George Huddleston, Lenny Liddy, Paddy Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane/Northern Territory/Stephen Darryl Moffatt - [2002] NNTTA 16

NATIONAL NATIVE TITLE TRIBUNAL

George Huddleston, Lenny Liddy, Paddy Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane/Northern Territory/Stephen Darryl Moffatt, [2002] NNTTA 16 (1 February 2002)

Application No: DO01/19

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

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IN THE MATTER of a Future Act Determination Application

George Huddleston, Lenny Liddy, Paddy Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane (Native Title Party)

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Northern Territory of Australia (Government Party)

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Stephen Darryl Moffatt (Grantee Party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:       John Sosso
Place:             Brisbane
Date:              1 February 2002

Hearing dates: 10, 22 October and 5, 15, 16 and 30 November 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: Mrs Sandra Johnson

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – protocols for guidance of parties – parties contentions – whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – major disturbance to land or waters – protection under existing legislation – risk of environmental or cultural disturbance remote – an act which attracts the expedited procedure.

Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Mining Act (NT) ss24, 166, 166A, 171.
Native Title Act 1993 (Cth) ss29, 32, 77, 109, 146, 151, 156, 237.

Cases:Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13 Member Sosso 1 February 2002
R v Anunga (1976) 11 ALR 412
Smith v Western Australia (2001) 108 FCR 442

REASONS FOR DETERMINATION

Background

[1] On 13 December 2000 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 22457 (“the proposed tenement”) to Stephen Darryl Moffatt (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.

[2] The proposed tenement covers an area of 82 blocks (a block is approximately 2.9 square kilometres) and is situated wholly within two pastoral leasehold properties: Perpetual Pastoral Lease (PPL) 1058 (commonly referred to as “Jindare”) and PPL 815 (commonly referred to as “Mary River West”).

[3] On 1 February 2001 a native title determination application was filed with the Federal Court (D6006/01). The name of the application is “Mary River West” and the applicants are Mr George Huddlestone, Mr Lenny Liddy, Mr Paddy Huddleston, Mr Robert Patrick Markham, Mr Tony Kenyon and Mr Gabriel Hazelbane. The application was entered on the Register of Native Title Claims on 1 March 2001. The Mary River West application covers the area of the proposed tenement.

[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (9 April 2001) after the section 29(4) notification day (13 December 2000) – section 32(3). The named objectors were the abovenamed applicants. I have previously determined that the Form 4 objection has been properly accepted by the Tribunal pursuant to section 77(2).

[5] On 1 October 2001 Deputy President Sumner, acting in his capacity as delegate of the President, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.

[6] Prior to my appointment, Deputy President Sumner made Directions on 11 July 2001 dealing with the manner in which the expedited procedure inquiry would be conducted. Those directions have been subsequently followed by all parties to this inquiry. I issued further directions, and there have been a number of listings hearings during the course of this matter, mostly by teleconference, but including one in Darwin on 16 November 2001 where all parties (or their representative) appeared in person before the Tribunal.

[7] Apart from written material presented to the Tribunal, and the oral presentations of legal representatives of the government and native title parties, as well as the representative of the grantee party, it was also put to the Tribunal by the native title party that there should be a hearing of the matter on country, at Kybrook Farm via Pine Creek. Kybrook Farm is an Aboriginal community which can be located by driving approximately 5 kilometres south from the town of Pine Creek along the Stuart Highway and then a further kilometre along an unsealed road. The native title party also submitted that following the hearing at Kybrook Farm, the Tribunal reconvene at a site alleged to be of particular significance – Japenjin – located to the north of Pine Creek. The following reasons were adduced: (OSC at para 30).

“a.    Given that this is likely to be one of the earlier Objection matters in the Northern Territory, it is appropriate that there be an opportunity for oral submissions to be made to the NNTT about the legal effect of the statutory regime subsisting in the Northern Territory on the matters before it.
b.    It is appropriate that the NNTT Member making the decision in this matter, and other Objection matters in the future have had some direct exposure to:
i.        The community where some of the native title claim group live;
ii.The community or social activities carried on by those people at the community and in the licence area;
iii.Direct expressions of people’s concern about the impact of exploration activities on those activities, areas and sites of particular significance, and about disturbance to land or waters.”

[8] Neither the government or grantee parties objected to an on country hearing, although initially the grantee party suggested that it be held at Pine Creek where “the wider community would be able to gain an understanding of the Native Title process, and how it impacts on their every day activities.” (Gr2 at p2). In response, Mr Frith made these submissions to the Tribunal (Transcript of Directions Hearing 10 October 2001 at pp 19-20):

“Mr Frith … would certainly oppose any application or any hearing on country that would be in Pine Creek or something like that; the benefit for the Tribunal of the hearing on country is that they are able to get the best evidence from the native title – from the witnesses. That certainly would be better at their own community at Kybrook Farm rather than in Pine Creek itself.
Mr Sosso: Why is that?
Mr Frith: Because that is where they live, that is where they are comfortable with giving evidence. We are talking about country, and I would submit that they would certainly be less comfortable in Pine Creek exposed to a broader community, and was not indigenous community. I submit that the contention of the grantee party that the wider community would be able to gain an understanding of the native title process isn’t as strong a consideration as that of the Tribunal obtaining the best evidence available.”
The Tribunal accepted the submissions of the native title party that, in the event that an on country hearing be convened, it would be initially held at Kybrook Farm.

While section 151 of the Act enables the Tribunal to make a determination “on the papers”, nevertheless the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In this instance, the fact that there was unanimity amongst the parties for an “on country” hearing, persuaded the Tribunal to agree to this course of action. Accordingly an on country hearing was held at Kybrook Farm on 15 November 2001.

[9] The Tribunal was informed by the native title party that it proposed to call evidence from Mr George Huddlestone who would be the primary witness and who would be supported by other people with responsibility for the country which is the subject of the proposed future act. The Tribunal was also informed that it was not envisaged that any evidence of a confidential nature would be given, and that the evidence would be led in the form of an examination in chief (OHC at paras 11-14). Any person wishing to give testimony to the Tribunal was required to take an oath or affirmation. The government party sought leave to cross-examine witnesses (s 156(3)), and leave was granted. In accordance with procedures agreed to, Mr George Huddlestone and Mr Lenny Liddy gave evidence at Kybrook Farm after taking an affirmation. When the Tribunal reconvened at Japenjin Mr Huddlestone alone gave testimony.

[10] Section 109(1) provides that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. Subsection 2 requires the Tribunal to take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to a proceeding. Finally, subsection 3 ensures that in carrying out its functions, the Tribunal is not bound by technicalities, legal forms or rules of evidence.

[11] Prior to the on country hearing I issued protocols for the guidance of the parties. Those protocols are set out below:

Should there be any welcome, the Member will respond. Other parties are at liberty to also
respond.
Hearings will commence with a brief introductory statement by the Member, with parties at
liberty to raise any preliminary points of law or procedure.
Hearings will be in public. During the course of the hearing, either on its own initiative, or on the application of a party, the Tribunal may direct that a part of the hearing be held in private.
The hearing will be recorded. Transcription of the recording will be determined after the hearing, however, if a party wishes to obtain a transcribed copy, that issue should be raised at the hearing.
If any part of the hearing is held in private, the Tribunal will determine whether to cease recording after hearing the submissions of the parties.
Any person wishing to give evidence must take an oath or affirmation.
Cross-examination and re-examination will only be by leave of the Tribunal.
If part of a hearing is held in private the Member will give directions, after hearing from the parties, on those persons who may be present. In reaching a determination the Member will have due regard to the customary concerns of Aboriginal People.
Evidence given or obtained in a private hearing will be subject to such confidentiality orders as are appropriate, after hearing submissions of the parties.

10.As a matter of procedural fairness, when evidence is heard in private those persons present will be:
·     Persons authorised to hear the evidence according to their traditions;
·     Counsel;
·     Tribunal case manager – unless an objection is raised;
·     A legally unrepresented party;
·     Such other persons as are agreed by the native title party.
11.Hearings will be conducted in an informal manner.
12.Counsel and parties are not required to abide by any particular dress requirements.
13.Grouped evidence will be permitted, provided all persons wishing to address the Tribunal have taken an oath or affirmation, and seek permission of the Tribunal before speaking.

[12] Apart from the evidence received “on country” all parties have submitted to the Tribunal extensive written contentions, which are as follows:

Government Party Contentions

Statement of Contentions of Government Party (“GPSC”) dated 19-9-2001;

Contentions in Reply (“GPCR”) dated 17-10-2001;

Final Contentions of Government Party (“GPFC”) dated 7-12-2001; and

Contentions in Relation to Expert Evidence (“GPEE”) dated 24-12-2001.

Native Title Party Contentions

Statement of Contentions of Objectors (“OSC”) dated 4-10-2001;

Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 17-10-2001;

Contentions of Objectors Hearing on Country (“OHC”) dated 19-10-2001;

Response to Tribunal Matters (“ORTM”) dated 5-12-2001;

Contentions Arising out of Hearing On Country (“OCHC”) dated 10-12-2001; and

Reply to Final Contentions of Government Party (“ORFC”) dated 13-12-2001

Objectors Reply to Contentions in Relation to Expert Evidence (“ORCREE”) dated 18-01-2002

Grantee Party Contentions

Grantee Party Correspondence (“Gr1”) dated 4-10-2001; and

Additional Information in Response to Northern Land Council’s Objection to Inclusion in an Expedited Procedure Exploration Licence Application 22457 (“Gr2”) dated 9-10-2001.

Grantee Party Contentions Re: On-Country Hearing – Kybrook and Japenjin (“Gr3”) dated 27-11-2001

Response to Contentions Arising out of Hearing on Country (“Gr4”) dated 11-12-2001

[13] I will refer to pertinent parts of those contentions later. In addition the native title party submitted on 5 October 2001 a witness statement of Mr George Huddlestone. On 9 November 2001 Mr Mark Rumler, solicitor with the Northern Land Council supplied the Tribunal and the other parties with a substituted Witness Statement of Mr Huddlestone. At the On-Country hearing at Kybrook Farm Mr Frith gave this explanation for the substitution (Transcript at p 4):

“The reason for the substitution of the amended witness statement was a mishearing of the name of the sites that is referred to in the witness statement and a conflation of information about two sites into one in the original witness statement. In the substituted statement that information has been teased out and refers properly to two separate sites.”
The substituted Witness Statement is set out in full below:
“1. The area of the Mary River West native title application includes the area of ELA 22457.
2.   The ELA area is all Wagiman country. For strangers we have to wet their heads before they go in, and introduce them to our country.
3.   I know sites in and around the ELA area. I know the site “Japejin”. It is a spring where we get sugarbag grass. That spring is a sacred place to us and that grass is a special kind of grass that we use to get sugarbag. They built a dam on top of that spring at Japejin without asking us – they should have asked us first. We have to perform a head wetting ceremony at Japejin for strangers to introduce them to that place. If we don’t do that ceremony for strangers and they drink that water, they’ll get sick.
4.   We don’t want that company going in there at Japejin and disturbing that place more. They might want to come and take water from that dam but they can’t.
5.   I also know that Jaben Ubawu sites which are close to the ELA area. We still get red ochre from those Jaben sites for the ceremony for making the young man. That’s a real important place to us, that Jaben - it’s the dreaming for the blanket lizard. That blanket lizard travelled through the country from the saltwater to the west, right across the ELA area to the hills and to the billabongs which are the Jaben Ubawu sites. He then went on to Frances Creek mine and put the red ochre all around there.
6.   That Jaben Ubawu place at the billabong, that’s where they started to put a dam where they wanted to grow up barramundi. We stopped that dam in 1982. Any damage at that place will make everyone sick. We’ve got ceremony there, which is passed on from generation to generation.
7.   Jundakgan, near Union Reef, is a Taipan snake. It’s where two snakes come together, and where Wagiman and Jawoyn meet up. If the company does work and disturbs Jundakgan, Wagiman people will get sick, even if that disturbance comes from long way away; doesn't have to be up close. If there is damage to trees and land and animals like kangaroo on Wagiman country, Wagiman people will get sick. Jundakgan is important because it links up with Jawoyn and the Bula Dreaming.
8.   The stone quarry up from McDonald Airstrip is Jimbilang. It’s a sacred place where we still go to get rock and make spear point, axe, knife. We split the rock to make them. We still do it. We still go there all the time. If we use a stone knife from that place to catch and cut up a kangaroo, we have to wash that knife and put back at that place before we take that meat away. If we don’t do that and we give that meat to the old people, they’ll get sick.
9.   If that exploration company is there we’ll go out and keep an eye on them, and make sure everything is all right. Otherwise they might do something wrong and we’ll all get sick. They can only drill a long way from sacred sites: maybe 10 kilometres, maybe 20. We’ll show them where it’s okay. They can’t take trees. They can’t lock gates.
10.    Wagiman still go hunting and fishing on that country in the ELA area. Last year I went there from the Town Camp at Pine Creek up to McDonald Airfield. We go looking for kangaroo, porcupine, rock python, sugarbag, wild pig. We go footwalking; it is too rough for motor car. Footwalking right through that country, hunting and camping along the way.
11.    We go up Jindare side all the time, along that Umbrawarra Gorge road. We walk up that creek, right up into the ELA area. We go to Jerri-Jerri; that’s a bower bird place, we have to call out to him in Wagiman language when we go up there.
12.    I’m worried about that oil or dirt being put into the creeks. It might kill all the good feed: the fish and turtles, all the wildlife.”

[14] The native title party also relied on the findings of the Aboriginal Land Commissioner, Mr Justice Kearney, in the Upper Daly Land Claim Report (Volume 3) – Report No 37. It should be noted that Volume 3 concerned the claim by the Wagiman People. The Tribunal was supplied with extremely short extracts from Justice Kearney’s Report (p 61 and p 84). The reasons adduced by the native title party for the Tribunal adopting the findings of Mr Justice Kearney were identical to those adduced to the Tribunal into the inquiry DO 01/13. The government party, on the other hand, suggested that the correlation between the traditional owners as identified in the Upper Daly Land Claim Report and the native title claim group is unknown, and even if there was a correlation, the extracts were of little, if any, relevance to the inquiry (GPCR at para 7(a)).

[15] The native title party did not address the concerns of the government party. The Tribunal, however, has perused Volume 3 of the Upper Daly Land Claim Report and is prepared to accept the extracts into the evidence, although they are not of particular assistance. Clearly the native title party in only submitting short extracts from a large Report, and not addressing the type of issues raised by the government party is not assisting the Tribunal. If parties wish the Tribunal to exercise its powers under section 146(b) and adopt the findings of an Aboriginal Land Commissioner, then the party making that submission should supply the Tribunal with a copy of the full Report and address the relationship between the claimants under the Aboriginal Land Rights (Northern Territory) Act 1976 and native title holders under the Native Title Act 1993.

General Legal Principles

[16] Both the government and native title parties have submitted generic submissions on the legal principles that should guide the Tribunal in conducting expedited procedure inquiries, in this, and other inquiries I am currently conducting in the Northern Territory. I indicated to the parties that I would set out in one determination the general legal principles governing the inquiry process, and refer to those principles in the following determinations unless different or special legal principles were raised. In this particular inquiry the grantee party has not made specific submissions on general legal principles governing the inquiry process.

[17] I adopt for the purposes of this inquiry the general legal principles I set out at paragraphs 20 – 47 in Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO 01/13 1 February 2002.

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

Introduction and general legal principles

[18] The native title party contended that the grant of the proposed tenement would be likely to directly interfere with the carrying on of the community or social activities of the native title claim group, namely (OSC at paras 33-36):

Members of the native title claim group exercise their native title rights within and in the vicinity of the licence area;
In exercising such rights and interests, the community or social activities on and around the licence area are likely to be interfered with;
The act will interfere with claimants’ physical ability to enjoy their native title rights – eg. impede hunting, fishing, gathering or conduct of religious ceremonies;
The exercise of exploration licence rights is likely to directly interfere with the spiritual aspects of carrying on of community or social activities of the native title claim group.

[19] I adopt for the purposes of this inquiry the legal principles I set out on section 237(a) in Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory at paragraphs 49 – 62.

Native Title Party Submissions

[20] The native title party’s initial contentions were as follows:

(a)there are several communities (Pine Creek Town Camp and Kybrook Farm) in the vicinity of the proposed tenement which are occupied by members of the native title claim group;
(b)there are several roads inside and in the vicinity of the proposed tenement (Stuart Highway and several tracks off the Stuart Highway), that are used by members of the claim group to access the communities and other areas, for carrying on community and social activities;
(c)there are several water bodies (the upper portion of the Douglas River and its tributaries) and other areas of environmental significance in and around the proposed tenement which are used for fishing and drinking water, and may sustain and be part of areas and sites of significance;
(d)the claimed community or social activities included:
(i)foraging in respect of Douglas Hot Springs (to the west of the proposed tenement);
(ii)hunting, fishing and gathering of bush tucker (Witness Statement of George Huddlestone at paras 9 and 11);
(iii)collection of stone and other material for ceremonial and other purposes, including the making of artefacts – George Huddlestone at paras 4 and 7;
(iv)gathering of mineral resources for manufacture of tools and implements – George Huddlestone at para 7;
(v)religious activities;
(vi)quiet enjoyment and camping grounds – George Huddlestone at paras 4, 6, 7, 9 and 10;
(vii)looking after country by visiting and maintaining sites – George Huddlestone at para 10.

[21] With respect to the spiritual aspects of community or social activities, the native title party contended that there was an active community life in relation to the land, and a spiritual connection to, and responsibility for the land. It was also contended that custodians would get into trouble if they did not look after the land properly and that the community would be worried or upset by unauthorised activities on the land, such that there will be fear of illness or death if it is interfered with (OSC at para 39).

[22] It should be noted that with respect to the matters outlined in sub-paragraph (d)(i) above, reliance was placed on the findings of Mr Justice Kearney in the Upper Daly Land Claim Report at paragraphs 16-18 and 93-95.

[23] The native title party suggested that the presence of exploration equipment and personnel would be likely to reduce the willingness and capacity of members of the native title party carrying on community or social activities, and in particular hunting and fishing. One example given was the reluctance to use guns if there was exploration activity occurring on hunting grounds in the proposed tenement (OSC at para 45). The native title party also claimed likely interference to community or social activities as follows: (OSC at paras 45-49)

exploration vehicles using roads and tracks thereby disturbing, degrading, blocking etc those roads and tracks, and generally increasing traffic thus impacting on the use of them by members of the native title party;
construction of tracks, camps etc is likely to impact on the environment and therefore the ability of members of the claim group to use the area;
associated environmental impacts on flora and fauna as a result of exploration activity will be likely to reduce the availability, and discourage the use, of fauna and flora for hunting, gathering and ceremonial activities;
exploration activities, it was claimed, are likely to directly impact on the claimant’s ability, confidence and desire to access and use the area of the proposed tenement in a safe and unhindered manner;
the living conditions and general well being of residents of communities in the vicinity of the proposed tenement are likely to be directly interfered with;
there is a real and not remote chance that the ability of those claimants with specific responsibility for looking after sites will be affected and interfered with; and
traditional law and custom require consultation and permission before exploration proceeds. Failure to do so is a failure of respect and ignores the traditional life and activities of the native title party.

Government Party submissions

[24] The government party highlighted that the two communities mentioned by the native title party were both located outside of the area of the proposed tenement, with the nearest being 5 kilometres distant (GPCR at para 12).

[25] It was further contended that the use of roads and tracks by the grantee party would constitute an insubstantial impact, bordering on the trivial. Trivial impacts, it was contended, are not within the scope of section 237. In addition, the government party drew to the Tribunal’s attention the requirement to take into account constraints already imposed on community or social activities by third parties and external regulation (GPCR at para 13):

“It would be unreal to assume that the native title claim group members can attend to community or social activities on pastoral land in some sort of exclusive zone where impact from other lawful users is not tolerated. These other users need accommodate the activities of the native title claim group members and it must be presumed that concurrent rights-holders will respect the co-existent rights of others in relation to the land.”

[26] The government party contended that there was scant cogent evidence to support the native title party’s contentions. It was argued that the written evidence before the Tribunal (as distinct from the oral testimony given during the On-Country hearing), lacked such particularity that it was impossible for the Tribunal to attribute any evidentiary weight to the claimed community or social activities outlined at [20](d) other than the evidence of Mr Huddlestone’s attendance at Jimbalang quarry (GPCR para 14). Finally, with respect to the native title party’s contention about the requirement of traditional law and custom that native title holders be consulted, the government party argued that this amounted to a right of veto and was not supported by evidence, fell outside paragraph 237(a), and was addressed by the Second Schedule Conditions (GPCR at para 17).

[27] The government party drew the Tribunal’s attention to the contextual risk evaluation and said (GPCR at para 19):

“The evaluation by the Tribunal needs to include the following factors: the regulatory scheme which governs the exercise of rights under the grant of the proposed licence (presuming regularity); the lawful activities of third parties (most importantly, the pastoral lessee) conducted on, or in the vicinity of the land, which may impact on the carrying on of the community or social activities asserted, prior mining and/or exploration grants and pastoral leases over the same licence area and restrictions imposed by the general law upon the manner of engaging in activities on the land (eg restricted use of firearms, explosives and fire etc).”

[28] The government party also drew the Tribunal’s attention to a number of relevant statutory provisions. Importantly section 24(j) of the Mining Act provides that every exploration licence (other than in specified circumstances) shall be granted subject to a condition that the licensee:

“conduct his exploration programmes and other activities in such a way as not to interfere with existing roads, railways, telephone or telegraph lines, power lines and cables, water pipelines or dams or reservoirs or gas, oil, slurry or tailings pipelines or storage containers, situated on the licence area, or the lawful activities or rights of any person on or in relation to land adjacent to the licence area.”

Applying the presumption of regularity, the requirement that a licensee not interfere with the lawful activities or rights of any person on or in relation to land adjacent to the licence area, includes an important issue in assessing the likelihood of interference pursuant to section 237(a). Also of relevance in this regard is the operation of section 171 of the Mining Act. This section allows the relevant Minister to cancel an exploration licence if the holder of such a licence has contravened or not complied with a condition (such as section 24(j)).

Grantee Party submissions

[29] Mrs Johnson initially made the following submission on behalf of the grantee party (Gr1 at para 20): “Stephen will not impede the Native Title Rights of the Wagiman, Warai and Jawoyn Native Title Claimants, who may continue any activities they may already be using over the Exploration Licence Application area.”

Subsequently the grantee party also informed the Tribunal (Gr 2 at p1) that both McDonald Airstrip and Jimbilang would be excluded from any exploration program.

Conclusion

[30] Prior to the On-Country hearing, the only real evidence of community or social activities the Tribunal had before it comprised the unsigned and undated Witness Statement of Mr Huddlestone,, and two very short extracts from the Upper Daly Land Claim Report. The native title party chose not to lodge with the Tribunal statements from any of the other Objectors, any other members of the native title claim group or any other native title holders who were authorised to speak on behalf of the land or waters in question.

[31] With respect to hunting and fishing, Mr Huddlestone indicated that this still occurs and that he went to McDonald Airfield from Pine Creek Town Camp in 2000 to hunt for “kangaroo, porcupine, rock phyton, sugarbag and wild pig” (Witness Statement at para 10).

[32] During the On-Country hearing at Kybrook Farm the following evidence was given by Mr George Huddlestone immediately after describing the making of knives for hunting kangaroo, goanna or porcupine (Transcript pp 31-32):

“Mr Frith:   When did you do that?
George Huddlestone:       We can do that last year.
Mr Frith   Last year? Who was doing that? You went with Lenny?
George Huddlestone:      Yeah, with Lenny.
Mr Frith:  Anyone else?
George Huddlestone:      I use to take a couple of young boys down there. They don’t like to walk, the bush, you know too hot.

Mr Frith:  A couple of young boys, that’s too hot, walking in the bush.
Mr Sosso:I take it, Mr Frith, Mr Huddlestone is saying that he engages in that activity on a regular basis once a year?
Mr Frith:How many times you do that?
George Huddlestone:       Lots a time, you know.
Mr FrithLots of times.
George Huddlestone:       Rain time, we go out there, we find a big mob of bush tucker.
Mr Frith:At rain time we find big mob of bush tucker.”

Mr Huddlestone then went on to describe the cooking of kangaroo in a ground oven, and then the following exchange occurred (at p34):

Mr Sosso: Mr Huddlestone, how many people carry on hunting like that? Is it only the old
fellas, or is it the whole community?

George Huddlestone: The young fellas to go hunting, you know. Tell him what to do and … tell them
what’s got to go on to cook this one here.

Mr Sosso: You train the young fellas?
George Huddlestone: Yeah, we’re training all the young people in doing this.

[33] Under cross-examination from Mr Lavery, Mr Huddlestone indicated that hunting for bush tucker occurred through “the wet season” (p 44). He indicated that hunting was practised by him and Mr Lenny Liddy, who would drive to McDonald Airfield, which is located in the proposed tenement. Mr Huddlestone said: “in the wet time we go, we make camp and we look for bush tucker. We find bush tucker there. You can’t go too far and you find … big mob wet time.” (at p 44). Evidence was given that Mr Huddlestone and Mr Liddy may camp in a particular location for a week or two, and then decamp to another location for a similar period of time (at p 45). It became clear under cross-examination that hunting in this manner occurs “once a year” and for “a couple of weeks” (p45) and only during the wet season (p 46). Mr Liddy confirmed that hunting might occur once or twice a year and for one or two weeks, and further that most of this time he spent with Jabulgari (the traditional name for Mr George Huddlestone) – at p49.

[34] As the government party pointed out (GPFC at para 28), Mr Huddlestone also testified that he only resides at Kybrook Farm/Pine Creek during the wet season. During the dry season he lives on a block at or near Claravale Station (p 47) which is more than 50 km (the grantee party estimated it to be 64 km distant) (Gr3 p 2), south-south west of the proposed tenement. When the wet season finishes in May or early June each year he returns to Claravale Station.

[35] The evidence before the Tribunal is that at least two members of the native title claim group go once or twice a year, and during the wet season, to an area (or areas) in the proposed tenement where they hunt bush animals and collect bush tucker (including green plum and nutwood). There is unclear evidence as to who else goes hunting and food gathering, but it is probable that other members of the claim group do so, although possibly not with the regularity of either Mr Huddlestone or Mr Liddy. Moreover, there is some evidence of younger members of the claim group being taught traditional skills, although the number of persons and the regularity of this activity was not spelt out.

[36] The evidence also discloses that hunting and gathering is not practised by either Mr Huddlestone or Mr Liddy during the dry season, with Mr Huddlestone at least physically moving to another location quite some distance from the proposed tenement during this time of the year. If any other members of the claim group hunt or gather on the proposed tenement during the dry season, then no evidence was led by the native title party. Certainly the Tribunal obtains no particular assistance from the extracts provided from the Report of the Aboriginal Land Commissioner, as the foraging described there relates to areas, it would seem, that are outside the area of the proposed tenement. Indeed the native title party itself said that the evidence of foraging in this Report related to Douglas Hot Springs (which, in part only, it may do so), but even then, Douglas Hot Springs is more than 20 km west of the proposed tenement. No evidence was led that the foraging described in paragraphs 93-96 related to locations in the area of the proposed tenement.

[37] The government party contended that in terms of potential interference with the community or social activities of the native title claim group, it was important to note that the grantee party would only be engaging in exploration activity during the dry season (GPFC at para 32). This was confirmed by Mrs Johnson, on behalf of the grantee party, who informed the Tribunal: “Stephen will only explore in the ‘dry’ so that there can be no interference with George and Lenny have (sic) their camping trip in the ‘wet’ season” (Gr3 at p 3).

[38] With respect to the gathering of mineral resources for the manufacture of tools and implements, Mr Huddlestone said that there was a stone quarry near to the Stuart Highway (Jimbilang). This quarry was a sacred place where rock was collected to make spears, axes and knives. The making of stone implements was allegedly still taking place, and those implements are used for the killing and butchering of kangaroos (Witness Statement at para 8).

[39] The government party contended that, based on the evidence before the Tribunal, it was questionable whether the quarrying of stone for the manufacture of tools still occurs (GPFC at para 34). The government party drew the Tribunal’s attention to the transcript, but a reading of the transcript clearly discloses that Mr Huddlestone testified that this activity still occurs (see pp 28-31). However, the government party also contended that even if it was accepted that this activity still occurs, there was no evidence before the Tribunal that any exploration activity will have a substantial impact on these activities. In this regard, the government party pointed out that the quarry where the stone is sourced, is divided by the Stuart Highway (GPFC at para 36).

[40] The evidence before the Tribunal is that Jimbilang is in fact divided by the Stuart Highway (see Transcript p29). Moreover the grantee party has given certain undertakings about not encroaching onto this and other sites mentioned by Mr Huddlestone both in his Witness Statement and during the On-Country hearings (Gr3 at p 3).

[41] In response, while conceding that Jimbilang is dissected by the Stuart Highway which thus impacts on the activities of the claimants, the native title party then contended: “it is likely that exploration activities in the same area will further impact on those activities.” (ORFC at para 16). Moreover, the native title party argued that the grantee party’s current intention “does not derogate from his rights under any exploration licence granted.” (ORFC at para 17).

The Tribunal is not convinced by the native title party’s response. As French J clearly pointed out in Smith v Western Australia (2001) 108 FCR 442, an evaluation of the likelihood of direct interference is contextual. The extent of the interference cannot be considered in isolation. His Honour agreed that (at 451) “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”. Here the stone quarry is intersected by the main highway between Darwin and Adelaide. The interposition of one of Australia’s major arterial roads between an important site is a matter that cannot be ignored or easily downplayed in evaluating the risk that the proposed future act would pose to the community or social activities of native title holders. There is most probably a very slight risk of further interference; however in the context of the disruption already caused, it could not be said that the granting of the exploration licence would be likely to materially increase the risk of direct interference.

[42] Finally, the native title party contended that the Wagiman People have taken steps to protect sites or areas of particular significance. Reference was made to their prevention of a dam being built at the Jaben Ubawu site (which is outside of the proposed tenement). This was said to be “evidence of a community or social area which is likely to take place inside the licence area if the need arises” (OCHC at para 3).

[43] The evidence presented to the Tribunal of the community or social activities of native title holders was not extensive. There is no doubt that some members of the native title claim group do engage in hunting, gathering, tool making and ceremonial activities on the area of the proposed tenement. Unfortunately there is scant evidence of persons other than Mr Huddlestone and Mr Liddy doing so on a regular basis; although I accept that other traditional owners do so, but how many, how regularly, for what purpose and for what period of time is purely conjectural.

[44] The Tribunal has before it evidence that the activities on the proposed tenement are localised in area and in time. Although there is no evidence of pastoral activities, the proposed tenement is located on pastoral leases and there is likely to be other lawful activities by non-traditional owners which potentially could have an impact on the type of activities described to the Tribunal. Moreover, the government party has highlighted the legislative regime in the Northern Territory which, inter alia, provides that mining leases are granted conditional on the grantee not interfering with the lawful activities or rights of persons on or adjacent to the licence area – s24(j) Mining Act.

[45] There is no evidence of any likelihood of the community or social activities of native title holders in the Kybrook Farm or Pine Creek communities being interfered with, nor is there any evidence of a likelihood that the doing of the future act will cause spiritual distress to the native title holders thereby interfering with their social or community activities.

[46] Consequently, I have formed the view, based on the material before the Tribunal, that there is not a real chance or risk that the social or community activities of native title holders will be directly interfered with.

Section 237(b) – Sites of particular significance

General Legal Principles

[47] The government and native title parties submitted in this inquiry basically the same contentions and material on the legal principles that the Tribunal should adopt in applying section 237(b) to the issues in question as they did in Moses Silver & Ors/Ashton Exploration Pty Ltd/Northern Territory. I therefore adopt for the purposes of this inquiry the legal principles set out at paragraphs 86 to 106 of my determination in that inquiry.

[48] One issue which is not the same in both inquiries however, is the suggestion by the native title party that the recording of sites by the Aboriginal Areas Protection Authority (“AAPA”) in this matter is deficient, with the Register of Sites failing to show the geographical extent or proper location of relevant sites. In this regard the native title party made the following submission (ORTM at para 10):

“a. The extent of the site Japenjin is described differently by Mr George Huddlestone, an applicant in the native title application covering the area of land and waters including the site, and by AAPA records:
(i)In evidence at the site Japenjin (AAPA site number 5270-46) on 15 November 2001, George Huddlestone indicated that the name Jepenjin means the white rock that is at the site. The rocks, and the site, extend towards the highway from the dam at the site, parallel to the highway, and down the creek from the dam “a long way down” to where Wagiman boundary is finished. The rocks follow the spring back [Transcript Site Visit 15 November 2001, pages 6-8]. Later, in cross examination, Mr Huddlestone stated that it would take hours to walk around the site [Transcript Site Visit 15 November 2001, pages 9-10].
(ii)On the site map supplied by AAPA, the site Japejin (5270-46) appears as a point. It is described by AAPA as “[a]n area of relatively massive rounded stone outcrops with associated waterhole (now formed into a dam) approx 500m east of Stuart Hwy & 7 km beyond Emerald Springs”.

It is contended that the evidence of Mr Huddlestone, taken at the site and subjected to cross examination, should be accepted rather than AAPA records:
b. In evidence, Mr George Huddlestone stated that the site Jimbilang is a stone quarry on both sides of the Stuart Highway [Transcript Kybrook Farm 15 November 2001, page 28]. The AAPA Site Register shows a site (reference 5270-10), identified as a stone quarry, as a point. The AAPA map does not show the new Stuart Highway.”
[49] Obviously if the sites register is inaccurate, this has serious ramifications. In assessing the likelihood of interference with areas or sites of particular significance, the accuracy of the sites register is of the utmost importance. If it could be shown that sites were inaccurately recorded, then this deficiency would be of material significance in weighing up the likelihood of a grantee party interfering (albeit unintentionally) with an area or site.

[50] Ultimately the question of the accuracy of the register in this matter is a question of fact, and will be dealt with later in the determination.

The evidence

[51] Initially the native title party submitted (in reliance on the Witness Statement of Mr Huddlestone) that there were four areas or sites of particular significance that the grant of the exploration licence was likely to interfere with, namely: Japenjin, Jundakgan near Union Reef, Jimbilang and Jerri-Jerri (OSC at para 52). The native title party also made these submissions (at paras 54-55):

“54. In addition, given that these areas and sites are identified in the licence area and in the vicinity, it is likely that other areas or sites of significance exist in the licence area and/or in the vicinity that could be interfered with by exploration activities.
55. A site should not be considered simply as a particular physical feature of a landscape – such as a billabong or a hill – occupying relatively little space, but rather as a place the location of which is indicated by reference to the particular physical feature but which is not delimited by that feature. A broad approach to the concept of ‘site’ should be taken. The land around the site is important [Toohey J in Warlpiri and Kartangarurru-Kurintji Land Claim Report [68-[71]].”
[52] During the On-Country hearings, evidence was given about Japenjin, Jaben dreaming sites, Jundakgan and Jimbilang. Of the mentioned sites, only Japenjin and Jimbilang are on the proposed tenement. The Jaben (blanket or frill necked lizard) it was said stopped at two hills and camped at a dam before moving to Frances Creek Mine. The sites are to the north of Pine Creek and on the eastern side of the Stuart Highway. They are a couple of kilometres from the eastern boundary of the proposed tenement and are in the location of Mount McLachlan. Jundakgan is also a couple of kilometres from the eastern boundary of the proposed tenement, being to the east of Jimbilang and to the north of the Jaben Ubawu dreaming sites previously mentioned.

[53] The importance of Jundakgan is unclear. The native title party contended that it was a place for women which men cannot talk about (OCHC at 6c), but Mr Huddlestone’s evidence was to the effect that he wasn’t “allowed to talk about – with the women”. Mr Frith’s response was: “You can’t talk because of the women” (Transcript at p27). The clear impression was that because of the presence of women at Kybrook Farm Mr Huddlestone couldn’t talk about Jundakgan. However, irrespective of the reason, the Tribunal has no evidence before it about the particular significance of this site to native title holders. The native title party did not call any other witnesses, nor did it make any application for evidence to be given in a culturally appropriate manner.

[54] Evidence was given by Mr Huddlestone that Jaben travelled through parts of the proposed tenement (p18) looking where to put red ochre he was carrying on his back (pp 19-20). Mr Huddlestone testified that places where the Jaben walked were “special” (p19), but also of significance were the places where the Jaben actually stopped (OCHC at para 6b). However, none of these places are located on the proposed tenement. The native title party referred the Tribunal to the fact that the Wagiman People stopped a dam being built on a Jaben site because of its particular significance.

[55] In the evidence before the Tribunal, the location of the dreaming track of the Jaben in the area of the proposed tenement, is not clear. The government party contended that “an unbounded, ill-defined ribbon of country is not an area or site. It must be capable of identification and delineation if it is to be of particular traditional significance within paragraph (b)” (GPFC at para 47). Basically, if the native title party wishes to contend that the Jaben dreaming track in the area of the proposed tenement is of particular significance to native title holders, then there must be, as a first step, evidence of the specific location of the dreaming track. In this inquiry the material the Tribunal has to consider is vague and of short compass. The best evidence about sites of particular significance comes from traditional owners. When the native title party presents inadequate evidence about the location of sites, this obviously has a bearing on whether it is possible to determine that areas or sites are of particular significance. In the absence of evidence of location, the Tribunal is unable to determine that the Jaben dreaming tracks in the area of the proposed tenement are or are not of special significance.

[56] The evidence presented by Mr Huddlestone was that the Wagiman People were concerned about damage to country. Reference was made to the spirits of the Wagiman People from Kalay (a location apparently outside of the proposed tenement to the south west (Transcript at p 8) which is jealous about the land, and in the event of non-Wagiman entering on to it (p 25) or of damage being caused to it, would make the old people sick (pp 8, 24). One way to prevent this occurring was for “the white man … listen to the black fella” (p 25). This was later explained as requiring the grantee party to come to talk first to the Wagiman People (p 59), who would tell the grantee party how far away from sacred sites exploration activity could take place (p 38).

[57] The Tribunal accepts this testimony, and notes the importance placed by the Wagiman People on consultation prior to exploration activity occurring. The extent to which Condition 18 of the Second Schedule Conditions deals with this will be discussed hereunder.

[58] The government party contested the assertion that Jimbilang, the stone quarry, was a site of particular significance. It was pointed out that Jimbilang is not a registered site with the AAPA (GPFC at para 49). While noting that Mr Huddlestone testified that it was a sacred place (Transcript at pp 36-37) of some unclear type, nevertheless it was contended that it had no dance, no song, and nothing that elevates it to out of the ordinary significance for native title holders. This conclusion was bolstered, it was argued, by its AAPA status. On this point the government party argued (GPFC at para 53):

“All sites are recorded as 10 initially but if investigations establish that it is not a ‘sacred site’, as defined, it is downgraded. After investigations were made, this site has been downgraded to a status of 5. It would enjoy protection under the heritage legislation as being of archaeological significance.”

[59] It is clear from the Witness Statement of Mr Huddlestone that Jimbilang is of special importance to the Wagiman People. Not only does it have a utilitarian purpose as a quarry for the production of stone hunting implements, but also: “If we use a stone knife from that place to catch and cut up kangaroo, we have to wash that knife and put it back at that place before we take that meat away. If we don’t do that and we give that meat to the old people, they’ll get sick.” – Witness Statement at para 8. This was reinforced during the On-Country hearing, where Mr Huddlestone again made it clear that: “when you pick up something from there, you take it somewhere else, put it in another place you get sick … you got to bring it right back and leave it there” (Transcript at p 28). I formed the view from the evidence of Mr Huddlestone that according to Wagiman belief the misuse of objects created from materials obtained at the site can lead to illness. In this context, it is clear to the Tribunal, from the evidence adduced, that this is a site of significance according to Wagiman tradition.

[60] I have formed the view that despite Jimbilang not being registered with the AAPA, and not having a special dance or song, it is a site of particular significance to native title holders. It does have a name, it is visited, it has been located for the Tribunal and its importance from a practical and spiritual point of view has been explained. The material before the Tribunal indicates that this is a site of special, or more than ordinary significance to native title holders.

[61] There exists a difference of opinion between the government and native title parties on the importance of the site described by Mr Huddlestone as Japenjin. Mr Huddlestone indicated in his Witness Statement that before strangers could enter Wagiman Country they had to be introduced, which involved wetting their heads.

Japenjin was initially described by Mr Huddlestone as a spring where sugarbag grass is collected (Witness Statement para 2). He said that the spring was a sacred place and the head wetting ceremony was conducted there. If the ceremony isn’t performed and water is drunk by strangers, the Wagiman belief is that the strangers will get sick (Witness Statement at paras 2-3).

[62] The Tribunal and the other parties were taken to the Japenjin site after the On-Country hearing at Kybrook Farm, and a head wetting ceremony was conducted. During the On-Country hearing Mr Huddlestone referred to a sacred site he described as the flat white rock, and which Mr Liddy informed the Tribunal had the name Japenjin (Transcript p 6). Mr Huddlestone said that it was a “dreaming place” and that it was a place where bush tucker was collected and hunted (p 7).

[62] The government party suggested that the importance of Japenjin to Mr Huddlestone lay with it being a source of bush plums and potatoes and for hunting (GPFC at para 57). There is no doubt that this is in part correct, as Mr Huddlestone gave lengthy evidence to the Tribunal both at Kybrook Farm and at the site itself on its importance as a source of food.

[63] The government party lodged with the Tribunal an Affidavit from Hugh Bland, an Anthropology Research Officer with the Northern Territory Department of Justice. In that Affidavit Mr Bland deposed that the name of the spring is actually Wungwungla. “Japenjin” it was said is a transcription of the Wagiman term “japbenyin” which means “flat rock”. Therefore Japbenyin is not the name of the site, merely a description of it (Affidavit at paras 9-10).

[64] The government party contended that Mr Huddlestone had described Japenjin as being a sacred flat white rock in his Tribunal testimony, but a spring in his Witness Statement. It also suggested that there may be tension between the testimony of Mr Huddlestone, and the information provided by Mr Liddy to the AAPA, who, allegedly, gave the correct name of the site (Wungwungla) to the AAPA, and did not confuse this with “japbenyin”.

The native title party contended that the vast bulk of the material in Mr Bland’s Affidavit was hearsay, and that the government party had not supplied any direct evidence from the people who appear to be Mr Bland’s informants. It also argued that there is no evidence that the spring visited by the Tribunal is in fact called Wungwungla – (ORFC at paras 26 and 29)

[65] The evidence produced by the government party does not greatly assist the Tribunal. The issue is whether the site is of particular importance. Whether it is called one name or another could in certain circumstances be of great relevance. But in this instance not much turns on whether the sites name is japenjin, japbenyin or Wungwungla. There is nothing before the Tribunal that would suggest that Mr Huddlestone is confused or has inadequate information or has misled the Tribunal. There is a spring – its name may well be Wungwungla. There is adjacent flat rock, which in Wagiman may well be Japenjin or some other English version of the Wagiman language. Certainly there is an issue about the extent of the site (or area), but there is evidence that this is an important site to native title holders. Also, I find that there is no tension between the evidence before this Tribunal from Mr Huddlestone and Mr Liddy.

[66] While Mr Huddlestone’s Witness Statement refers to ‘Japejin’ as a spring, he clearly referred to ‘Japejin’ as the flat white rock during his testimony. Moreover, the flat white rock is immediately adjacent to the spring. There were obviously difficulties in transcribing Mr Huddlestone, and his original Witness Statement had to be replaced. The Tribunal had difficulties understanding part of his testimony due, in part, to the fact that the English language may not be his preferred medium of communication. I formed the view that Mr Huddlestone was a witness of credit, and if there were at times some confusion in the way the evidence was given, it was not due to any inability of Mr Huddlestone to give information to the Tribunal, but, rather, problems of mutual comprehension. The Tribunal agrees with the contention of the native title party that the evidence of Mr Huddlestone concerning this site has not been contradicted and should not, therefore, be discounted (ORFC at para 31).

[67] The evidence before the Tribunal is that the Japenjin site (or, more particularly, that part of it as described by the government party as Wungwungla) is of particular significance to the native title holders. It is not just, as the government party suggests, a site where native title holders collect bush tucker. Rather, it is a site that traditionally was a source of food, and also a “dreaming place” (Transcript p6). To be a site of particular significance, there does not have to be a dance or song for that site or area. Nor does that site or area have to have a particular name. Evidence of these matters, obviously, assist a party contending that it is an area or site of particular significance, but their absence is not conclusive. The government party rightly says that simply because a native title holder says that a site is “sacred” does not automatically mean that the site qualifies as a site of particular significance. Nor, for that matter, is registration by the AAPA in any way conclusive. In each and every case the Tribunal has to weigh up the evidence before it. In this matter, the Tribunal conducted a hearing at this site, and received evidence from Mr Huddlestone while there. I clearly formed the view, from all of the evidence, that this was a site of particular significance, and not simply a site where food was hunted or collected. Its importance to the Wagiman People went beyond purely utilitarian considerations, although, obviously, these were also present.

[68] Accepting that the site (which, for convenience, will be referred to as Japenjin) is of particular significance, the next issue was the extent of the site. The Tribunal has previously set out the native title party’s contention about the alleged inaccuracy in the AAPA records (see [48]). Mr Huddlestone’s on site testimony in regard to its extent, was less than clear. He indicated that it would take hours to walk around the site, but when asked by Mr Lavery whether he could mark it on a map, Mr Frith objected. Consequently, all that the Tribunal received into evidence was some very vague and not particularly helpful testimony from Mr Huddlestone that the Japenjin site went beyond the spring to include potentially a much larger area.

[69] A suggestion that the AAPA records are deficient, based solely on this evidence, is highly problematic. It could well be that the AAPA has recorded the site of Wungwungla, and did so for good reason. The thrust of the evidence about the importance of the site centred on the spiritual significance of the spring. The surrounding area may also be important, but, it would seem, for hunting and gathering considerations. If the native title party wanted to contend that a much larger area was of particular significance then it would need to lead evidence of the extent of that area and the particular significance of that larger area. I am in no way convinced that the AAPA’s records are deficient or inaccurate in this regard. While I accept that the area around the spring Wungwungla is of importance to the Wagiman People, there is insufficient evidence to satisfy the Tribunal that this larger area is of particular significance within the meaning of that term in section 237(b).

[70] The Tribunal, being satisfied that the sites Japenjin (that part comprising the spring) and Jimbilang, are of particular significance to native title holders in accordance with their traditions, also has before it evidence from the grantee party about how he will conduct exploration activities so far as sites of significance are concerned. Initially the grantee party dealt specifically with how he would conduct any exploration activities in the vicinity of the spring at Japenjin as follows (Gr1 at p1):

“1. There is one recorded Aboriginal Sacred Site to the north of the ELA with reference number 5270-46 (Latitude –13° 39’ 36.198” Longtitutde 131° 41’ 11.3388”). An area of relatively massive rounded stone outcrops with associated waterhole (now formed into a dam) approx 500m east of Stuart Highway and 7km beyond Emerald Springs Roadhouse. Stephen Moffatt will not interfere or explore within 1 km of this site.”
The grantee made a further submission to the Tribunal in which reference was made to the Witness Statement of Mr Huddlestone. The grantee party informed the Tribunal (Gr 2 at p1) that the sacred stone quarry (Jimbilang) would be excluded from any exploration program

Finally, Mrs Johnson provided these additional undertakings to the Tribunal on behalf of the grantee party (Gr3 at p3):

“UNDERTAKING BY STEPHEN MOFFATT
· The recorded sacred site areas that are within the boundaries of the Exploration Licence that George Huddlestone has mentioned in his witness statement and the ‘on country’ hearing at Kybrook will be excised from the tenement upon grant. These areas will also (with consultation with George) be determined on site, to ensure no encroachment will occur.
· Prior to exploration taking place, a meeting to explain his exploration programme (as required by Condition 18a of the Second Schedule Conditions) with Stephen and Native Title Claimants to be held at Kybrook. This could be held at the same time as on site visit.”
[71] I have previously determined that the adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention when it is available. The weight to be given to such evidence, however, is entirely dependent on a range of circumstances, each of which will vary from inquiry to inquiry. For the purposes of this inquiry, I note that the grantee party has expressed an intention not to explore within one kilometre of the recorded Japenjin site and to work in consultation with the native title party to ensure that exploration encroachments do not occur with respect to sacred sites. While this may only be an expression of current intention, it is germane to an evaluation of likelihood of interference. It should be added that this evidence, in the context of this inquiry (the grantee party chose not to give evidence under oath) is not of great weight, however it is pertinent in the context of the other evidence before the Tribunal.

[72] Another evidentiary issue concerns testimony given by Mr Huddlestone under cross-examination from Mr Lavery. Condition 18 of the Second Schedule Conditions provides as follows:

“18. (a) The Licensee shall, prior to the commencement of exploration activities other than reconnaissance, convene a meeting on the license area (or the nearest convenient locality) with registered native title claimants or holders to explain the exploration activities. The Licensee may also invite the relevant pastoral lessee(s) or landholders to this meeting.
(b) Notice of the meeting shall be by letter and shall be posted to the registered native title claimants or holders and the representative body not less than 17 days before the meeting and shall nominate the date, time and place of the meeting.
(c) The Licensee must have regard to representations made to it at the meeting regarding any aspect of the exploration activities which raises concerns. These representations may deal with the avoidance access procedures of particular areas of land within the license area.”

[73] The native title party has raised a number of issues with respect to Condition 18 suggesting that the protection offered is not significant. Primarily, it was argued that the grantee party can ignore representations made by native title holders, that there is no obligation to negotiate in good faith, and that 17 days notice of a meeting is inadequate to ensure attendance by those native title holders with an interest in being present (OCR at paras 64-68).

[74] At the Kybrook Farm hearing Mr Lavery asked Mr Huddlestone whether an on-site meeting before the commencement of exploration and an opportunity to raise issues of concern would satisfy the requirement that the explorer come and see the Wagiman People before going onto the area of the proposed tenement. Mr Huddlestone answered in the affirmative (Transcript p 54).

[75] In response the native title party made this contention (OCHC at para 10): “an answer to a complex question in cross examination should be accorded little weight in the context of detailed expressions of opinion regarding an appropriate process for the Grantee party to consult with the native title party and members of the native title claim group regarding exploration on their country, which are set out in the evidence, and in the actions which occurred at the site visit at Japenjin.” The native title party set out the various responses that Mr Huddlestone gave during the On-Country hearings, to the procedures that he believed should be followed by a grantee before engaging in work on Wagiman country. It then drew the Tribunal’s attention to an article by Mr Justice Grey in the Australian Indigenous Law Reporter entitled “Do the Walls Have Ears: Indigenous Title and Courts in Australia”. His Honour deals with the different communication techniques between indigenous and non-indigenous Australians. In particular he deals with the propensity of some Aboriginal People to answer ‘yes’ to questions strongly put, and how it may be shameful to give a direct negative answer to a positive request. Further, the native title party also relied on R v Anunga (1976) 11 ALR 412. The Court in that case outlined rules for the interrogation of Aboriginal suspects, and in particular, said that leading questions should not be employed and even after a confession is obtained, the Police should continue to seek other evidence.

[76] The caution suggested by the native title party in dealing with evidence obtained from indigenous persons is well taken. The Tribunal has to be ever mindful of cultural considerations in conducting hearings and then in evaluating the evidence given by indigenous persons at such hearings. In the context of the evidence in contention, I was particularly careful to ensure that Mr Huddlestone did not answer a question which he did not understand or which he may have been confused in any way about. After a number of exchanges between counsel and the Tribunal, the following exchange occurred (at p54):

“Mr Frith: Member, I’m not sure that Mr Huddlestone’s comprehended the statement that has been made so far.
Mr Sosso:Did you understand what that fellow was saying Mr Huddlestone?.
George Huddlestone: Yes
Mr Sosso:Mr Huddlestone is signifying that he does. Yes, Mr Lavery?”

[77] There was no doubt in my mind that Mr Huddlestone knew the purport of the questions that were being put by Mr Lavery. I only allowed the questioning to continue after I was satisfied that Mr Huddlestone was not being placed at a disadvantage and the answers he gave could be relied upon. The suggestion by the native title party that the Tribunal should give little weight to Mr Huddlestone’s affirmative answer because of the suggestion that he may have given a culturally appropriate but factually incorrect response, does not accord with the Tribunal’s observation of how the witness answered this and other questions. Mr Huddlestone may have had difficulties at times in expressing himself in English, but I formed the view that he answered questions put to him honestly and to the best of his ability. When a question was asked which he had difficulty understanding or which raised culturally sensitive matters, he was quick to inform counsel and the Tribunal of this situation.

[78] After the exchange set out [76] Mr Lavery asked Mr Huddlestone the following question (Transcript at p54):

“Mr Lavery:Mr Huddlestone, if that – if you had that on-site meeting, before exploration starts and you had the opportunity to raise your issues of concern, be it the sites, be it – you know – that you go out to McDonald Airstrip way – you know – in the wet time for a couple of weeks. Would that satisfy that requirement that the mine company come and see you before they go there?

George Huddlestone: Yes.”

[79] The Tribunal was satisfied that the meeting required by Condition 18, would meet the concerns expressed by Mr Huddlestone that there be an on site meeting before explorers went onto Wagiman country. While this meeting does not address all of the various (and legitimate) concerns raised by the native title party, it is a factor that the Tribunal can take into account in weighing up the likelihood of interference with areas or sites of particular significance.

Conclusion

[80] The Tribunal is satisfied that there are two sites (Jimbilang and the spring at Japenjin) located in the area of the proposed tenement which are of particular significance to the Wagiman People in accordance with their traditions.

[81] Evidence submitted by the government party discloses that there is in place a comprehensive regime under the Mining Act aimed at minimising the risk of interference to areas or sites of significance. Despite suggestions by the native title party, there is no satisfactory evidence that the sites register maintained by the AAPA is in any way seriously deficient, or that the legislation in place governing sacred sites, does not provide satisfactory protection to sacred sites.

[82] The grantee party has given undertakings that have been set out above, and these (while, in no way of great weight of themselves) can be appropriately taken into account in an overall assessment of the likelihood of the risk of interference.

[83] The evidence given by Mr Huddlestone both at Kybrook Farm and Japenjin is accepted by the Tribunal. Likewise the Tribunal is not convinced by contentions of the native title party that his responses to questions put by the government party concerning condition 18 of the Second Schedule Conditions should be given little weight. The Tribunal finds that the Mr Huddlestone (as a registered native title claimant and as a senior spokesman for the Wagiman People), regarded as acceptable the requirement that there be a meeting either on the proposed tenement or a convenient location nearby, to explain exploration activities and have regard to representations about (inter alia) avoidance procedures.

[84] It also should be kept in mind that the proposed tenement is wholly located within two pastoral leases. In weighing up the risk that exploration activities may pose to the two sites of particular significance, regard also must be placed on the fact that there are ongoing lawful activities on the area of the proposed tenement by the lessees, their staff and agents. As the Tribunal has previously pointed out, risk evaluation is inherently contextual. In assessing risk to areas or sites of significance, the Tribunal needs to have regard to lawful activities (actual or potential) on the area of the proposed tenement, when weighing up the implications posed by exploration activities.

[85] Applying the presumption of regularity, and having regard to the evidence before the Tribunal, I find that while there are sites of particular significance on the proposed tenement, there is no real likelihood that the proposed future act will interfere with them.

Section 237(c) – major disturbance to land or waters

General Legal Principles and General Submissions of Government and Native Title Parties

[86] Both the government and native title parties lodged with the Tribunal, essentially the same submissions on the proper interpretation of section 237(c) as they did in Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13. For the purpose of this inquiry, I adopt my findings at paragraphs 135 – 140 of that inquiry.

[87] The government party’s general submissions on section 237(c) were also identical to those made in Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory. I set those submissions out at paragraphs 141 –142 of my determination in that inquiry, and I adopt those paragraphs for the purposes of this inquiry.

[88] The native title party’s general submissions on section 237(c) were likewise almost identical in Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory. I adopt paragraphs 144 – 150 of my determination in that inquiry for the purposes of this inquiry.

[89] In addition, however, the native title party enumerated Mr Huddlestone’s concerns (as expressed in his Witness Statement) about the potential of major disturbance as follows (OSC at para 71a): damage to trees, land and animals which will make the Wagiman People get sick; concern that the explorer may do something wrong unless the Wagiman People don’t keep an eye on them; the explorer taking trees; and oil and dirt being put into creeks, resulting in the killing of fish, turtles and all of the wildlife.

[90] The native title party also submitted that the Tribunal should take into account the cumulative effect of disturbance to land or waters from all of the mining in the vicinity of the proposed tenement. In this regard the native title party referred the Tribunal (OSC at para 79) to exploration and mining at France Creek.

Grantee Party Submissions

[91] The submissions of the grantee party were very short, and so far as is relevant to section 237(c) were as follows (Gr1 at pp1-2):

“3. Native Title Claimants will be notified when exploration activities will be taking place. Any exploration activities will be rehabilitated immediately on completion where necessary. There will be no long term impact on the land, with all requirements under the Mining Act and Mine Management Act and Other Relevant Acts relating to exploration being met.
4. Stephen has been involved in the Extractive Industry with a good track record relating to his environmental reports with NTDME. He has an affinity with the flora and fauna in the area. This is Stephen’s first Exploration Licence Application.”

[92] The grantee party also informed the Tribunal (Gr 2 at p1) that no vehicular oil or dirt would be put into creeks.

Conclusion

[93] In the Application for the Grant of an Exploration Licence, which was lodged with the Tribunal by the government party, the grantee party described the proposed work program for the first year as follows:

“The ELA is predominantly the Igneous Rock Group in the Cullen Granite. The north east of the ELA is the Sedimentary Rock Group within the Finness River Group and Burrell Creek Formation. The south eastern corner of the ELA is also the Sedimentary Rock Group within the Mullaman Beds. It is prospective for all minerals.
The first year will comprise of in-house geological interpretation of previous work carried out in the ELA area. Site specific interpretation will be carried out initially without substantial disturbance.
The following year, contingent upon positive results from the first phase of exploration, possible drill testing of targets will occur.”

[94] The government party has supplied to the Tribunal, detailed material (including maps), which outline previous mining and exploration activity in the area of the proposed tenement, at least in recent times. The material indicates that the proposed tenement has been the subject of extensive mining activity.
[95] It would appear that the proposed tenement has been the subject of seven previous Extractive Mineral Permits (Northern) – EMPN 484, 485, 587, 609, 976, 1035 and 1133.

The area of the proposed tenement has also had 44 Mineral Claims (Northern) granted – MCN 179, 191, 507, 549, 734, 828, 829, 990, 991, 992, 993, 994, 995, 1006, 2472, 2473, 2474, 2475, 2476, 2477, 2478, 2479, 2480, 2481, 2482, 2483, 2484, 2487, 2490, 2493, 3082, 3083, 3084, 3085, 3086, 3087, 3342, 3343, 3344, 3345, 3346, 3347, 3348, 3349, 3350, 3351 and 3352.

The government party’s information suggests that 6 Mineral Leases (Northern) have also been granted in this area: MLN 124, 423, 822, 1863, 1864 and 1906.

Finally the information also discloses extensive exploration activity, with more than 20 Exploration Licences having been granted in the area of the proposed tenement: EL 615, 2118, 2436, 4764, 4816, 5080, 5244, 5328, 5341, 5424, 5537, 6321, 6544, 6601, 6676, 6706, 7116, 7387, 7639, 7673, 7707, 7813, 7814, 8497, 9366, 9467 and 10341.

Currently within the boundaries of the proposed tenement there are three current mining tenements: EMPN 1124 and 1133 and EMP 22932. The two Extractive Mineral Permits (Northern) are situated in the north east of the proposed tenement approximately 4 km south of the spring at Japenjin. The Extractive Mineral Permit is located in the central portion of the proposed tenement, approximately 2 km south of the Douglas River.

[96] A map prepared by the Northern Territory Department of Business, Industry and Resource Development discloses that grantees of Exploration Licences 2436, 5080, 5341, 5424, 7707, 7673 and 8497 actually carried out exploration activities in the area of the proposed tenement. It would appear that there has been extensive exploration activity in the southern portion of the proposed tenement, and, likewise, intensive exploration in the northern portion to the east of the Stuart Highway. The only portion of the proposed tenement left untouched by recent exploration activities would appear to be the middle portion to the west of the Stuart Highway.

[97] The summary of the previous company reports of the type of exploration activity conducted, would seem to indicate that exploration activity occurred in the period 1984 to 1993. If there has been subsequent activity, it is not disclosed in the information provided. The type of activity can be classified into three types: prospecting, rock chip sampling and stream sediment sampling. Prospecting typically involved excavation of backhoe pits to test for alluvial material, panning of stream sediments to test for alluvial minerals and laboratory analysis (EL 2436 and 5341). Rock chip sampling involved the collection of approximately 1-2 kilograms of rock chips from outcrops and laboratory analysis for mineral content (EL 5080, 5424 and 7707). Stream sediment sampling involved the collection of a sample of gravel/sediment (ranging from 10 kg to 40 kg), on site screening to collect a size fraction and then laboratory analysis for mineral content (EL 7673, 7813 and 7814).

[98] While there is ample evidence before the Tribunal of extensive exploration activities over the licence area since 1981, no material has been adduced that this activity has in any way had a major impact on the land or waters. The wholesale damming of the spring at Japenjin with associated damage to the surrounding flora, was, it seems, an outcome of the construction of the Stuart Highway. The damage was not the result of any activity associated with mining activities.

[99] Mr Huddlestone did express concern during his testimony at Kybrook Farm that exploration activity involving bulldozers would “kill all the bush tucker”, and that this would upset the spirits making the old people sick. There was no doubt, in my mind, that Mr Huddlestone was sincere when he expressed those reservations. However, the material before the Tribunal demonstrates that there is in place under the Mining Act, a comprehensive regime for the regulation of exploration activities designed to minimise disturbance to land or waters. In particular, section 24(j) of the Mining Act requires an explorer to conduct exploration programs and other activities in such a way as not to interfere with, inter alia, the lawful activities or rights of any person, or to land adjacent to the licence area. This provision would apply to minimise the risk of interference to the hunting and gathering activities of native title holders on the area of the proposed tenement, and to community or social activities carried on at either Kybrook Farm or Pine Creek Community.

[100] Reference also should be made to section 24(e) of the Mining Act which prohibits a grantee from carrying out any program involving major disturbance without the prior written approval of the Secretary of the Department of Mines and Energy. In this regard the government party lodged with the Tribunal an Affidavit of Timothy Milne Gosling who is the Assistant Director, Mining Engineering and Technical Support, Mines Division, Department of Business, Industry and Resource Development. In his Affidavit, Mr Gosling sets out the substantial disturbance regime in force in the Northern Territory. The Tribunal is satisfied that there is in place a range of protections to ensure that exploration activities involving disturbance are closely regulated and sites are properly rehabilitated.

[101] The government party also drew the Tribunal’s attention to section 166(a) of the Mining Act which ensures that all exploration licences in the Northern Territory are granted on the condition that the grantee causes as little disturbance as possible to the environment, and complies with written directions to minimise disturbances or make good any damage already caused, including rehabilitation of the disturbed surface area of the land.

[102] Section 24A of the Mining Act also allows for the imposition on explorers of further conditions as determined by the Minister. These have been referred to as the Second Schedule Conditions. Importantly subsection (2) specifically provides that these conditions “may include a condition about ways of minimising the impact of the grant of the exploration licence on registered native title rights and interests in relation to the land concerned, including about any access to the land or the way in which any thing authorised by the grant may be done.”

[103] The Second Schedule Conditions, inter alia, prohibit an explorer from killing or taking wildlife, starting fires, bringing firearms or traps on site, constructing new tracks (unless unavoidable), keeping to a minimum the clearing or disturbance of vegetation, taking all reasonable precautions to prevent contamination of underground or surface waters and choosing drillhole and excavation sites to minimise environmental impacts, and sealing drillholes after completion of activities. Moreover, section 166A provides that if an act is done in relation to land in respect of which native title rights and interests exist, or may exist subject to conditions relating to those rights and interests being complied with by the parties, then those conditions have effect and may be enforced as if they were terms of a contract between the parties.

[104] As previously pointed out, Condition 18 of the Second Schedule Conditions provides for a meeting between the grantee and registered native title claimants so that exploration activities can be explained and representations received. At such a meeting the sincerely held concerns of Mr Huddlestone and other members of the Wagiman People can be articulated.

[105] There is no evidence before the Tribunal that there is any likelihood that the grantee will be engaging in activities that will involve major disturbance to land or waters, nor is their evidence that the future act will involve the creation of rights, the exercise of which, would be likely to result in major disturbance to land or waters.

[106] The evidence, in fact, discloses that the area of the proposed tenement has been subject to extensive mining activities for some time. No material was adduced that any such mining activity over the past two decades has resulted in major disturbance to land or waters. In fact the only such disturbance mentioned resulted from road building activities that had no connection with mining. It is reasonable to infer from mining and exploration activities in the immediate past, that the current legislative regime in the Northern Territory has resulted (together with other factors) in a situation where exploration resulting in major disturbance is closely regulated, and that the legitimate concerns of native title holders form an important element in the regulatory fabric.

[107] The Stuart Highway, the main arterial road linking Darwin to Adelaide, dissects the area of the proposed tenement. The tenement area forms part of two pastoral leases, and there is, it would appear, ongoing pastoral activities. Other pastoral leases surround the tenement, and it would appear that the surrounding areas have also been the subject of extensive mining activity. In addition there is no evidence that the area of the proposed tenement is comprised of land or waters that are environmentally or geologically sensitive, such that there is a greater than normal risk that exploration activity would be likely to result in major disturbance.

[108] The area of the proposed tenement is quite large (82 blocks). There are no Aboriginal communities located on the proposed tenement, with Kybrook Farm being some 5 kilometres from the proposed licence area.

[109] The grantee’s proposed course of exploration activity as set out above, does not, on its face, involve action that would be likely to result in major disturbance to land or waters.

[110] Overall then, the evidence before the Tribunal does not, from a contextual risk evaluation perspective, lead to a conclusion that there is a likelihood of major disturbance to land or waters as comprehended by section 237(c).

Determination

The determination of the Tribunal is that the grant of Exploration Licence 22457 to Stephen Darryl Moffatt is an act which attracts the expedited procedure under the Native Title Act 1993.

John Sosso
Member