and the Frances Creek Mine are not otherwise identified by Mr Ford and do not appear on the map annexed to the affidavit. Mr Ford expresses the opinion that ‘exploration’ means drilling which will scare all the animals and ruin the hunting and that ‘all of those areas have got good water holes for kangaroos and pigs which will be scared away’. He says that ‘we’d be concerned’ about the risk to mining people of being accidentally shot in the course of hunting by way of shooting, and that they may be told to stay out of the mining people’s way or to get off their tracks. Each of the maps annexed to Mr Ford’s affidavits has markings on it coloured variously red and black, which are not explained in any way. The grid references referred to in the affidavit are not identifiable on the map. At a listing hearing on 9 November 2001, the native title party’s representative’s attention was drawn to those markings and the absence of grid references on the map relied upon and a request was made by the Tribunal for further information. The native title party was subsequently requested to provide an amending affidavit from Mr Ford to explain those matters. However the Northern Land Council (NLC) advised by letter dated 28 November 2001, that to provide such an affidavit would take time and involve considerable expense. Instead, the writer of that letter gave in it an explanation of the path of the road from Mount Wells to the airstrip deposed to by Mr Ford. A copy of that letter was given to the other parties who advised that they accepted the description as correct. The letter makes no attempt to identify the location on Mary River Station of the alleged site of ‘Andetdetla’ even though the contentions allege it to be a site of particular significance likely to be interfered with. No reason is given for the absence of such information. The letter describes the road as heading generally east (from Mount Wells) passing through ELA 9942 and ‘just out of the area (to the north) of ELA 9999’. In neither of his two affidavits does Mr Ford describe the road as running through ELA 9942, but the map shows what appears to be a turn-off from the road into ELA 9942 across its northern boundary and near its north-east corner to the southern end of the airstrip which is shown on the map as being partially on ELA 9942. The same road is marked on the Auslig map sheet 5270 provided by the Government party which shows that it cuts through two of the five current Mining Tenements on AN 405 and comes close to the remaining two. The said letter goes on to advise that the road continues generally east and north-east to the Mary River Homestead which is off the map, and that the fork in the road west of proposed tenement ELA 9942 is the point where Mr Ford turns to drive to Frances Creek to the south. As neither that letter, nor the map produced by the witnesses for the native title party, gave any information as to the location of Mary River Station or the site ‘Andetdetla’ referred to by Mr Ford, I requested the Department of Mines and Energy to prepare a map (dated 7 December 2001) identifying the location of the grid references referred to in the affidavit. I did so because of the claim in the native title party’s contentions that it was a relevant site under s 237(b) and therefore presumably on or in the vicinity of one or other of the proposed licences. Its location required a map of a larger area than that of the map produced by the deponent. A copy of the same was made available to the parties for comment but no challenge was made as to its accuracy. It shows Mr Ford’s grid references to Mary River Station and Andetdetla to locate them at a point in excess of 15 kilometres from the nearest point of ELA 9942 and slightly more from the nearest point of ELA 9999. There seems no reason why that information could not have been made available by the native title party’s representative. The map also identifies the Frances Creek Mine and Frances Creek town site to be approximately 7 kilometres south of the nearest point of ELA 9999. The Auslig map 5270 shows the road to that mine to enter ELA 9999 almost at the north-east corner of the southern of the two blocks comprising ELA 9999, and to then run very close to the eastern boundary of that block for approximately 1/3 of its length before crossing over onto ELA 10137, through ELA 22270 and 22856 into a large area of granted Mining Tenements and Exploration Licences which surround the town site. Mr Ford’s affidavit does not provide any evidence of any significant community or social activity of the holders of native title in relation to the land or waters concerned. The activities of which he speaks are restricted to hunting by shooting from the road between Mount Wells and Mary River Homestead, and from the Mount Wells Road to Frances Creek Mine; fishing at Frances Creek; obtaining porcupine and long yam along the road from the turn-off at Mount Wells Road through ELA’s 9999, 22270 and 10137; and the obtaining of ochre for funeral and art purposes from around the Frances Creek Mine area. The total road distance traveled in pursuit of these activities is extensive, but relevantly, on ELA 9942, involves a length of road of approximately 1 kilometre commencing at its north-east corner and running between the airstrip to the east and MCN’s 760, 771 and 767 to the west, and on ELA 9999 a road length of something less than 1 kilometre. The roads referred to are on Ban Ban Springs Station, at least to the extent that they cross the proposed licences, and so are subject to use by the pastoral lease holder and, it can be reasonably inferred, its employees, trades people and others using the roads to and from Mount Wells, Mary River Station, Frances Creek, Frances Creek Mine and by those engaged in mining and other activities in the area. There are current Mining Tenements on each proposed licence and to the north, south and west, and ELA’s virtually surrounding them. The extent to which the hunting activities and the gathering of yams takes place on either ELA is not identified and in any event, at least as far as hunting is concerned, would be minimal when considered with the evidence of the overall extent of that activity. It is not possible, on the evidence, to gauge to what extent yams and porcupine are obtained from EL9999, which is one of three locations named, and so to gauge whether, if the grant is made, there is likely to be any direct significant interference with the activity of obtaining the same. The affidavit of Mrs Coleman, to which I later refer, speaks of obtaining yams and porcupines in other areas. It is also significant that, despite the existence of those current Mining Tenements and of prior expired Mining Tenements and Exploration Licences over the proposed two licences and the existence of a substantial area of granted Mining Tenements and Exploration Licences in the Frances Creek area through which the road to Frances Creek passes, the deponent makes no allegation of interference therefrom, either currently or in the past, with the activities of which he speaks. There is no suggestion that the activities connected with the past or present Mining Tenements on either of the proposed licences has ‘scared’ away the animals or affected the hunting or gathering of which he speaks. The concern expressed in his respective affidavits is a future concern in each case as to the effect on hunting and access if the proposed licence is granted. There is no evidence to support his concern as to either. He does not suggest that there has been or is any danger to people from the present Mining Tenements from the shooting while hunting or any interference whatsoever, presently or in the past, by the miners with the activities of which he speaks. His concern as to possible dangers to others in the area if the licences are granted does not appear to have existed or exist in respect of the past and current Mining Tenements on the proposed licence areas. It is, in any event, the obligation of the user of a rifle to use it safely. The activity of hunting is one carried out over an extensive area through which the respective roads pass, the area of the proposed licences forming only a small part of the total area and, so far as shooting from the road is concerned, a very small part. As was pointed out by French J in Smith v State of WA (2001) 108 FCR 442, referring to s 237(a), the interference must be substantial in its impact upon the carrying out of community or social activities [p451] and the Tribunal is entitled to have regard to other factors that so affect the community or social activities that the impact of the proposed act is insubstantial. I am unable to conclude that the grant of either licence is likely to have other than a trivial impact on the said activities or is likely to be a proximate cause of any direct interference.
Mr Ford’s affidavit does not provide any evidence of the existence of areas or sites of particular significance (ie: of special or out of the ordinary significance) on or in the vicinity of either of the proposed tenements. The location of Andetdetla is so far away from the proposed licence that it would be unreasonable and not supported by the evidence to find that either grant is likely to interfere with it, even assuming it to be a site of relevant ‘particular significance’.
(b)Affidavits of Bessie Coleman of Pine Creek each sworn 1 October 2001, each in identical terms to the other.
Mrs Coleman’s affidavit annexes a map in respect of each objection, identical in every way to those annexed to the affidavits of Mr Ford earlier referred to. She gives no evidence of the existence of sites of particular significance. She speaks of growing up on Mary River Station and of being involved in mining there in the 1950’s and 1960’s. On the basis of her experience in mining she is concerned as to the effects of mining on hunting areas which, she says, ‘will change the way we hunt’, but without any particulars. In apparent contradiction of the evidence of Mr Foy she deposes ‘We don’t follow the roads. We go through the bush. We know the country. We go by motor car and foot walking to catch porcupine and kangaroo’. She talks of camping and digging yams at Frances Creek, swimming in the dam at the Frances Creek Mine and of catching water goanna and porcupine. She says that ‘We’ still use the road from Mount Wells across to the McKinlay River into the Frances Creek area and through ELA’s 9999, 10137, 9942, 2269 and 10167 to Mary River Station. She speaks of getting red ochre and flat rock for ceremonies ‘All around the Frances Creek area on ELA’s 22270 and 10137’. Those ELA’s are to the south of ELA 9999. Her only evidence as to use either of ELA’s 9942 and 9999 is use of the road passing through there on the way to the Frances Creek area and Mary River Station. I am unable to conclude from the evidence of Mrs Coleman that the grant of either licence is likely to interfere directly with the carrying on of the community or social activities of the holders of native title in relation to the land or waters concerned.
(c)Two affidavits of Jeffery John Wilson Stead sworn the 8 October 2001, in identical terms, one in respect of each of the said objections.
Mr Stead deposes that he is the Manager Anthropological for the Northern Land Council (NLC) and has held that position for ten years. He cites his former experience as a consultant anthropologist and as an employee of the Central Land Council (CLC) and the Sacred Sites Protection Authority (SSPA). He has worked for twenty years as an anthropologist in the Northern Territory. He deposes that it is unlikely that the Register of Sites of the Aboriginal Areas Protection Authority [AAPA] for any particular area will be accurate and complete for all sites or areas of significance within the area. He elaborates as to why, in his opinion, this is so. However the Tribunal does not determine whether or not there is a relevant site or area for the purposes of s 237(b) on the basis of registration of a sacred site within the meaning of the Northern Territory Aboriginal Sites Act or the recording of information pursuant to a claim for such registration. A registered or recorded site is not necessarily one of relevant particular significance. The native title party has produced information from the AAPA of its record of sacred sites within the combined areas of ELA’s 9942, 9999, 9823, 10046, 9978, 2222, 9824, 9989, 9991, 10350 and 10365. This information does not identify on which of those ELA’s these sites are said to exist. Neither it nor Mr Stead’s evidence adds anything to the evidence to which I have already referred.
(d)Two affidavits of Mark Frederick Foy, Senior Project Officer of the Northern Land Council (NLC), each sworn 24 October 2001 in identical terms, one in respect of each of the said objections.
In his affidavits Mr Foy sets out his working history in mining geology in Australia and elsewhere and deposes that he was an exploration consultant over a period of fourteen years. He sets out his formal qualifications and annexes a document headed ‘Exploration Activities’ which, he says, was compiled by him on the basis of his experience and which ‘outlines the range of activities that a grantee party can be authorised to undertake under an Exploration Licence granted in the Northern Territory, including the licence in this matter, and which may be undertaken.’
[10]The native title party also produces, as evidence on which it relies in each of these matters, a copy of the transcript of the sworn oral testimony of each of Mr Stead and Mr Foy given on the 3 and 4 December 2001 at the joint hearing of an inquiry by the Tribunal into expedited procedure objections DO01/11 and 12, DO01/17 and 18 and DO01/43 before Member J Stuckey-Clarke, in respect of which affidavits by them in similar terms to those filed in the present matters had been relied upon. My attention was not drawn by the native title party, or any other party, to any particular passage or passages of that evidence as being specifically relevant to the present matters. The transcript of evidence of Mr Stead is contained in some thirty eight pages, and that of Mr Foy in seventy eight pages.
Transcript of Evidence of Mr Stead given 3 December 2001.
[11] Mr Stead’s evidence-in-chief elaborates on his experience as an anthropologist and so his qualifications as an expert, and contains his opinion as to what Aboriginal people would call an ‘Aboriginal site’, based on the meaning he gives to the definition of ‘sacred site’ contained in the Aboriginal Land Rights Act (NT) 1976 (Cth) (the Land Rights Act), which is the definition of ‘sacred site’ contained in the Northern Territory Aboriginal Sacred Sites Act (the Sacred Sites Act). It is of significance that that definition is not incorporated into the Act. It is as follows:-
“Sacred site means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal Traditions, and includes any land that, under a law of the Northern Territory is declared to be sacred to Aboriginals or of significance according to Aboriginal Tradition.”
The following definition in The Sacred Sites Act is also relevant:
“Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.”
S 237(b) of the Act, however, is concerned 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”.
The use of the expression ‘particular significance’ necessarily excludes areas and sites that may be significant to varying degrees but do not have the characteristic of a ‘particular significance’ within the meaning of the sub-section. As Carr J said in Cheinmora v Striker Resources NL (1996) 142 ALR 21 (at 34) in respect of s 237(b):
“A relevant site is one which is of special or more than ordinary significance to native title holders. It is not enough that the site be simply of significance to native title holders.”
I have difficulty with the said definition of ‘sacred site’ in the application of s 237(b). It does not define the expression ‘sacred site’ as used in the body of the definition. The effect is that we are told no more than that a ‘sacred site’ is a ‘sacred site’ and that other sites, ‘otherwise of significance’, are also sacred sites, as are also sites declared by law to be sacred or of significance according to Aboriginal tradition. I find it impossible to assume from an assertion that a site is a ‘sacred site’, or from the fact that it is registered or recorded as such, that it is a site of ‘particular significance’ within the meaning of s 237(b) of the Act. Evidence to establish the particular significance is required. As the concern of the sub-section is interference with a relevant area or site, the Tribunal is required to look at the likelihood of interference, arising out of the grant of the licence or tenement, with that area or site. For a likelihood of interference to be considered, there must be evidence of the existence of a relevant area or site likely to be the subject of that interference. That evidence is not to be found in assertions that it is likely that there are areas or sites of particular significance on or in the vicinity of a proposed licence or tenement which could be interfered with if the grant is made. Such an assertion is no more than an admission that it is not known whether there is a relevant site on or in the vicinity of the same. It carries the necessary connotation that, if there is a site not then known to the holders of native title, it has no particular significance (within the meaning of s 237(b)) in accordance with their traditions as otherwise it would be known. Mr Stead spoke at length in general terms of the importance to Aboriginal people of sites and of the land and the landscape of which sites are part. He said that depending on the site and the personal spiritual connections with it, Aboriginal people would be upset by damage to it. He spoke of different types of sites and the social nature of some and the different degrees of upset that could result from damage. He said he drew no distinction between sites and areas. He spoke of sites recorded or registered on the AAPA Register and the process involved in the identification, recording and registration of a site. He referred to the difficulties of identification. I do not attempt to summarise his evidence. It was extensive and covered many matters of anthropological interest. However he gave no evidence of any site of particular or even other significance, on or in the vicinity of the proposed licences, likely to be interfered with by exploration activity on either of them. Nor did he give any evidence relative to the carrying on of community or social activity of the holders of the native title on or in the vicinity of the said proposed licences.
Transcript of Evidence of Mr Foy given 4 December 2001
[12] Mr Foy’s evidence was largely directed to his experience in mining and in elaborating on the document ‘Exploration Activities’ referred to in his affidavit. He describes in chief, in considerable detail, the various processes which, in his experience, he said are utilised in exploration under the Mining Act (NT) and which he spoke of as currently in use. That evidence was, in the main, directed to showing the likelihood of substantial disturbance to land the subject of exploration. In cross examination it became apparent that, without his knowledge, the affidavits he had sworn in the various matters DO01/11, DO01/12, DO01/17, DO01/18 and DO01/43, whilst otherwise in identical terms, varied in their content in relation to his document ‘Exploration Activities’ in that in some he deposes ‘the document outlines a range of activities that a grantee party can be authorised to undertake under an Exploration Licence granted in the Northern Territory’, and in others ‘the document outlines the range of activities the grantee party is authorised to undertake under an Exploration Licence granted in the Northern Territory’. He testified that he was not aware how or why the variation came to be made and had not noticed it at the respective times of swearing the same. He expressed the view, however, that in his opinion the two statements meant the same thing, a proposition with which I cannot agree. The ‘is authorised’ expression clearly speaks of an existing authorisation, whilst the ‘can be’ expression speaks of an authorisation, not yet given, which may however possibly be given. He went on to say that the exploration activities described by him are implicit in the grant of an Exploration Licence, but that in some cases the Minister ‘put a restraint on some of the activities that they must be referred to the department before they are carried on’. He conceded that he had not actively worked in exploration activities in the Northern Territory for over 12 years, that he had written the document about early 2000 and agreed that, in the main, it spoke of activities in the field. He agreed that there had been changes in practice and new technology over the past decade and that in some respects his document was dated. He stated that he was aware of the substantial disturbance regime under the Mining Act (1999) which provided that where there is a potential substantial disturbance in mining or exploration matters a grantee must seek approval under s 24(e) of the Mining Act (NT) before carrying out the work. He agreed that a number of the exploration activities detailed in his document were not in common use in the Northern Territory. In cross examination as to the activities to which he had referred in chief as ‘tertiary’ in exploration and involving detailed examination, he agreed that the impact of such activities is more significant than the ‘primary’ and ‘secondary’ aspects of exploration, in respect of which, he said, the impact is low except where access is to be constructed. In chief he had described ‘tertiary’ activities as ‘when you get your target examination and you are doing extensive intrusive work such as costeaning and drilling’, ‘primary’ as ‘non-obtrusive operations, often of a desk-type nature, first look reconnaissance type of work’ and ‘secondary’ as ‘extensive work on the ground but not of an intrusive nature’. As to ‘primary’ and ‘secondary’ activities, he said the only substantial disturbance they would incur would be in preparation of access into an area. He agreed that an Exploration Licence in the Northern Territory permits only exploration activities directed to testing and sampling and not to production, but was reluctant to agree that once you step into production you are acting contrary to the Exploration Licence, his answer commencing ‘Well, not necessarily, because what you could be doing is, as I said before, you would be looking at where say, gold mineralisation was contained. To determine whether it is worthwhile going on with the exploration or worthwhile going into full feasibility’. His document, under the heading of ‘Feasibility’, stated that ‘the latter stages of a successful exploration program grade into what is termed the Feasibility Study’. It then, as subheadings to that heading, referred to ‘Ore Reserve Drilling’ and ‘Metallurgical Testing’. It was put to him that those activities were properly the subject of an Exploration Retention Licence. His attention was drawn to the sub-heading ‘Metallurgical Testing’, under which he had dealt with the process of testing how the wanted product or products are to be extracted from the ore, stating that ‘usually large samples of several hundred tonnes are needed as the process starts with bench testing in a laboratory and then moves into small scale extraction runs on a small scale plant’. The document went on to say, under the same sub-heading, ‘In diamond mining the latest trend is to commence small-scale mining and processing to test the feasibility of a deposit’. It was put to him that an Exploration Retention Licence is a licence one would seek to hold when such things as Metallurgical Testing and Ore Reserve Drilling are undertaken and that if the mine were proved to an economic standard he would then move beyond that into a Mineral Lease. He accepted those propositions and said ‘the point I was trying to make there was the latest trend there (sic) was to go to small scale mining rather than to stick with strict exploration techniques’. He agreed that for setting up a camp of drillers or persons testing in the field the consent of the Secretary under the Mining Act was required, it being a matter of potential substantial disturbance. He also agreed that in track-making, where there might be any significant disturbance on the area of an Exploration Licence, and with any costeaning, even on a non-intensive scale, the same approval was required. He agreed that he was aware of the Second Schedule Conditions which are attached to Exploration Licences in the Northern Territory and commented that he thought them to be extremely good, his only criticism being that he considered there was ‘very little inspection of sites and work carried out after they are done’. In re-examination, when asked whether he had an understanding of the meaning of ‘substantial disturbance’ he replied that it was a concept written into the Act and that one could have a ‘lot of arguments’ as to what it means. He made the observation that there are ‘differences in interpretation, certainly in what the Aboriginal people think on this and that, in some areas, virtually walking across them is “substantial disturbance” in their mind’. There is no definition of the expression ‘substantial disturbance’ as used in the Mining Act. S 237(c) is concerned with ‘major disturbance’ and the meaning given it by judicial determination.
[13] On the 1st January 2002, the Mining Management Act (NT) (2001) [‘the MM Act’] and the Mining Amendment Act No. 44 (2001) (‘the Amendment Act) came into operation. The effect, so the Government party’s contentions state, is that ‘operational management of the Northern Territory’s Substantial Disturbance Regime has been removed from the Mining Act and placed under the MM Act’. I do not agree that the statement correctly describes the effect of these two Acts. Section 24(e) of the Mining Act, which prohibits the carrying out of any program involving substantial disturbance of the ground surface without the approval of the Secretary and requires compliance with conditions imposed by the Secretary, is not repealed. Nor are the other sections of the Mining Act under which conditions may be imposed. Section 24A of the Mining Act makes provision for the imposition of conditions to minimise the impact of the grant of an Exploration Licence on registered native title interests. Conditions imposed under section 24A are known as Second Schedule Conditions and are endorsed on the licence. Section 166(1)(a) (which imposed a much more specific condition than that under s 24(e) relative to causing as little disturbance as practical to the environment) is deleted by the Amendment Act and a new subsection, s 166(1A), inserted. The remainder of s 166 remains in force. Section 166(1A) provides that it is a condition of an Exploration Licence (granted subsequent to the 1st January 2002) that the grantee must hold an authorisation granted pursuant to s 36 of the MM Act ‘before carrying out on the licence area any exploration, operation or works involving substantial disturbance’. Provision for the obtaining of the relevant authorisation is contained in s 35 of the MM Act. It requires the applicant to lodge with its application a mining management plan in respect of the mining activities specified in the application. Section 40 of the MM Act sets out what must be included in a mining management plan. It must identify and describe the mining activities proposed, provide particulars of the implementation of the management system to address safety, health and environmental issues, provide a plan and costing of closure activities, particulars of the organisational structure, plans of current and proposed mine workings, infrastructure and other information and documents required by the Minister. The Minister may grant or refuse the application. Before granting it he must be satisfied that the management system to be implemented will promote the safety and health of persons and the environment and will be in accordance with good mining practice. The authorisation, if granted, is subject to the condition that the operator must comply with the approved mine management plan and any additional conditions imposed by the Minister, which may include, inter alia, conditions relating to the protection of safety and health of persons and the environment, the outcomes of environmental assessment of mining activities undertaken under the Environmental Assessment Act, the provision of periodic reports of mining activities the subject of the authorisation and the lodging of security for compliance with the Act and the authorisation.. The MM Act also provides that it is an offence to carry out activities without authorisation and provides for a substantial penalty for doing so and/or for breaching the terms and conditions of an authorisation.
[14] I do not set out in detail the Second Schedule of conditions currently in force. However it is significant that they are to a large extent directed to minimisation of impact on native title rights and interests in the licence area, of interference directly with the carrying on of community or social activities of the native title holders or claimants and of interference with sites or areas of particular significance in accordance with the traditions of the Native Title holders or claimants; to protection of the environment and ‘sacred sites’, restriction on the use of fire, the construction of vehicle tracks, clearing of vegetation and provision for minimalisation of disturbance to the land and the restoration thereof. There is also provision for complaints by the Native Title holder or claimant, how such complaints be dealt with and provision for orders for rectification by the licencee or at his cost, cancellation of licence and or other action as the Minister deems appropriate.
[15] The expression ‘major disturbance’ used in s 237(c) of the Act is to be considered in light of the decision of the Federal Court in Dann v WA (1997) 74 SCR 391:144 ALR1 which held that the interpretation of these words is a question of ordinary statutory construction which involves the ascertainment of their meaning and effect. 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.
[16] Having regard to the legislative regime apparent in the Mining Act as amended, and the MM Act, and the effect of those Acts in operation, I am of the opinion that the likelihood of ‘major disturbance’ to the land the subject of the proposed Exploration Licences is remote. It must be assumed that the Minister and the Secretary will administer their obligations under the Acts in accordance with the terms of the Mining Act and the MM Act and the philosophy of the Mining Act as apparent in sections 24, 24(A) and 166 of the Mining Act, and sections 35 to 46 of the MM Act. The presumption of regularity applies. The evidence of the views and concerns of the native title party is limited to possible interference with hunting by shooting from the roads running through the proposed licences (which, in each case, involves a very limited stretch of road), and the obtaining of porcupines and yams in some areas not limited to the proposed licences. The only reference therein to disturbance is an assertion that drilling disturbs the country and interferes with the hunting, not supported by any evidence. The objective facts are that the proposed licences are in an area already the subject of current Mining Tenements (as opposed to Exploration Licences) in close vicinity to an airstrip, one on the road to Mary Creek Station Homestead and the other on the road to Frances Creek, both being on a pastural lease. There is no evidence of sites or areas of ‘particular significance’. There are no positive views expressed by the Aboriginal witnesses for the native title party as to concerns of major disturbance. The evidence of Mr Foy does not touch on the land the subject to the proposed tenements and is of a very general nature. However he does voice approval of the Second Schedule Conditions which apply to Exploration Licences, describing them as ‘extremely good’. They have been substantially strengthened by the MM Act and the recent amendment to the Mining Act. In all of those circumstances I am satisfied on the evidence, giving the expression ‘major disturbance’ the meaning and effect given it in Dann (supra), that there is no likelihood of the grant of either tenement involving ‘major disturbance’ within the meaning of s 237(c) or creating rights as referred to in that sub-section.
CONCLUSIONS
[17] Having considered all the evidence and the relevant contentions and submissions I am satisfied that the grant of each proposed licence is an act not likely to interfere directly with the carrying on of any 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 same, and it 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
[18] The determination of the Tribunal is that the grant of each of Exploration Licences 9942 and 9999 is an act attracting the expedited procedure.
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Hon EM Franklyn QC
Deputy President
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