Harry Lansen for the Alawa People/Biddlecombe Pty Ltd/Northern Territory
[2002] NNTTA 156
•2 August 2002
NATIONAL NATIVE TITLE TRIBUNAL
Harry Lansen for the Alawa People/Biddlecombe Pty Ltd/Northern Territory, 2002 NNTTA 156 (2 August 2002)
APPLICATION NO: DO01/113
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Harry Lansen for the Alawa People (Native Title Party)
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Biddlecombe Pty Ltd (Grantee Party)
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Northern Territory of Australia (Government Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: J. E. Stuckey-Clarke, Member
Place: Sydney
Date: 2 August 2002
Hearing dates: 5 February,2002, 19 March 2002, final directions made 16 May 2002.
Government Party: Mr Daniel Lavery, Solicitor, for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Ross McColl
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – 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 – grantee party’s intentions – presumption of regularity – likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation:
Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 109, 146, 151, 237
Cases:
C.N.Hardie/Western Australia/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO 00/92, Member Stuckey-Clarke 25 June 2001
William Risk and Kathleen Mary-Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso 15 April 2002
Smith v Western Australia [2001] FCA 19
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Cheinmora v Striker (1996) 142 ALR 21
Western Australia/Winnie McHenry WO 98/125, Deputy President Franklyn, 28 July 1999
Ward v Western Australia (1996) 69 FCR 208
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002
REASONS FOR DETERMINATION
Background
On 27 June 2001 Northern Territory (“the government party”) gave notice pursuant to section 29 of the Native Title Act (“the Act”) that it proposed to grant Exploration Licence 10121 (“the proposed tenement”) to Biddlecombe Pty Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 5 blocks(17 sq km) (a block is approximately 2.9 square kilometres) within the Tawallah Range locality. The area of the proposed tenement is comprised of the following leasehold:
(a)Perpetual Pastoral Lease 1069(known as Billengarah).
[3] On 20 December 2000 a native title determination application was filed in the Federal Court (DC00/29) (D6030/00). The name of the application is “Billengarah”and the applicant is Harry Lansen on behalf of the Alawa People. The application was registered on 19 January 2001. The “Billengarah” application, which covers a geographical area of 2472.49 sq. kms, encompasses the whole of 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 (29 October 2001) after the section 29(4) notification day (27 June 2001). Harry Lansen is the named objector. The Tribunal has previously determined that Form 4 objections in Group 4 have been properly accepted and that, while a Form 4 cannot be amended in a substantive manner after the statutory 4 month time limit has expired, there is no amendment of a Form 4 by the submission to the Tribunal of such matters as are contained in the contentions of the native title party in the matters before me: see the Decision of Member Sosso on whether the Tribunal has Jurisdiction to conduct an inquiry in Applications No. DO 01/3, DO 01/13, DO 01/19-23, unreported, 21 December 2001. I agree with and follow Member Sosso’s decision in those matters. I conclude that the Tribunal has jurisdiction to determine this inquiry.
[5] On 5 November 2001 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.
[6] On 8 November 200l Deputy President Sumner made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. I issued further directions at various listing hearings, the last of which was convened on 9 April 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determining the matter on the papers. I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section l5l of the Act.
The Evidence
Objector’s Evidence
[7] The native title party relies upon an affidavit of Mr Harry Lansen of Jandanku Aboriginal Land Trust (Bauhinia Downs) in the Northern Territory of Australia affirmed 20 March 2002 which is set out in full below:
I, Harry Lansen of Jandanku Aboriginal Land Trust(Bauhnia Downs) in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
I know where the area of ELA 10121 is. I have seen a map of the area of the ELA. Now produced and shown to me marked “HL-10121” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
I am a member of the native title claim group in the Billengarrah native title determination application(DC00/29).
There is an old copper mine located on this ELA. Jackson Lansen worked at that mine before he had whiskers. That must be more than fifty years ago. He told me that.
The road from Borroloola to Limmen Bight runs through the ELA, which is just east of the Jandanku Aboriginal Land Trust(Bauhinia Downs).
Gordon Lansen and his brother Jackson Lansen, and their families are Mingirringgi for country that includes the ELA area.The area of ELA 10121 belongs to them.
There are no sacred sites near that mine.But lower down on Eastern Creek there’s a spring called Duluru, a Mararabana (Mermaid) Dreaming, in Nathan River Pastoral Lease, north west of ELA 10121.
The Government should listen to Aboriginal people. They have come and talk to Mingirringgi and Junggayi, if there are sacred sites.
I live with my mob at Bauhinia Downs. We are always using that country. In the dry season, we go hunting all through that country, including the ELA, every week. We go fishing, getting sugarbag, getting kangaroo, bush turkey, turtle, short-necked and long-necked turtle. We get bream and catfish. I go every week, because it’s close up to my boundary at Bauhinia Downs, where I live, we use that main track going right through the ELA.
We travel, hunting and fishing, through the ELA area from Bauhinia Downs, north through Nathan River pastoral lease, as far as Limmen Bight River. We go up to Lorella Spring, and down to Sly Creek, to Eastern Creek, and right up to Nathan River Station.
[8] The native title party submitted the following further evidentiary material to the Tribunal:
(a)A document entitled “Rights conferred under exploration licence”.
(b)A document entitled “Analysis of Legislation dealing with significant areas and sites”.
(c)Affidavit of Mark Frederick Foy and Annexure MFFI
(d)The Transcript of the evidence of Mark Frederick Foy given on 4 December 2001 (the Foy transcript). This transcript is relied on as a statement of expert opinion.
(e)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001. This affidavit is relied upon as a statement of expert opinion.
(f)Transcript of evidence of Jeffrey Stead.
(g)AAPA site information and maps.
The Government Party’s Evidence
[9] The government party submitted its particulars as well as the following evidentiary material to the Tribunal:
(a)A topographical map marked with the area of the proposed tenement , location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”), tenure details and any known Aboriginal communities;
(b)A schedule of details of the sacred sites referred to;
(c)Mining Tenement documents, including the licence application and details of any current mining tenement and prior mining tenements granted over the same area;
(d)A Revised Prior Tenement Schedule, prior exploration licence map, previous exploration activity map and schedule and existing title holder map and schedule.
(e)The Government advised that it also intends to rely on its Standard Exhibits Documentation as particularised in its Contentions.
The evidence in the materials in paragraphs d and e above indicated that there have been exploration activities conducted on the area of the proposed tenement from 1972-2001, that the activities covered virtually all of the proposed tenement and that it included diamond drilling, stream and loam sediment sampling, and reverse circulation drilling, In addition at some time in the past there was an operative copper mine within the proposed tenement area: see government party’s contentions in reply at [82].
The Grantee Party’s Evidence
[10] The grantee lodged contentions with the Tribunal which stated pertinently as follows:
Interference with Social Activities
Biddlecombe utilises the services of a Titles Consultant based in Darwin, to maintain and carry out all matters to do with the application. This particular consultant has been involved with exploration and mining matters in the Northern Territory for 21 years and he has a proven record of advising all affected parties of when exploration activities are to take place. An affidavit from that Titles Consultant, Kenneth Ross McColl, is attached as part of the Grantee Party’s contentions.
In accordance with the conditions proposed by the NT Department of Business, Industries and Resource Development..to attach to the grant of all new exploration titles in the Northern Territory(refer Government Party contentions), Biddlecombe will ensure that written notification is given to Native Title holders and/or their representatives before any exploration activity is commenced on ELA 10121.
Biddlecombe contends that such measures by it will ensure that the grant of ELA 10121 and subsequent exploration activities are not likely to interfere directly with any activities of the native title holders in the area of ELA 10121.
Interference with Sites of Significance
Biddlecombe has a policy of undertaking a Sacred Sites Clearance Survey by the Northern Territory Aboriginal Areas Protection Authority(AAPA) before undertaking any exploration activity on ELA 10121 which activates the “substantial disturbance “ provisions of the Northern Territory Mining Act(Section 24(e)). Biddlecombe understands that AAPA liaises closely with the local Land Council, and utilises the services of local Aboriginal elders, to effect such surveys.
Biddlecombe has a policy to inspect the Register of Sacred Sites at AAPA before undertaking any non-intrusive exploration activity which does not activate the substantial disturbance provisions of the Northern Territory Mining Act to ensure that maximum protection is afforded to all registered and recorded sacred sites.
According to the map which accompanies the Statement of Contentions by the Government Party, there are no recorded Sacred Sites located within the area of ELA 10121 or in its immediate vicinity. Nevertheless, the Grantee Party will carry out all appropriate checks, prior to commencing any work on this area, to ensure that there are no sites which may be affected.
Biddlecombe contends that the procedures it will put in place will ensure that the grant of ELA 10121 and subsequent exploration in the area of ELA 10121 are not likely to interfere with areas or sites of particular significance to native title holders…..
These contentions were supported by an affidavit in which Mr McColl set out his expertise and experience.
The Parties’ Contentions
[11] The parties filed extensive contentions in the proceedings. I have considered the contentions in detail and will refer to them with particularity where appropriate.
General Legal Principles
[12] Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…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 holders… of the native title in relation to the 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.”
[13] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.
Reasoning
Section 237(a) – Interference with carrying on of community or social activities
[14] I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.
[15] The native title party in its Contentions at [39]-[42] contends that:
[39]There are several communities in or in the vicinity of the licence area which are occupied by members of the native title claim group. They include;
a. Bauhinia Downs, Ryan’s Bend, Ijarri, Cow Lagoon, W Lagoon, and
Borroloola.
[40] There are several roads inside, and in the vicinity of the licence area that are frequently used by the members of the claim group to access the communities and areas, including the licence area, for the purpose of carrying on community and social activities.
a.The Nathan River Road passes north south through the licence area.
b.A track leaves Nathan River Road about l kilometre south of the northern boundary of the licence area, and runs through the northern part of the licence area.
c.Other small tracks are located in the vicinity of Coppermine Creek, which also passes north east out of the licence area.
[41] There are several water bodies and other areas of environmental significance in and around the licence area. These are used for fishing, sources of drinking water and may sustain and be part of areas and sites of significance. Two creek systems traverse the licence area, in each of the northern and southern parts of the area. Their watercourses comprise a substantial proportion of this small licence area….
[42] The community or social activities of the Native Title Claim group include:
(a) Hunting, fishing, and gathering of bush tucker[affidavit of Harry Lansen [8],[9]]
(b) An inference can be drawn, from the fact that hunting and fishing takes place on the licence area, that in the course of that activity, members of the community teach children about traditional laws and customs, the techniques of conducting hunting, fishing,gathering and other activities, and the significance of areas or sites;
These activities occur over some or all of the licence area, and in its vicinity. These activities occur regularly and are carried on by more than isolated numbers of members of the native title claim group:
c. Harry Lansen and his mob, who live at Bauhinia Downs, go hunting through the licence area every week in the dry season[affidavit of Harry Lansen[8].
[16] The government party in its contentions at [8] and in reply at [52]-[56] said:
[8] The Government party contends that the grant of the proposed licence is not likely to interfere directly with the carrying on of community or social activities of the persons who are holders of native title in relation to the land for the following reasons:
(a) no Aboriginal community is located on the proposed licence area; and
(b) several Aboriginal communities are nominated in the Form 4-Ryan’s Bend(58 kilometres south-east); Ijarri(49 kilometres south-east);Cow Lagoon(59 Kilometres south-east);W lagoon (43 kilometres south-east); and Borroloola(80 kilometres south-east) of the licence area.
[52] The Objector’s contentions refer to six settlements as “occupied” by members of the native title claim group. However, evidence is led regarding the occupation of only one, Bauhinia, of these settlements by members of the native title claim group. The closest of the remaining settlements (sic)forty-three kilometres distant.
[53] The affidavit of Harry Lansen …makes reference only to his “mob” from Bauhinia Downs undertaking community or social activities on the proposed licence area(paragraphs 8 and 9). Thus, there is only evidence before the Tribunal of one of the communities listed as being occupied by members of the native title claim group.
[54]Indeed it would require a “double inference” to conclude, without evidence, that the presence of a community in the (very) general vicinity of the proposed licence area indicated members of the native title claim group occupied those communities AND that hose members of the native title claim group carried out community or social activities within the proposed licence area. With the exceptions noted, no such evidence is provided.
[55] The proposed licence area has been subject to significant exploration activity between 1968 to 1997. Mr Lansen notes the operation of a copper mine. He does not depose to any; interference to his hunting or fishing activities arising from that activity.
[56] There is an issue of relevant and also of particularity with Paragraph 40. If the Objector is asking the Tribunal to conclude that the potential use by the grantee of Nathan River Road is an interference directly with the carrying on of claimed activities, it is an insubstantial impact…Any number of other uses, Aboriginal and non-Aboriginal, can utilise Nathan River Road or other roads and unsealed tracks and any of them could potentially cut up unsealed surfaces. Such damage is unlikely to be caused by exploration activities as it would usually occur in the Wet season after the exploration field season in the Northern Territory has concluded: see Foy Transcript of 4 December 2001 at page 39.
[17] I find the government party’s contentions persuasive in relation to there being no aboriginal community on the tenement at [8] and in relation to the matters dealt with in [53] & [55-6].
[18] Mr Lansen does not live on the tenement but he does give direct evidence of contemporary community or social activities on the proposed tenement in [8]-[9]. I find that he gives sufficiently particularised evidence of foraging and hunting, fishing and gathering of bush tucker by relatives of his and people whom I accept are likely to be members of the native title claim group.
[19] However, I also take into account the government party’s evidence that this small area has long been subject to exploration and mining activity and Mr Lansen’s evidence in relation to a copper mine being there over 50 years ago at [3]. I note also that Mr Lansen does not give any evidence about interference with hunting etc. in the past as a consequence of these activities.I also take into account the grantee party’s evidence as to the giving of written notice etc. in respect of its proposed activities to the native title holders and as to its intention to comply with all relevant statutory requirements.
[20] The statutory regime operating in the Northern Territory is a comprehensive one aimed at preventing interference with community or social activities of native title holders by explorers. Exploration licences are granted in the Northern Territory subject to statutory conditions made pursuant to section 24 A Mining Act. Pertinently the first two conditions are:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular, by ameliorating:
(a)any interference directly with the carrying on of community or social activities of registered native title claimants or holders;
(b)any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out its activities in such a way as to minimise the disturbance or the environment of the licence area, in particular by minimising:
(a) interference with the use of the land by other persons;
(b) the disturbance of flora, fauna or other natural resources;
(c) pollution, including soil, water and atmospheric pollution;
(d) the incidence and effects of soil erosion.”
[21] There are a further 17 conditions aimed at prohibiting a range of activities which might directly interfere with community or social activities of native title holders. In particular, Cl. 18 requires the licensee to convene a meeting with registered native title holders prior to the commencement of exploration activities and have regard to any aspect of the proposed exploration activities which raise concerns. As Member Sosso said in Kathleen Parry, Albert Myoung, Paddy Huddleston and Marjorie Foster/Northern Territory/Troy Resources NL DO 01/85, unreported, 12 June 2002, at [43] referring to the s.24A Mining Act conditions:
“These are not the only relevant provisions in force in the Northern Territory, but they highlight the fact that there is in place a regime aimed at preventing ( as far as practicable) disturbance to community or social activities by explorers. Obviously the existence of this regime does not render a section 237(a) inquiry unnecessary, and it is always possible on the basis of the evidence presented to an inquiry that the Tribunal may find that there is a likelihood of interference pursuant to s.237(a). Nevertheless, it is clear that the combination of the various statutory provisions and conditions in the Northern Territory goes quite some way in ensuring that exploration activity will, in many instances, not result or not be likely to result, in interference to community or social activities.”
[22] In conclusion, therefore, even where community and social activities are evidenced as being presently conducted by the native title claim group on the proposed tenement as I find to be the case in this matter, it is necessary for the native title party to show that the statutory regime will not prove a sufficient protection from direct interference with those activities. In assessing the evidence before me, I take into account the nature and extent of contemporary community and social activities on the tenement, the fact that no aboriginal community is situated on the tenement, the relatively small size of the tenement, the long history of mining and exploration activities on the tenement, the lack of evidence of interference with community or social activities in the past, the grantee’s express evidence of its intentions to take all necessary steps to prevent such interference and the comprehensive protections provided by the statutory regime in place in the Northern Territory. Weighing up all those matters, I conclude that the community or social activities evidenced before me are not likely to be directly interfered with by the grant of the proposed tenement, taking the common sense approach to the evidence and applying the test explained by French J. in Smith v. Western Australia[2001]FCA 19 and therefore hold that no direct interference within the meaning of s.237(a) of the Act is likely.
Section 237(b) – Sites of particular significance.
[23] In Moses Silver at [86]-[107], Member Sosso analysed legal issues raised by the contentions of the government and native title parties in respect of the general legal principles applicable to and the proper construction of section 237(b) which were also raised in similar contentions in this matter. I agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.
[24] So far as section 237(b) is concerned, the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the areas or sites must be “capable of identification” and the nature of their significance to the holders of native title must be explained to the Tribunal: see Western Australia/Winnie McHenry WO 98/125, 28 July 1999. It will usually be the case that evidence relating to particular significance will be peculiarly within the knowledge of the native title party and that, absent documentary evidence, such as the Sacred Sites records, evidence of location and identification will also be peculiarly within the knowledge of the native title party so that failure to produce such evidence may lead to the drawing of an unfavourable inference on the issue taking the common sense approach to evidence: see Carr J. in Ward v. Western Australia(1996) 69 FCR 208 at [217].
[25] The native title party relies upon Mr Lansen’s affidavit and the map annexed thereto.
Mr Lansen fails to identify any site of particular significance that is actually located on the proposed tenement nor is any identified by the AAPA sites information as being located on the tenement.
[26] The native title party also relies upon the affidavit of Jeffrey Stead who deposes to his belief that it is unlikely that the AAPA Register for any particular area will be accurate and complete for all sites of areas of significance within it. Mr Stead also gave oral evidence at the hearing on 3 December 2001. I refer to my analysis of Mr Stead’s evidence in Roy Dixon/Plenty River Corp. Ltd/Northern Territory, DO 01/51 at [24-25] and note that Mr Stead advised the Tribunal that he was not aware of any inaccuracies in the geographical description of any sites referred to in the AAPA sites information and map provided to the Tribunal and relied upon by the native title party in these proceedings.
[27] In its Contentions in Reply at [67], the government party contends
(a)[67] The affidavit of Harry Lansen and the contentions of the Objector make reference to only one location, Dulurru. This location is registered under the Sacred Sites Act. It is over 5 kilometres distant from the proposed licence area. In fact Mr Lansen deposes (at paragraph 7) “there are no sacred sites near the old mine”.
[28] In this matter, the Tribunal has been presented with contentions by the native title party that there are sites of particular significance within the meaning of s.237(b) but no evidence of any such site located on the proposed tenement.
[29] In those circumstances, there can be no likelihood of direct interference. Further, the Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective; indeed the evidence is to the contrary.
[32] In conclusion therefore, in light of the evidence before me, the Northern Territory statutory regime for the protection of sacred sites, taking into account the grantee’s express intentions to comply with the regulatory regime and make all appropriate checks, I find that it is not likely that the any areas or sites of particular significance which exist on the proposed tenement will be interfered with by the proposed grant.
Section 237(c) - Major Disturbance to land or waters
[33] As to the general legal principles applicable to the proper construction of this section, I concur in and adopt the general legal principles as set out by Member Sosso in Moses Silver at [135-140] and note the effect of the Mining Amendment Act No.44 of 2001 in repealing s.166(1)(a) of the Mining Act and inserting s.161(1A):see Deputy President Franklyn’s discussion of this legislation in Angus Riley and May Foster on behalf of the Wirntiku, Milwayijarra and Ngapa Groups, DO 01/70 and 71,unreported,17 April 2002 at [19].
[34] The government party contended at [12]-[20] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party said at [12]-[17]:
12. In relation to s.237(c), the Government party adopts the legal principles as stated by the Tribunal in the Moses Silver Determination at paragraphs 135 to 140, subject to the application of the Mining Management Act 2001(the “MM Act”).
13. The MM Act came into operation on 1 January 2002. Environmental and safety issues have been consolidated under this new legislation, with the effect that operational management of the Northern Territory’s Substantial Disturbance regime has been removed from the Mining Act and placed under this new Act.
14. It is a condition of an exploration licence granted post-1 January 2002 that the grantee hold an Authorisation granted pursuant to s.36 of the MM Act “before carrying out on the licence area any exploration, operations or works involving substantial disturbance.”(s.166(1A) Mining Act.)
15. An application for Authorisation under s.35 MM Act requires the proposal and approval of a Mining Management Plan(“MMP”). An MMP must include:
(a) a description of the activity to be carried out;
(b) safety, health and environmental issues relevant to the activity;
(c) the management system to be implemented at the site;
(d) a plan and costing of closure activities.(s.40 MM Act.)
16 An Authorisation is subject to the condition that the operator complies with the approved MMP(s.37(2)(a)) and any additional conditions imposed(s.37(2)(b) and s.37(3)), including, usually, the requirement to lodge a security.(s.37(3)(c)).
17. Section 35 creates the offence of carrying out of activities without an Authorisation, the penalty for which…could be a fine of $25,000 for a natural person and [$125,000] for a body- corporate offender….
[35] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[36] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)
[37] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.
[38] There is also before me in this matter evidence relied on by the government party in relation to numerous exploration licences having been granted over the area of the tenement from 1972-2001, that these activities covered virtually all of the proposed tenement and that the activity has included stream and loam sediment sampling and diamond drilling and reverse circulation drilling .but no evidence that such activity has caused any deleterious effect to the land has been presented to me.
[39] Having concluded like Member Sosso did in Moses Silver, even before the regime was further strengthened by the Mining Management Act provisions, that the government party standard exhibit before me “highlights that the Northern Territory has in place a well advanced, integrated and proactive legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process”, and taking into account that the area of the proposed tenement is less than one eighth of the claim area and having considered the evidence of likely previous exploration activity, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to such land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 10121 to Biddlecombe Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993(Cth).
J.E. Stuckey-Clarke
Member
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