Gabriel Hazelbane, Tony Kenyon Luwanbi and Valerie Tambling; Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane; Michael Page/Norman Sydney McCleary/Northern...
[2002] NNTTA 64
•26 April 2002
NATIONAL NATIVE TITLE TRIBUNAL
Gabriel Hazelbane, Tony Kenyon Luwanbi and Valerie Tambling; Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane; Michael Page/Norman Sydney McCleary/Northern Territory, [2002] NNTTA 64 (26 April 2002)
APPLICATION NO:DO01/79, DO01/80 & DO01/81
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of a Future Act Determination Application
Gabriel Hazelbane, Tony Kenyon Luwanbi and Valerie Tambling
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Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane
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Michael Page (Native Title Parties)
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Norman Sydney McCleary (Grantee Party)
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()Government Party Northern Territory of Australia
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 26 April 2002
Hearing dates: 31 January 2002, 12 February 2002, 12 March 2002
Government Party: Mr Daniel Lavery and Mr N Papandonakis 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 John Goulevitch
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – evidence not accepted – Land Claim Reports – Aboriginal communities – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles – whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – likelihood of major disturbance to land or waters – presumption of regularity – protection under existing legislation - grantee party’s intentions – an act which attracts the expedited procedure.
Legislation: Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 44H, 151, 237
Cases:Dixon/Plenty River Corp Ltd/Northern Territory DO01/51, Member Stuckey-Clarke 19 April 2002
Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, Deputy President Franklyn, 27 March 2002
Hicks/Western Australia/Legend Mining NL WO99/7, Deputy President Franklyn, 25 September 2000
Little v Western Australia [2001] FCA 1706
Michael Page/Arafura Resources NL/Northern Territory D001/21, Member Sosso, 1 February 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Risk/Corporate Developments Pty Ltd/Northern Territory DO01/77, Member Sosso, 15 April 2002
Roy Dixon/Plenty River Corp Ltd/Northern Territory D001/51, Member Stuckey-Clarke, 19 April 2002
Smith v Western Australia (2001) 108 FCR 442
REASONS FOR DETERMINATION
Background
[1] On 2 May 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 10137 (“the proposed tenement”) to Norman Sydney McCleary (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 8 blocks (26.7 square kilometres) and is comprised of Pastoral Lease (PL) 815 which is known as “Mary River West”, Perpetual Pastoral Lease (PPL) 1111, known as “Ban Ban Springs”, and PPL 1134 known as “Mary River”.
[3] The following native title determination applications which cover the area of the proposed tenement, have been filed with the Federal Court:
(a) Application D6021/01 (“Ban Ban Springs”) was lodged on 17 May 2001 and entered on the Register of Native Title Claims on 24 May 2001. The Applicants are Gabriel Hazelbane, Tony Kenyon Luwanbi and Valerie Tambling;
(b) Application D6006/01 (“Mary River West”) was lodged on 1 February 2001 and entered on the Register of Native Title Claims on 1 March 2001. The Applicants are George Huddleston, Gabriel Hazelbane, Lenny Liddy, Paddy Huddleston, Robert Patrick Markham and Tony Kenyon; and
(c) Application D6018/00 (“Mary River”) was lodged on 5 December 2000 and entered on the Register of Native Title Claims on 4 January 2001. The Applicant is Michael Page.
[4] On 3 September 2001, a Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on behalf of each of the above named applications. Technically each of these Forms was lodged more than four months after the section 29(4) notification day of 2 May 2001 (section 32(3)). However 2 September 2001 was a Sunday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
In each case, the named Objectors are also the applicants named above.
[5] On 7 September 2001 Deputy President Sumner issued Directions for the conduct of these Inquiries and granted amendments to those Directions on 5 November 2001. A preliminary conference of the parties was convened on 1 October 2001 and on 5 November 2001 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of the expedited procedure objection inquiries for DO01/80 & DO01/81. On 30 January 2002 Deputy President Sumner directed that I should also constitute the Tribunal for the purpose of the expedited procedure objection inquiry for DO01/79. Following my appointment Listings Hearings were convened on 31 January, 12 February and 12 March 2002.
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. In this instance, having regard to the material before the Tribunal, and the requirements of section 151(2), I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.
[7] The parties have submitted to the Tribunal written contentions, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC”) dated 12 December 2001
Contentions in Reply (“GPCR”) dated 26 February 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 17 December 2001
Objectors’ Reply to Contentions of Government Party (“OCR”) 12 February 2002
Objectors’ Reply to Contentions of Grantee Party (“OCGr”) 13 February 2002
Objectors’ Contentions regarding the Aboriginal Land Rights (Northern Territory) Act 1976 Land
Claim Report (“OCLCR) 5 March 2002
Grantee Party Contentions
Statement of Contentions of Grantee Party (“Gr1”) dated 20 December 2001
Reply to Statements of Contentions (“Gr2”) dated 29 January 2002
Evidence
[8] In addition to the abovementioned written contentions, each of the native title parties lodged an Affidavit by Mr Lazarus Ford. Mr Ford’s Affidavit was affirmed on 9 October 2001 before Mr E J Low, a Commissioner for Oaths. This Affidavit is set out below:
“1. The area of the Ban Ban Springs (D6021/01) native title determination application includes the area of ELA 10137. I have seen a map area of the ELA. Now produced and shown to me marked “LF-10137” is a map of the ELA.
2. I live at Pine Creek in the Northern Territory.
3. Mary River station – there’s 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). Roy Anderson and Steve Wilika told me about it.
4. We go hunting up to the airstrip next to ELA 9942 (grid reference 5270 at approximately 131°52’E, 13°31’S). I do not need to ask permission to go up there. We drive along the road from Mount Wells up to the old airstrip, and down the gorge area in the northern part of ELA 22269(grid reference 5270 at approximately 131°55’E, 13°33’S), and along the road towards Mary River homestead. We shoot from the road. We also turn down to Frances Creek mine, going through the areas of ELAs 9999, 22270 & 10137. But you can’t go past the mine as that road is blocked off.
5. We go on the weekend, maybe every fortnight, with other traditional owners and family. In the school holidays in July this year, we went up there; with my kids and my brother’s kids. We go up at Easter.
6. We go shooting kangaroo, pigs, turkey. There’s good fishing at Frances Creek. Along the road where the Mount Wells track branches south to Frances Creek mine, going through ELAs 9999, 22270 & 10127, we get porcupine, long yam. All around that mine area there are places to get red, white and yellow ochre. That ochre we use for funeral ceremony and for art work: didgeridoos, turtle shells, bark paintings. At the Frances Creek mine we take the kids swimming in the dam and go fishing.
7. Exploration means drilling. It’ll scare away all the animals and ruin our hunting. All of those areas have got good water holes for kangaroo and pigs, and good roads and tracks for us to get around. If them fellas are out there they’ll scare off all those animals.
8. We’d be worried to keep going out shooting if the mining company mob is around. We might have an accident and shoot one of them. They might get mad with us and tell us to stay out of their way or get off their track. They’ll complain if we are there, or if we are firing shots. If the mining company is there, we don’t go.”
[9] In almost every respect, not only is Mr Ford’s Affidavit identical in each of the matters before me, but it is also identical to that which was lodged by the native title party in Michael Page/Arafura Resources NL/Northern Territory DO01/21, unreported, Member Sosso, 1 February 2002 (“Michael Page”).
[10] The government party has contended that it is uncertain on the face of this Affidavit, which, if any, of the native title claim groups Mr Ford claims to belong. It is also pointed out that in Michael Page I presumed that Mr Ford was a member of the Mary River (D6018/00) claim group. The gravamen of the government party’s contention is summed up as follows (GPCR at 84): “if he is not a member of a claim group, it is undeposed as to what authority he speaks for that group and therefore what reliability/weight his evidence could be attributed in this matter and DO1/80.”
[11] The relationship of Mr Ford to each of the registered native title claim groups is a matter of some importance. Mr Ford was found by Mr Justice Kearney in the Jawoyn (Katherine area) Land Claim Report to be a member of the Jawoyn local descent group (at p 39). The native title claim group in Application D6018/00 is said to be the Jawoyn People. Accordingly, I continue to presume that Mr Ford is in fact a member of the native title claim group as described in D6018/00. His relationship to the other two claim groups (the Warai and Angwinimil Peoples and the Wagiman, Warai and Jawoyn Peoples) is, however, less definite. Certainly it is claimed in the Contentions of each of the native title parties that Mr Ford is a member of their respective claim group. However, Mr Ford in his Affidavit makes no mention of whether he is a member of any of the claim groups. His Affidavit is totally silent on this point. Indeed, apart from deposing that he resides at Pine Creek, Mr Ford says nothing of either his relationship to the respective claim groups or his authority to speak on their behalf. This matter was raised at the Listings Hearing of 12 February 2002 when I indicated to Mr Frith that it would be helpful if the Tribunal was informed whether a person giving primary evidence was a member of a registered native title claim group, and if so, which one. I also indicated that if a person giving such evidence was not a member of a claim group, but was a native title holder, the native title party should indicate this, and inform the Tribunal the basis upon which the native title holder was providing evidence. Mr Frith went some way in attempting to deal with this issue in the Objectors’ Contentions Regarding the Aboriginal Land Rights (Northern Territory) Act 1976 Land Claim Report. However, it would assist the Tribunal (and obviously the native title party) if this type of matter could be more directly dealt with in the future, in either the Affidavits or Witness Statements lodged. If it is not, then on the basis of Little v Western Australia [2001] FCA 1706, a native title party runs the risk that the weight the Tribunal gives to the primary evidence submitted will be less than would otherwise occur.
[12] The Directions originally made by Deputy President Sumner required the native title parties to provide to the Tribunal and the other parties, a copy of each document relevant to the Inquiry (including any affidavit to be relied on) by 17 December 2001. On that date the Northern Land Council, on behalf of each of the native title parties, submitted the relevant documents. However, in each of the Contentions of Objectors reference was made to, and reliance placed upon, an Affidavit of Bessie Coleman despite the fact that no such Affidavit had been provided.
[13] On 21 January 2002 Mr Rumler, the solicitor representing each of the native title parties, wrote to the Tribunal in these terms: “We confirm that we do not have an executed copy of the affidavit of Bessie Coleman referred to in the Native Title Party’s Contentions filed and served 17 December 2001. This has occurred due to an administrative error. We seek a period of seven (7) days from the date of this letter within which to file and serve the executed affidavit of Bessie Coleman in this matter.” On 29 January 2002 Mr Rumler again wrote to the Tribunal. He said (inter alia): “We advise that we have been unable within the time sought in our letter to have the draft affidavit of Bessie Coleman executed. We have made repeated inquiries to locate and meet Bessie Coleman for the purpose of execution of her affidavit but have been unable to do so. We seek an extension of time to the time of the listings hearing in this matter within which to file and serve the affidavit of Bessie Coleman”. The Listings Hearing was due to be convened on 12 February 2002.
[14] Mr Goulevitch, on behalf of the grantee party, wrote to the Tribunal on 29 January opposing any further extension of time to allow the lodgment of Ms Coleman’s Affidavit. He made these submissions: “The GRANTEE PARTY objects to any further extension in regards to this affidavit given a similar previous problem with lodging an affidavit by Ms Coleman in the matter of DO01/21 – EL 22269.”
[15] I convened a Listings Hearing on 31 January 2002 to resolve this issue. I asked Mr Frith why the native title parties had not lodged the Affidavit of Ms Coleman by 17 December 2001 when reliance had been placed on it in each of the Contentions. Mr Frith said he could not explain why the Affidavit had not been executed and lodged by 17 December 2001. He went on to say: “Further efforts have been made since that time to obtain her jurat on that affidavit. I am instructed that on Friday, 25 January, telephone contact was made with her and an arrangement was made to meet her so the affidavit could be executed. My instructor waited for 3 hours at Pine Creek on the Friday afternoon and was not able to contact her at that time and therefore was not able to obtain her jurat on the affidavit.”
[16] After hearing from the other parties, I directed that each native title party file and serve by 4pm 31 January 2002 a copy of the unsigned and unsworn statement of Ms Coleman, and that each native title party file and serve the signed, dated and sworn Affidavit by 14 February 2002. I further directed that if the Affidavit of Ms Coleman was not filed by that time neither it, nor the unsworn and unsigned Statement would be received into evidence. These directions were made following advice from Mr Frith that he could file and lodge the unsigned statement within that time. The Direction to allow a further 14 days for the native title parties to lodge the signed Affidavit of Ms Coleman was made despite the initial opposition of the government party. Mr Lavery pointed out that although the native title party was seeking a two weeks extension, in fact the native title parties had been given a six weeks extension from the compliance time originally set by Deputy President Sumner.
[17] These matters again came before me at a Listings Hearing on 12 February 2002. At that Hearing I again reminded Mr Frith about the “springing” direction that had been made, and asked whether the Affidavit had been executed. I was advised that at that time it had not been executed. No submission was made at that Listings Hearing to vacate those directions.
[18] The fact is, the native title parties did not file and serve the Affidavit of Ms Coleman by the due date. The “springing” direction I made was self-executing, and, as such, the Tribunal does not have before it in any of these matters, evidence from Bessie Coleman. Any reliance placed by the native title parties on her evidence must, therefore, be disregarded.
[19] It should be pointed out that the unsigned statement of Ms Coleman’s that was filed on 31 January is in terms almost identical to that which submitted by the native title party in Michael Page. I carefully considered Ms Coleman’s Affidavit in that inquiry, and although I have not taken the unsigned statement in account for the purposes of these matters, for the sake of completeness, I can indicate that even if this statement had been submitted in the form of a sworn Affidavit it does not contain evidence that would have resulted in a different outcome.
Land Claims Reports
[20] The native title parties initially submitted short extracts (4 pages out of 73) from the Jawoyn (Katherine area) Land Claim Report. This was a Report of Kearney J in his capacity as an Aboriginal Land Commissioner. The Report was presented in 1987, but evidence was given substantially in 1984. It was pointed out (OSC at para 30) that the proposed tenement was not located within the area of this land claim (it is to its north).
[21] Subsequently the native title parties submitted the complete Jawoyn (Katherine area) Land Claim Report, and Mr Frith made some very useful submissions in the document entitled Objectors’ Contentions Regarding the Aboriginal Land Rights (Northern Territory) Act 1976 Land Claim Report. Insofar as the Tribunal has before it a full copy of this Report, and the native title parties have attempted to address the relevance of that Report to the matters before the Tribunal, I was prepared to evaluate the contents of the Report for the purposes of this inquiry.
[22] At the very end of the proceedings, the native title parties also sought to rely on the Jawoyn (Gimbat Area) Land Claim No 111, Alligator Rivers Area III (Gimbat Resumption-Waterfall Creek) (No.2) Repeat Land Claim No. 142 Report ( the “Alligator Land Claim Report”) of Gray J. This Report, which was presented in 1995, dealt with land and waters to the east of the proposed tenement. Again this land claim did not involve the land and waters of the proposed tenement.
[23] Gray J also dealt with issues of relevance to the Jawoyn People. He found that members of the Jawoyn language group traditionally identify themselves with subgroups or clans which are known as mowurrwurr. One of the mowurrwurr is the Wurrkbarbar. His Honour found (at page 19) that both Lazarus Ford and Bessie Coleman were members of the Wurrkbarbar mowurrwurr.
[24] Reliance was placed on findings by both Aboriginal Land Commissioners, inter alia, with respect to the entitlement to forage. The area the subject of the Katherine Land Claim (with the exception of Areas 4 and 5) is substantially to the south of the proposed tenement, and the Alligator Land Claim is to the east. Any finding of an entitlement to forage, and, in addition, a finding that that entitlement was being practised, is of potentially limited relevance when that finding relates to land and waters not in the immediate vicinity of a tenement.
[25] In this matter there are some other problems with a reliance on these Reports. Firstly, with respect to the Katherine Land Claim Report, although Kearney J found an entitlement to forage, he said (at 36): “The evidence related largely to the southern part of the claim area.” This part of the claim area would be at least 40 kilometres south of the proposed tenement. Moreover in another part of his Report, Kearney J said (at p.34): “the spiritual affiliations of the Jawoyn diminish the further north one goes, with the exception of the Bula sites well to the north-east and the area around Edith Falls. It is clear that a boundary must be drawn to delimit the land to which the Jawoyn currently have spiritual affiliations … it appears to me that the area I have indicated in red on the fold-out plan encompasses as well as can be the country within the sphere of influence of the sites to which the Jawoyn have established common spiritual affiliations …. As to the residue of Area 1, I consider that the evidence does not establish common spiritual affiliations to sites within whose sphere of influence that land lies. I observe also that the evidence does not establish any considerable strength of traditional attachment to that land.” In fact His Honour’s description of land to which he found the Jawoyn had not established a considerable strength of traditional attachment, was that area to the immediate south of the proposed tenement. The areas where His Honour found such attachment are more than 50 kilometres south of EL 10137.
[26] In addition, the findings with respect to foraging, relate to activities that were taking place almost 20 years ago. While that does not mean that such foraging does not continue, there needs to be contemporary primary evidence that gives credence to the proposition that there are current and ongoing community or social activities occurring on the proposed tenement.
[27] Likewise there are some difficulties with the findings of Gray J in the Alligator Land Claim Report, so far as it relates to the entitlement to forage. His Honour makes these observations (at para 4.27):
“It may be that the entitlement by Aboriginal tradition to forage as of right over the lands claimed is held by a wider group of people than the three mowurrwurr. It is likely that that entitlement is one of the Jawoyn language group as a whole. It is most certainly held by members of the three mowurrwurr. Numerous references were made in evidence to foraging in early days and to various types of bush tucker. They included fishing and catching file snakes and turtles in rivers and creeks, digging yams and hunting kangaroos and porcupines. Peter Jatbula gave detailed evidence about a technique of poisoning fish, to render them unconscious so they could be caught. Nipper Brown described swimming underwater to catch turtles and crocodiles. Goanna was a popular form of bush tucker. In addition to food, there was evidence about stone spearheads and knives (called lawk in the Jawoyn language) and about bamboo spear shafts. Hunting for food was one way in which some of the claimants described the exercise of their responsibilities to look after the country.”
[28] It is clear that His Honour’s findings with respect to the entitlement to forage are historical. This is made clear in Section 5 of the Report: “Strength of Attachment”. Accordingly any reliance on the findings of an historical entitlement to forage as the basis for a suggestion that there are community or social activities on the area of the proposed tenement, must be viewed with some caution. Not only was the area, the subject of His Honour’s report, not immediately adjacent to the proposed tenement, but, in addition, any determination of foraging rights related to evidence of past practices. Again, the contents of this Report highlights the need for any Member who is presented with Reports under the Aboriginal Land Rights (Northern Territory) Act 1976, to view those Reports with a degree of caution, and to have regard to their age, their statutory background and to the whole scheme of the Report. Quoting select quotations from only a part of the Report cannot be regarded as satisfactory, having regard to the obligations of a Member conducting an expedited procedure objection inquiry under the Native Title Act 1993 – see comments on issues that arise when reliance is made on Land Claims Reports in Risk/Corporate Developments Pty Ltd/Northern Territory DO01/77, unreported, Member Sosso, 15 April 2002 and Dixon/Plenty River Corp Ltd/Northern Territory DO01/51, unreported, Member Stuckey-Clarke, 19 April 2002.
[29] Each of the native title parties made reference to this Report, and in particular, to paragraph 4.27 (as quoted above) in support of their contentions (OCLCR at para 20). However, it is clear that His Honour’s comments not only relate to a different geographical area, but also insofar as his comments have wider geographical significance, they relate to traditional entitlements, as distinct from contemporary activities. Very little support can be gleaned, in my opinion, from the findings of His Honour in the Alligator Land Claim for any suggestion of community or social activities by any of the native title parties on the subject land and waters.
[30] The native title parties also sought to rely on findings in both Reports with respect to issues relating to the protection of sites and generally the spiritual significance of sites on Jawoyn country (OCLCR at paras 7 and 9). I accept, in this context, that Kearney J found in the Katherine Land Claim Report, that traditional Jawoyn country includes the area of the proposed tenement (para 43). Nevertheless while both Reports contain much useful information about spiritual affiliations to sites on traditional country as well the various spiritual responsibilities that are held by certain Jawoyn People (teaching, custodial and protective), there is no specific findings of either Judge that are of direct relevance to the land and waters that comprise the proposed tenement. If there is material before the Tribunal about areas or sites on or within close proximity to land and waters the subject of an expedited procedure inquiry, there is no doubt that findings by an Aboriginal Land Commissioner about the type of matters just outlined, would be of great assistance to the Tribunal. However general comments in a Land Claims Report which are not supported by some primary evidence about areas or sites of particular significance on, or in close proximity to the land and waters the subject of an inquiry, will not be sufficient to allow a Member to make a positive finding pursuant to section 237(b).
Aboriginal Communities
[31] There are no Aboriginal communities located on, or in the immediate vicinity of, the proposed tenement. Each of the native title parties suggest (OSC at para 39) that there are several communities in the vicinity of the licence area, but only Pine Creek is given as an example. However, in each of the Form 4’s that were lodged, in addition to Pine Creek, Kybrook Farm and Mary River Ranger Station are also mentioned. The government party has estimated (GPSC at para 27) that Pine Creek and Kybrook Farm are 16 kilometres south of the proposed tenement and that Mary River Ranger Station is 30 kilometres east. The native title parties did not challenge this estimation of distance. It should be noted that in the map produced by the Department of Business Industry and Resources Development which sets out Exploration Licence Application 10137, the distance to Pine Creek is marked as approximately 21 kilometres, to Kybrook Farm 25 kilometres and to Mary River Ranger Station 30 kilometres.
Recorded or Registered Sites
[32] There are no areas or sites recorded or registered by the Aboriginal Areas Protection Authority within the area of the proposed tenement.
[33] The only site in the immediate vicinity of the subject area is a recorded site to the west, in an area north of Frances Creek. It is described by the AAPA as “Male Frill Neck (Frances Creek): A hill much affected by a subsidiary pit at Frances Creek.” This site has only been accorded a 10 status by the AAPA at this juncture.
[34] Mr Ford refers to a site on Mary River Station which he describes as “Andetdetla”. The Tribunal was presented evidence about this site in Michael Page. It would appear that this site is not located on or near the proposed tenement. The grantee party has estimated (Gr2 at p.4) that it is located some 18 kilometres away, and this estimation has not been challenged.
Previous and Proposed Mining/ Exploration Activity
[35] The area comprising the proposed tenement has for some time, been the subject of fairly extensive mining and exploration tenement grants by the Northern Territory. The government party supplied the following details of prior mining tenements granted over the same area:
Mining Lease – ML 1421 A, 1422 A;
Special Mineral Lease – SML 10;
Mineral Lease (Northern) – MLN 954;
Substitute Exploration Licence – SEL 8032;
Exploration Licences – EL 84, 1093, 2000, 2047, 2818, 3174, 4246, 6336, 6507, 7486, 7705, 8348, 9369, 9551.
[36] While the government party has not supplied information on the nature of any mining or exploration activity that may have occurred as a result of the grant of the above tenements, mapping produced by the Department of Business, Industry and Resource Development (submitted by the government party) indicates that there are granted mining tenements to the north, west, south and south-west of the proposed tenement. In addition there are at least two granted Exploration Licences (EL9104 and EL8313) in the immediate vicinity. The northern and north-western boundary of ELA10137 are bordered by ELA9999, and ELA9999 itself adjoins ELA9942 on its northern boundary. Both ELA9999 and 9942 were considered by Deputy President Franklyn in Gabriel Hazelbane & Ors/Northern Territory/Johnston DO01/40-41, unreported, 27 March 2002 (“Gabriel Hazelbane”). Deputy President Franklyn determined that the grant of both ELA9942 and 9999 attracted the expedited procedure. A substantial portion of the eastern boundary of the proposed tenement adjoins ELA22269. In Michael Page I found that the grant of this exploration licence also attracted the expedited procedure. In summary then, the proposed tenement along almost all of its eastern, northern and western boundaries adjoins tenements already granted or which the Tribunal has determined attract the expedited procedure.
[37] In the Application for the Grant of an Exploration Licence the grantee party made the following comments about the proposed work program for the first year: “I am the owner of existing tenements, EL 9265 EL 8313 and RO 1329. My J.V. Partner & myself will be drilling on RO1329 in the near future (3 months). This adjoining tenement may have similar repitions (sic) of what we have already discovered: Literature review, obtain aerial photography, ground mapping and traverses, stream sediment, Bleg (sic) as required, rock chip.”
[38] It would appear that the tenements referred to by the grantee party adjoin the western and south western boundary of the proposed tenement and are located in the Frances Creek locality.
[39] The grantee party also submitted (Gr2) extracts from a document apparently prepared by Andrew Drummond & Associates Pty Ltd which was in the nature of an independent consulting geologists report for Arafura Resources NL. The extract supplied, deals with the Frances Creek Mine Project and sets out at some considerable length the previous mining and exploration activities on and immediately surrounding the proposed tenement. In particular it details previous activity carried out with respect to EL1093 (CRA Exploration Pty Ltd in 1978), EL 6336 and 6507 (Griffith, Szczyglowski and Ashton Mining Ltd 1988-1992), EL 7705 (Dominion Mining and Aztec 1992-1997) and EL 8348 (Corporate Developments Pty Ltd 1993-1995). It is very clear from this document that the area in the vicinity of Frances Creek (including the proposed tenement) has been the subject of mining for many years. Reference is made, for example, to the Frances Creek iron mines which were mined between 1966 and 1974. It is also clear that this area remains of considerable interest to persons wishing to explore for mineral deposits.
[40] The native title party contended that evidence submitted by the grantee party about activities on EL9672 were irrelevant to this inquiry because there was no evidence that this tenement was/is held by the grantee party. Subsequently (Gr2) the grantee party clarified the relationship between Star Money Lenders Pty Ltd, McCleary Investments Pty Ltd, Arafura Resources NL and Norman Sydney McCleary. It is not necessary for the purposes of this inquiry to deal with these issues, other than to note that the explanation given by the grantee party satisfied the Tribunal.
Expert Evidence Adduced by the native title party
[41] In addition to the Affidavit of Mr Ford, and the abovementioned contentions, the native title parties submitted, inter alia, the standard Affidavits of Mr Jeffrey Stead and Mr Mark Foy as well as standard documents dealings with rights conferred under exploration licences and the analysis of legislation dealing with significant areas/sites.
[42] I have considered this material in a number of inquiries, and so far as is relevant to this matter, I adopt my analysis of this evidence which is set out in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory, DO01/13, unreported, 1 February 2002.
Legal Principles
[43] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
[44] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“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.”
Section 237(a) – Interference with the carrying on of community or social activities
[45] The Tribunal has been presented with very little evidence of any community or social activities that occur on the proposed tenement. It is clear that there are no Aboriginal communities in the immediate locality. The only primary evidence is from Mr Ford who lives at Pine Creek which is approximately 20 kilometres from this area. There is no suggestion of any other persons or communities living any closer to the subject area.
[46] Mr Ford refers to hunting up to the old airstrip, which is next to ELA9942. This is outside the proposed tenement, and about 5 kilometres from the northern boundary. Reference is also made to travelling from the airstrip to the gorge in the northern portion of ELA22269 and then on to Mary River Homestead. None of this would entail actually traversing the proposed tenement, with all of these places being outside of its boundaries.
[47] Nevertheless Mr Ford does depose to travelling south from the old airstrip to Frances Creek mine and travelling through the subject area. It is said that these trips occur every second weekend and involve not only Mr Ford but other traditional owners and family. It would appear that visits are also made during holiday periods (with the July school holidays and Easter mentioned).
[48] Activities engaged in include shooting animals from the road. Fishing takes place along Frances Creek, and both porcupine and long yam are obtained in this general area. Ochre is collected and swimming and fishing occur at the Frances Creek mine dam.
[49] It would appear that Affidavits provided by Mr Ford to the expedited procedure objection inquiries conducted by Deputy President Franklyn in relation to the tenements immediately to the north of ELA10137 were almost identical to those before me. Deputy President Franklyn made these observations ([9] pp 7-8):
“The roads referred to are on Ban Ban Springs Station, or 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 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 same … 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.”
[50] The analysis of Deputy President Franklyn is of direct relevance to this inquiry. Each of his findings can likewise be made in this matter. The evidence presented is short in compass and vague. It is not clear to what extent the subject area is traversed or the subject of hunting, gathering, fishing or meeting activities. Further it is not at all obvious how many people engage in these activities.
[51] Even if it was the case that the subject area is used for the activities mentioned by Mr Ford, there is no suggestion that any previous mining or exploration activity has interfered with these activities. Indeed, the fact that Mr Ford deposes that hunting, fishing and gathering of bush tucker takes place so regularly over terrain that is or was the subject of mining and exploration grants, would suggest that the grant of these tenements has had only a minimal impact on these activities.
[52] French J pointed out in Smith v Western Australia (2001) 108 FCR 442 that the concept of interference in section 237(a) is evaluative. The impact must be substantial. Trivial impacts are outside the scope of the kind of interference contemplated by the section. In assessing the extent of the interference, His Honour also said that the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial.
[53] In this matter there is evidence of extensive and ongoing mining and exploration activity in the general area of the proposed tenement. There is also evidence that the subject land and waters have themselves been the subject of many previous tenement grants. Further all of the relevant area falls within pastoral leases, and therefore the exercise of any native title rights is subject to the lawful activities of leaseholders – section 44H.
[54] There is very little direct evidence of the community and social activities that actually occur on the proposed tenement. While Mr Ford deposes to such activities, the essence of his Affidavit is of activities over a wide area. It is certainly not clear that the subject area is a central point in these activities. Indeed, it would appear to be merely a relatively small area which falls between other and more important locations (e.g. the Frances Creek mine dam, the airstrip etc).
[55] As Deputy President Franklyn highlights, Mr Ford does not suggest that previous mining activities have substantially interfered with or had a deleterious impact on the hunting and other activities that he deposes to. One would assume that, having regard to the fact that this part of the Northern Territory has been subject to so much mining and exploration activity, if problems had occurred, these would be drawn to the Tribunal’s attention. It is incongruous that Mr Ford highlights the rich nature of the ongoing community and social activities in this general area (including, presumably, land already subject to exploration licences) on the one hand and yet then suggests that the grant of this exploration licence may have such a serious impact on hunting.
[56] Even if one assumes that there is a level of social and community activity on the proposed tenement which exceeds that disclosed by the evidence, the Tribunal also has before it material from the government party about the extensive regulatory regime in force which prevents the type of activities that would result in disruptions to the activities deposed of by Mr Ford. The Tribunal is entitled to apply the presumption of regularity in the absence of evidence to the contrary. Applying this presumption in this matter, and having regard to the regulatory regime in force, I find that there is no real chance or likelihood that the grant of the exploration licence will directly interfere with the community or social activities of any of the native title parties.
[57] Whilst I am not prepared to find that there is no likelihood of any intersection between exploration activities on the proposed tenement and the community and social activities of the native title holders, I find that it is likely to be an insignificant one. It is likely that if any interference occurs it would be insubstantial in nature, short in duration and of limited geographical application. In the context of the ongoing pastoral activities and the ongoing mining and exploration activity in this area, and having regard to the nature and frequency of community and social activities, I find that the grant of the proposed tenement would be unlikely to have a direct impact within the meaning of section 237(a).
Section 237(b) – Areas or sites of particular significance
[58] There are no sites on the proposed tenement that have been recorded or registered by the AAPA. Further, the native title parties in their respective Form 4’s and Contentions do not identify any specific areas or sites on the proposed tenement which are of particular significance.
[59] Whilst there is one recorded site in the immediate vicinity of the proposed tenement (AAPA 5270-66), Mr Ford makes no mention of it in his Affidavit, and even though the Objectors Form 4’s do mention registered and recorded sites with a 15 km radius of the tenement area, this site is not mentioned. While the various Form 4’s assert (at para 14) that “it is highly likely that there are other sites within the ELA area”, no specific information is provided about these areas or sites.
[60] The task required of the Tribunal when making an inquiry pursuant to section 237(b) is to weigh up the significance of an identified area or site, and then determine if the proposed act is likely to interfere with that area or site. The Tribunal, when presented with evidence of the existence of an area or site, its significance for the native title holders, and the authority of the person deposing to its significance and their right to speak for it, will determine if section 237(b) applies. However, the Tribunal must be presented with that evidence, it is not sufficient for a native title party to make assertions in the abstract about the likelihood or probability of the existence of unidentified areas or sites. The very fact that an Objector is unable to identify an area or site, undermines suggestions that these unidentified and unnamed areas or sites are of particular significance. As Deputy President Franklyn said in Hicks/Western Australia/Legend Mining NL WO99/7, unreported 25 September 2000 (at p 6): “a consideration of the question whether a proposed act is likely or not likely to interfere with something requires evidence to show that the something exists and therefore is capable of being interfered with by the proposed act.”
[61] The only identified site which the native title parties assert is of particular significance is Andetdetla. The problem is that although Mr Ford refers to it as a ceremony place, he then goes on to say that he was told about it by Roy Anderson and Steve Wilika. It is clear that Mr Ford’s knowledge of Andetdetla is derivative. He does not say that he visits, or has ever visited the site. He does not say that this site is of particular significance or importance. Moreover, he does not say that he can speak about it either as a result of his own knowledge of it, or that he has the authority to do so.
[62] In Michael Page I made these comments about Mr Ford’s evidence of Andetdetla (at [46]): “there is no direct evidence from Mr Ford about the site, rather his passing reference is limited to the fact that he was told about it by Mr Anderson and Mr Wilika. He does not seem to have any personal knowledge of the site or any involvement in ceremonies conducted there.” Clearly the evidence presented to the Tribunal about this site is inadequate. It is impossible to conclude that it is an area or site of particular significance to native title holders in accordance with their traditions because no such evidence has been presented.
[63] The other problem faced by the Tribunal is that not only is Andetdetla not located within the subject area, it is also not in the immediate vicinity. Unfortunately the mapping supplied by both the government and native title parties is not presented in a manner where it is possible to accurately measure the distance between the proposed tenement and this site. Suffice it to say, it would appear to be some distance away. In Gabriel Hazelbane Deputy President Franklyn concludes (at p 8): “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’.
[64] There was a considerable body of evidence presented by each of the parties about the type of matters that need to be considered as part of a section 237(b) inquiry. In particular the government party and the native title parties submitted a large amount of material on the relevant law in place in the Northern Territory in relation to sacred sites and of the effectiveness of those laws. In the event however, while considering this material, it is not necessary for me to refer to it. Fundamentally the material before the Tribunal about alleged areas or sites of particular significance is slight. It is clear that there are no such sites or areas either within or within close proximity of the proposed tenement. The only site alleged to be of such significance is some distance away from the subject area, and Mr Ford has not provided any information that could justify a finding that this is a site of particular significance. It is not even clear that Mr Ford has the requisite authority to speak on behalf of this site. If he has, then the native title parties have failed to draw specific material to that effect, to the attention of the Tribunal. In these circumstances the issue of likelihood does not arise, as there is no evidence of any areas or sites of particular significance that would found an inquiry pursuant to section 237(b).
Section 237(c) – Major disturbance to land or waters
[65] As previously pointed out, there are no Aboriginal communities on or near the proposed tenement. In addition, there are no sites of particular significance on or near to the subject land, and neither are there any sites registered or recorded by the AAPA.
[66] This part of the Northern Territory has been subject to quite intensive exploration and mining activity for a number of years. No evidence was presented to the Tribunal that this activity has resulted in any serious disturbance to either the activities of the native title holders or the land and waters of this locality.
[67] The evidence of community or social activities by native title holders would indicate that such activity is focused on the area of Frances Creek, and limited both in terms of the times that it is conducted and the persons who are involved.
[68] The government party has presented a considerable body of evidence on the relevant regulatory scheme in place which governs the exercise of rights under an exploration licence. I have previously found that the legal framework governing the exercise of exploration rights in the Northern Territory is comprehensive and is designed to provide significant protection to native title rights and interests. Whilst the mere existence of this regime does not provide a complete answer to a section 237(c) inquiry, nevertheless when combined with evidence of a grantee party’s proposed work program and intentions, and applying the presumption of regularity (when appropriate), it does go quite some distance towards reaching a conclusion on the likelihood of major disturbance under this paragraph.
[69] One issue which is of critical importance in such an inquiry is whether the land and waters in question contain sensitive geological or environmental formations/areas, such that even with the legal regime operating as it should, and considering the intentions of the grantee party, there may nevertheless be a real risk or chance of major disturbance occurring. In this inquiry, however, no such evidence of any particular geological or environmental matters was drawn to the Tribunal’s attention.
[70] In addition, the grantee party has submitted evidence of how it has conducted exploration activities previously, particularly focusing on its record of rehabilitation of substantial disturbance on exploration titles. The grantee party said that it not only abided by the conditions which routinely attach to all exploration licences in the Northern Territory, but that it also conducts its exploration in accordance with the Code of Conduct for Mineral Explorers in the Northern Territory.
[71] I am unable to find, on the evidence presented, that the grant of the proposed tenement is likely to involve major disturbance to any land or waters concerned, or create rights, the exercise of which is likely to involve major disturbance to any land or waters concerned.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 10137 to Norman Sydney McCleary is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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