Jackie Green & Leslie Hogan on behalf of the Garawa and Kurdanji Peoples/Astro Mining NL/Northern Territory

[2002] NNTTA 250

NATIONAL NATIVE TITLE TRIBUNAL

Jackie Green & Leslie Hogan on behalf of the Garawa and Kurdanji Peoples/Astro Mining NL/Northern Territory, [2002] NNTTA 250 (12 December 2002) 

APPLICATION NO: DO 01/105

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

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IN THE MATTER of an Inquiry into Expedited Procedure Objection Application

Jackie Green & Leslie Hogan on behalf of the Garawa and Kurdanji Peoples  (native title party)

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Astro Mining NL  (grantee party)

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Northern Territory of Australia (government party)

Inquiry into expedited procedure objection application

Tribunal:   John Sosso

Place:        Brisbane

Date:         12 December 2002

Hearing dates:            12 April 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:           Ms Lisa Bowyer

Catchwords:     Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – reconstitution of Tribunal - parties contentions – Land Claim Report – Aboriginal communities – recorded or registered sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – whether act interferes with areas and sites of particular significance – no 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

Mining Act (NT) ss 24, 24A, 166

Mining Management Act (NT) Parts 3, 4

Native Title Act 1993 (Cth) ss 29, 32, 125, 151, 237

Cases:Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002

Cheinmora v Striker Resources NL (1996) 142 ALR 21

Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002

Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002

May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, Member Sosso, 25 June 2002

Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002

Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002

Smith v Western Australia (2001) 108 FCR 442

Western Australia v Smith (2000) 163 FLR 32

Western Australia v Ward (2002) 191 ALR 1

REASONS FOR DETERMINATION

Background

[1] On 27 June 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 22245 (“the proposed tenement”) to Astro Mining NL (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.

[2] The proposed tenement is located approximately 750 kilometres south-east of Darwin. ELA 22245 comprises an area of 129 blocks (approximately 424 square kilometres) which is predominantly Crown Lease in Perpetuity (95%) and Pastoral Lease as follows:

Pastoral Lease (PL) 687, which is commonly known as “Spring Creek:” and

Crown Lease in Perpetuity (CLP) 1289, which is also commonly known as “Spring Creek”.

The contentions of the parties in this matter were lodged with the Tribunal prior to the High  Court handing down its decision in Western Australia v Ward (2002) 191 ALR 1. The Court considered in that case the legal effect of the grant of a crown lease in perpetuity in the Northern Territory. Gleeson CJ, Gaudron, Gummow and Hayne JJ made these observations on the effect of such a grant (at 125): “there was a conferral of exclusive possession with the consequence that so much of native title rights and interest as had survived the loss of the right to be asked permission to use or have access to the land, consequent upon the preceding pastoral leases, was, subject to the operation of the RDA, extinguished.” While this finding would, no doubt, have great relevance to other inquiries in the Northern Territory involving some leases of this type, nonetheless in this matter the proposed tenement is not wholly comprised of crown lease land granted in perpetuity. In these circumstances, and in the absence of any submissions that the Tribunal lacks the requisite jurisdiction to proceed, I have proceeded with the basis that there is a proposed future act which has attracted a validly made expedited procedure objection application.

[3] Native title determination application D6052/01 “Spring Creek No 3”, which wholly covers the area of the proposed tenement, has been filed with the Federal Court on 30 August 2001.  This application was entered on the Register of Native Title Claims on 28 September 2001. The applicants are Jacky Green and Leslie Hogan on behalf of the Garawa and Kurdanji People.

[4] On 29 October 2001, the registered native title claim group lodged a Form 4 (Objection to inclusion in an Expedited Procedure Application) with the Tribunal. Technically this was more than four months after the section 29(4) notification of 27 June 2001 (section 32(3)), however 27 October 2001 was a Saturday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:

“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”

[5] On 5 November 2001 Deputy President Sumner directed that Deputy President E M Franklyn QC constitute the Tribunal for the purpose of this expedited procedure objection application and on 9 November 2001 Directions were issued for the conduct of the matter.  The various contentions made by the parties have been pursuant to those Directions and subsequent variations.  A Listings Hearing was convened on 12 April 2002.

[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiries could be dealt with “on the papers” pursuant to section 151.

[7] Following advice from Deputy President Franklyn as to his continuing availability, on 21 November 2002 Deputy President Sumner directed that I constitute the Tribunal for the purpose of finishing the inquiry into this expedited procedure objection application – section 125.

[8] The parties have submitted to the Tribunal extensive written contentions. For ease of reference the various Contentions, are set out below:

Government Party Contentions

Statement of Contentions of Government Party (“GPSC’) dated 19 March 2002;

Contentions in Reply (“GPCR”) dated 11 April 2002.

Native Title Party Contentions

Statement of Contentions of Objectors (“OSC”) dated 26 March 2002;

Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 8 April 2002.

Grantee Party Contentions

Letter from Astro Mining N.L. (“Gr1”) dated 3 April 2002.

[9] Much of the material presented to the Tribunal in this inquiry is similar to that lodged with, and considered by the Tribunal in Jacky Green and Leslie Hogan on behalf of the Yanyuwa, Kurdanji and Garawa Peoples/Astro Mining NL/Northern Territory DO01/104, unreported, Member Sosso  13 December 2002. That inquiry concerned the proposed grant of ELA 22244 which adjoins 22245 on its northern boundary. In that inquiry I considered an Affidavit from Mr Dixon which in significant part duplicates much of the material presented in this inquiry. When relevant and appropriate I will adopt the reasons and conclusions I reached in that inquiry for the purposes of this inquiry.

Evidence

[10] In addition to the abovementioned Contentions, the native title party lodged an Affidavit of Mr Roy Dixon.  Mr Dixon’s affidavit was affirmed on 22 March 2002 before Edward James Lowe, a Commissioner for Oaths. The Affidavit is set out in full below: 

Affidavit of Roy Dixon

“I, Roy Dixon of 4 Callistemon Drive, Katherine in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:

1.   I live in Katherine.  I am here for the dialysis.

2.   I am a member of the native title claim group in the Spring Creek 3 native title determination application (DC01/51)

3.   I am Mingirringgi for Spring Creek with Les Hogan.  We are both Mingirringgi for Wuyaliya country.  I can sign this affidavit, because I’m Mingirringgi for all the Barri Barri Dreaming there, and I know all the country there.

4.   The area of the application includes the area of ELA 22245.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “RD 22245” is a map of the ELA and the surrounding area.  Marked on it are some of the places referred to in this affidavit.  It is just west of the Garawa Aboriginal Land Trust area.  The Foelsche and the Wearyan Rivers run through it.

5.   Spring Creek has been split up in two parts, one for the mine, but the Mawson family, my nephews, still go hunting there on that land.  They go as far as the boundary between the two Spring Creek leases.  They travel from Spring Creek Station homestead, or sometimes they go from Borroloola.  They’re hunting there, they got all the motor car roads there, sometimes they footwalk, sometimes on horseback.

6.   Me and Les Hogan been all through there, not so much now, only young fellas go there.  Just for a couple of days, them Spring Creek boys: Jimmy Mawson, Ian Mawson, Clive Mawson, and their mother, Les’ sister Dulcie, and her sister, Angeline.  They always go there, dry time, getting fish.

7.   They get bream and turtle.  My son Reggie Dixon goes with that mob too.  They know all that country; they been born and grow up there.

8.   They don’t go wet time.  In the dry season they stay out there at Spring Creek, all the young fellas.  They go hunting and fishing there every weekend, and during the week they work on the Station, mustering.

9.   There’s a Pocket at the top of the Wearyan River.  Kandakiji is on the main Wearyan, west of that pocket.  It’s down at the bottom of the range there. It’s just north of the licence area.

10.    Malandja: there is only one Dreaming there.  There’s a boomerang in the hill there.  The boomerang is for the Emu who killed the people; he made that boomerang go in that hill there.

11.    Wugujalki is up from that pocket.  It’s on the Wearyan.  Wugujalki is upstream from Malandja.  That’s where Spring Creek finishes; the lease for Merlin Mine starts there; that’s the part of the Spring Creek lease they sold to the Merlin Mine.  Wugujalki is east of Merlin Mine.  It’s another Barri Barri place.  Barri Barri is Star Dreaming; he comes out; whitefella calls him Min Min Light.  If he hits you, you can’t feel it, but he’ll kill you.

12.    Langki Langki is a Dreaming – Barri Barri.  Langki Langki: he runs down Matheson Creek, and goes down to the Glyde River.  Merlin Mine is on the Matheson.  That Diamond Mine mob – we’ve told them about this.

13.    Walamandja is up from the Langki Langki, south.  It’s in the mining lease.  That’s all Mambaliya country, Jack Green’s country.  There is a sacred cave there, at Walamandja.  Walamandja is a Barramundi dreaming on the top of the Foelsche River, just to the south of the licence area.  There is a File Snake right there, at Kundiriji.  We call him Bunabuna.  The top of the Foelsche River is too rough.

14.    At Washing Spring, Junmanyina, the Salt Road from Kiana to Robinson River goes across the boundary of Robinson River (The Land Trust) and the Merlin Mine lease – that’s the part of the Spring Creek lease they sold to the Merlin Mine.  It’s not far from Langki Langki.

15.    I am Junggayi for Jililila, of Jililina.  It’s a Mamabaliya site in the licence area.  It’s on the Foelsche River.  It belongs to Jacky Green.  Jacky Green is the main Mingirringgi.  There’s only a painting there in the rock, but down below, the Rainbow Serpent’s there, in the Foelsche.  They call it Emu Creek; it runs into the Foelsche River, going west from Barramundi Yard.  It goes right up to that painting place.  Emu Creek must be in the Robinson River Land Trust, because it was always inside old Robinson boundary.  Before, people used to come across there from Robinson to go hunting, but nowadays, they don’t go there.

16.    We need to look for those places on the ground.

17.    I show people around my country.  I don’t want to see anything damaged.

[11] The government party challenged the authority of Mr Dixon to provide the evidence outlined in his Affidavit on the basis that the only person revealed in the Application as authorised by the claim group in DC01/51, D6004/01 was Mr Jack Hogan. As with DO01/104, the government party has proceeded on an incorrect premise. The Application in this matter is D6052/01, and the applicants are Mr Jacky Green as well as Mr Leslie Hogan. I am not apprised of who is, or who is not, a member of the claim group in Application D6004/01. However, for the purposes of this inquiry I am satisfied that Mr Dixon is a member of the claim group, and for the same type of reasons which I outlined in DO01/104 I am satisfied that he not only can provide evidence on community and social activities, but also has the requisite authority to speak on behalf of the star dreaming sites.

Aboriginal Communities

[12] In DO 01/105, the native title party contends that Spring Creek and Borroloola are relevant communities although Spring Creek is situated some 10 kilometres north of the licence area and Borroloola is over 40 kilometres from the northern boundary. No aboriginal communities are suggested to be located within the boundaries of ELA 22245.

Recorded or Registered Sites

[13] There is only one site recorded by the AAPA within the proposed tenement, although there are a number of others within a reasonable distance from the northern boundary. The recorded site only has an AAPA status of 10. This is the lowest status ascribed by the Authority to a recorded site, and while in no means an indication of the significance of such a site, it does mean that the particular site has not been documented and evaluated by the Authority. The details of the recorded site are set out below:

6264-22Mabandu – A rock shelter in close proximity to a group of sandstone type monoliths rising abruptly from undulating country 700 metres west from the Foelsche River and approximately 7 km to the south from Barramundi Yard.

Previous Exploration Activity

[14] From information supplied by the government party, it is clear that the proposed tenement has been subject to a number of previous exploration grants by the Northern Territory dating back to at least 1963.

[15] The whole of the area of ELA 22245 has been subject to exploration activity. This has been predominantly stream sediment sampling and stream sediment/loam sampling with a small area in the south western sector where diamond drilling has occurred.  The government party advised (GPSC at para 84) that no previous mining activity has been recorded within the boundaries of the proposed tenement.

[16] Diamond drilling was carried out between 1979 and 1981 on Exploration Licences 1331 and 2888. Stream sediment/loam sampling was carried out over a longer period of time (1985 – 1994) and on a number of tenements within the subject area – Exploration Licences 4469, 4692, 7195, 7267, 7474, 8067 and 8520. Finally stream sediment sampling was carried out during 1991-1993 on Exploration Licence 7204.

[17] Outlined below are details of previous mining and exploration tenements granted over the land and waters of ELA 22245:

Authority to Prospect – AP 983, 1056, 1123, 1321, 1343, 1411, 1888, 2169, 2233, 2871, 3083, 3247

Exploration Licence – EL 1011, 1326, 1331, 2666, 2669, 2888, 4466, 4469, 4692, 4989, 4990, 6946, 7195, 7204, 7265, 7267, 7474, 8064, 8067, 8520, 8711

[18] There are no current mining tenements on the proposed tenement.

[19] Existing mining tenements in the immediate vicinity of ELA 22245 are as follows:

EL – 7294, 8134, 9058; 

SEL – 9779, 8630;

MLN - 1125, 1124, 1121, 1122, 1123, 1154;    

Authorisation (A) – 22806; and

Authorisation Northern (AN) – 366, 455, 456, 457.

[20] It is of relevance to highlight that the Merlin diamond mine is located within a relatively short distance to the west of the proposed tenement. Mr Dixon makes specific mention of the Merlin mine in his Affidavit (see para 14).

Nature of the Proposed Exploration Activity

[21] The grantee party provided an extensive attachment to its Application for the Grant of an Exploration Licence.  This covered information in relation to ‘Exploration Philosophy’ and the ‘General program for the initial first year of licence’ including explanations in regard to the proposed activities of data acquisition and interpretation, Landsat TM studies, indicator mineral sampling, geochemical sampling, geophysical surveys, drilling, laboratory analysis and Consultants.

[22 In regard to its exploration program for subsequent years, the grantee party advised:

“Exploration following the first year will depend on results generated in the 1^st year.  However it is envisaged that, as exploration progresses, results will highlight areas for further work and other areas for possible relinquishment.  If results warrant subsequent exploration would involve detailed sampling grids in anomalous areas, drilling of anomalies and bulk sampling of areas to establish the presence of macrodiamonds.”

Expert Evidence Adduced by the native title party

[23] In addition to the Affidavit of Roy Dixon, the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy, the transcripts of evidence given by Messrs Stead and Foy to Member Stuckey-Clarke in December 2001 and the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.

[24] I have considered all of this material in a number of inquiries, and for the purposes of this inquiry I adopt my comments at paragraph 23 of Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002. So far as is relevant, I also adopt the analysis and comments of Deputy President Franklyn in  Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].

Land Claim Report

[25] The native title party has sought to rely on the findings of Olney J in the Garawa/Mugularrangu (Robinson River) Land Claim Report. I considered this Report in DO01/104, and I adopt, for the purposes of this inquiry, my findings on the relevance of the Report in that matter.  It should be noted that the land and waters under consideration by His Honour in the Land Claim Report fall outside the area of the proposed tenement and lie to the immediate east.

Legal Principles

[26] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.

[27] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:

“A future act is an act attracting the expedited procedure if:

(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”

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

[28] The only primary evidence of community or social activities is provided by Mr Dixon in his Affidavit. That evidence highlights the limited extent to which contemporary community and social activities are carried out on ELA 22245. Basically, as was the case in DO01/140, Mr Dixon deposes to members of the Mawson family, together with other native title holders (including his son Reggie) engaging in hunting, fishing and like traditional activities on weekends during the Dry Season. It would appear that the Mawsons live at Spring Creek Station Homestead during the Dry Season and during the week engage in cattle mustering.

[29] There are two important aspects of Mr Dixon’s evidence. In the first place he says (at para 5): “Spring Creek has been split up in two parts, one for the mine, but the Mawson family, my nephews, still going hunting there on that land. They go as far as the boundary between the two Spring Creek leases.”  This would appear to be a reference to the boundary between Spring Creek Pastoral Lease (PL687) and Spring Creek Crown Lease in Perpetuity (CLP 1289). The boundary between the two leases is in the extreme northern part of the proposed tenement. The government party made this apposite observation (GPCR at para 59): “Only an area of less than 2 kilometres by 10 kilometres (20 km2) of the proposed licence area lies within the Spring Creek Pastoral Lease. The proposed licence area is well over 570 km2 in total.” In short, the evidence of Mr Dixon strongly indicates that only a tiny proportion of the overall area of the proposed tenement is accessed by members of the claim group for traditional activities.

[30] The second aspect of Mr Dixon’s evidence pertains to his own personal experiences in relation to hunting, fishing and engaging in traditional activities on the subject area. Again Mr Dixon deposes (para 6) that he and Les Hogan had “been all through there” however he then qualifies this statement by saying “not so much now, only young fellas go there”. This statement is understandable having regard to Mr Dixon’s seniority and the fact that he now resides at Katherine undergoing dialysis treatment. As such, while Mr Dixon can give secondary evidence about what community and social activities others engage in, his own primary evidence about his own experiences and observations of others, would now appear to be historical.

[31] It is also clear from Mr Dixon’s Affidavit that whilst the area of the proposed tenement that falls within CLP 1289 may have been accessed in the past for community and social activities, this is no longer the case. Thus he says of the area west of Barramundi Yard (which is east of the proposed tenement) and towards Jililila (which is within the proposed tenement): “Emu Creek must be in the Robinson River Land Trust, because it was always inside the old Robinson boundary.  Before, people used to come across there from Robinson to go hunting, but nowadays, they don’t go there.” I infer from that statement that in the past traditional owners would come across into the proposed tenement from the land which is now within the Garawa Aboriginal Land Trust, but this no longer takes place.

[32] The only other suggested type of activity relied upon by the native title party is the contention (OSC at para 63) that native title holders actively look after country by visiting and maintaining sites. Reliance is placed on Mr Dixon’s statement (at para 17) that he shows people around country. The government party made these submissions in reply (GPCR at para 64):

“There is no evidence led by the Objectors to support the assertion that the community of native title holders actively look after country by visiting and maintaining sites.  The Objectors contentions refer to paragraph 30 of the Dixon affidavit.  However there is only 17 paragraphs to Mr Dixon’s affidavit.  Paragraph 17 does state: ‘I show people around my country. I don’t want to see anything damaged.’ It is unclear with (sic) this paragraph refers to visiting sites as (apparently) asserted or rather whether the deponent is expressing a request for a site clearance process. At paragraph 6 Mr Dixon noted he does not go to country ‘so much now, only young fellas go’. Paragraph 17 in the context of the preceding paragraph (we need to look for those places on the ground’) would appear to suggest it is a request for site clearance.  Such a process is required under the conditions of the proposed licence ….”

The submissions of the government party are persuasive. Clearly there is no material before the Tribunal that either Mr Dixon, or for that matter any other native title holder, visits the proposed tenement to maintain sites, or to have any interaction with sites. There is no evidence that native title holders take children or others to the subject area to be taught about sites or traditional laws and customs. In short, the contention of the native title party is not supported by the material before the Tribunal.

[33] In assessing the likelihood of the future act interfering directly with the carrying on of the community or social activities of native title holders I have taken into account the following factors:

(a)there are no Aboriginal communities located within the proposed tenement;

(b)the closest community of native title holders is said to be Spring Creek Station Homestead which is located some 10 kilometres north of the proposed tenement. The only other community relied upon was Borroloola which is over 40 kilometres distant;

(c)the evidence of community and social activities is basically limited to the material deposed by Mr Dixon. Although the native title party has sought to rely on findings of Olney J in the Garawa/Mugularrangu (Robinson River) Land Claim Report with respect to foraging, I adopt my findings in DO01/104 in this regard. In that matter I pointed out that His Honour made no specific findings about the right to forage other than of its existence. Moreover, there were no findings about such an entitlement (as distinct from findings about the exercise of that entitlement) with respect to the land and waters comprising ELA 22245;

(d)the clear purport of Mr Dixon’s evidence is that hunting, fishing and traditional social and community activities are engaged in during the Dry Season on weekends. However these activities would appear to be restricted to a very small sliver of country within PL 687 in the extreme northern portion of the proposed tenement. In short, there is no evidence before the Tribunal that land and waters comprising some 90 per cent of the proposed tenement are accessed for hunting or fishing by native title holders. Of a total area of some 424 square kilometres only some 20 or so square kilometres is used for this activity. Accordingly when assessing the risk of interference with such activities, not only is it relevant to take into account the relatively large area of the proposed tenement, but also the limited area that is utilised for hunting and fishing;

(e)the community and social activities which Mr Dixon personally engaged in on the proposed tenement would appear to have taken place in the past, with Mr Dixon now, due to age and health problems, no longer actively taking place in hunting, fishing and like activities. Accordingly, the evidence of community and social activities is largely second hand, with no primary evidence being presented to the Tribunal by any native title holder who currently  and actively engages in such activities on the proposed tenement;

(f)whilst this general area of the Northern Territory has been the subject of quite extensive (and ongoing) exploration and mining activities, no evidence was adduced that previous exploration or mining has impacted negatively on the community or social activities of native title holders;

(g)the regulatory regime in force in the Northern Territory contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities. In previous inquiries I have referred to the conditions imposed on grantees pursuant to section 24A of the Mining Act. It should be noted that the Conditions were re-issued in August 2002 and as a result the numbering of some of the Conditions has altered from those quoted in previous inquiries. Basically, however, the Conditions remain very similar in wording and effect as those considered earlier. I will not repeat each and every one of the relevant conditions, however the first two Conditions are of particular relevance to a section 237(a) assessment:

“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 of the environment of the licence area, in particular by minimising:

(a) interference with the use of the land by other persons;

(b) the disturbance of flora, fauna and other natural resources;

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

(d) the incidence and effects of soil erosion.”

There are other provisions in force in the Northern Territory which I have also previously outlined in other inquiries (in particular section 166 as well as Conditions 12 - 21), however the cumulative effect of the various provisions in the Mining Act is such, that it is possible to infer that there is a comprehensive and well integrated legal regime which is aimed at minimising (as far as is practicable), disturbance to community or social activities by explorers. While the existence of this statutory regime does not automatically result in a finding that there is no likelihood of interference within the meaning of section 237(a), nevertheless it is an important factor to be considered when making a predictive risk assessment;

(h) the grantee party has not made any submission on its intentions. In the absence of such evidence the Tribunal is entitled to work on the assumption that the grantee party will, subject to the regulatory regime in force, fully exercise its legal entitlements. For the purpose of this inquiry, I have proceeded on that assumption. Nonetheless, the Tribunal is also entitled to presume that the grantee party will act lawfully in exercising rights given under the exploration licence – see Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Deputy President Franklyn; and

(i) Mr Dixon does not depose that he is opposed to exploration per se. Rather he expresses the desire to show people around his country and to prevent his country being damaged. I take it from his Affidavit that Mr Dixon wishes to be consulted about exploration activity and to ensure that exploration is carried out in a culturally appropriate manner. Mr Dixon’s implicitly stated desire that appropriate access procedures be put in place is addressed by Condition 6 (the old Condition 18) of the Conditions imposed on explorers pursuant to section 24A of the Mining Act. A compulsory on-site meeting on the licence area between the grantee party and registered native title claimants is mandated so that proposed exploration activities can be explained. The Condition requires the explorer to have regard to representations made in relation to any aspect of proposed exploration activities which raise concerns. In particular Condition 6(c) provides: “The Licensee must have regard to representations made to it at the meeting regarding any aspect of the exploration activities which raises concerns.  These representations may deal with access procedures to particular areas of land within the licence area.” This requirement should ensure that the type of issues raised by Mr Dixon can be addressed and that appropriate procedures are put in place to ensure that exploration is conducted in a culturally appropriate manner.

[34] When assessing the likelihood of interference with community or social activities, the Tribunal does not proceed on the basis that any likely intersection between the granting of the future act and the carrying on of the said activities will result in a finding of interference. If that were the case then in almost all cases the Tribunal would uphold expedited procedure objections irrespective of the nature or quality of the likely interference. Rather, as French J held in Smith v Western Australia (2001) 108 FCR 442, not only must there be a real chance or risk of interference but in addition the interference must be substantial in its impact upon community or social activities. In short, the fact that there is likely to be an intersection between exploration and community and social activities is not determinative of the issue. The Tribunal must weigh up the likely impact of the exploration. In evaluating the likely impact a range of factors are potentially relevant. In the context of this inquiry it is of importance that the community and social activities are geographically limited and that in the context of the proposed tenement constitute only a very small part of the overall area. Further, it also of relevance that the activities are basically limited to the Dry Season and then mostly to weekends. Again, the fact that previous exploration and mining activities is not said to have interfered with the said activities is also a factor that can be taken into account in assessing the likelihood of future interference.

[35] In conclusion, the evidence before the Tribunal leads to an assessment that the grant of ELA 22245 would not be likely to result in direct interference to the community or social activities of native title holders.

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

[36] The native title party has contended (OSC at para 68) that there are eight sites which are said to be of particular significance that the grant of the exploration licence is likely to interfere with. Those sites are set out below:

(a) Kandakiji, a star dreaming site;

(b) Malandja, a dreaming site;

(c) Wugujalki, a star dreaming site;

(d) Langki Langki, connected with the star dreaming;

(e) Walamandja, a barramundi dreaming site;

(f) Kundiriji, a file snake dreaming site; and

(g) Jililila (Jililina), a Mambaliya site.

[37] The first issue is whether Mr Dixon has the requisite authority to provide credible evidence to the Tribunal about the nature and significance of these sites to native title holders in accordance with their traditions. I found in DO01/104 that Mr Dixon has the requisite authority to inform the Tribunal about the various dreaming sites and tracks he outlined in the Affidavit produced in that inquiry – see [67]. Mr Dixon’s Affidavit is similar in some respects to the Affidavit I considered in DO01/104. In the circumstances I have proceeded on the assumption that Mr Dixon has the appropriate authority to provide evidence on the sites outlined in his Affidavit.

[38] The government party points out (GPCR at para 68a) that the location of the abovementioned sites is marked on the map attached to Mr Dixon’s Affidavit. Of those sites he refers to only one is actually located within the boundaries of the proposed tenement. In addition the government party also highlights inconsistencies in the evidence provided by Mr Dixon in this and other expedited procedure objection inquiries about the location of some of the named sites (see GPCR at para 68b and 68c). I will assume for the purposes of this inquiry that the sites are located where indicated on the map attached to Mr Dixon’s Affidavit.

[39] Before undertaking a predictive risk assessment pursuant to section 237(b) the Tribunal must be satisfied that a named area or site is of particular significance. There are a number of problems presented by the material before the Tribunal. The evidence in this regard is basically limited to the Affidavit of Mr Dixon. With the exception of his discussion of Jililila, most of the rest of Mr Dixon’s Affidavit evidence is cursory with very little detail given about any of the sites mentioned.

[40] Clearly the fact that sites are mentioned by Mr Dixon signifies that they are of some importance or significance having regard to Mr Dixon’s status within the claim group and his undoubted authority to speak on behalf of various sites (particularly star dreaming sites). However, the fact that a named site is of some importance is not sufficient. Carr J in  Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 35 held that to fall within section 237(b) a site must be of “special or more than ordinary significance to native title holders in accordance with their traditions.”

[41] When undertaking a section 237(b) assessment the Tribunal is not making decisions with scientific precision. Inevitably the Tribunal is working with evidence the very nature of which calls for evaluative judgments, coloured as they are, by the cumulative nature of the evidence presented. As a matter of commonsense in most inquiries it is patently clear if an area or site falls within this category by the very nature of the evidence given by native title holders. That evidence almost always speaks for itself, and it is almost always the best evidence in such an inquiry. Even if one cannot sum up in the abstract what is or what is not in the evidentiary quality that demonstrates an area or site is of special significance, it is usually manifestly obvious from the nature of the words used by the traditional owners themselves.

[42] Such clarity, as I said, is not obvious from Mr Dixon’s evidence to this inquiry. In part it is very brief and the particular sacredness of named sites is not explained. Thus Mr Dixon says of Kandakiji, simply that it is located on the Wearyan River, west of a “pocket” at the “top” of the Wearyan River. There is absolutely nothing in this statement signifying anything at all about this site, let alone whether it is of particular significance. In the event recourse had to be made to Mr Dixon’s Affidavit in DO01/104, where he explains that Kandakiji is a star dreaming site. In DO01/104 I was prepared to find that this was a site of particular significance, and I make a like finding in this inquiry. Likewise I find that the other star dreaming sites are also sites of particular significance.  The evidence about some of the other sites is very limited, however for the purposes of this inquiry, and taking into account the totality of the evidence provided in both this inquiry and in DO01/104, I will also ascribe to them the status of particular significance. However while I am prepared to make such a finding for the purpose of this inquiry, I place on record that I have only been prepared to do so having regard to the Affidavit presented by Mr Dixon in DO01/104. If I did not have regard to that Affidavit, then there clearly would not have been sufficient material for me to make a finding of particular significance in this matter.

[43] It is not necessary that a site be located on a proposed tenement for a finding being made that there is likelihood that the grant of the proposed future act will interfere with it. However, there must be some evidence that illustrates how the grant of the exploration licence would pose a real risk or chance of interference with the area or site at issue. The fact that a site is off-tenement requires, then, specific evidence of that nexus rather than statements in the abstract or broad generalisations. A native title party cannot simply rely on the fact of exploration on-site as demonstrating the nexus to an off-site location. A native title party must present to the Tribunal specific evidence either about the particular nature of the site (e.g. that there is a zone around it which intersects with the tenement area) or the nature of the exploration activities, such that it is possible to determine that there is a real risk or chance of interference.

[44] There is no material before me which would in any credible way suggest that the grant of the exploration licence would be likely to interfere with any of the off-tenement sites.

[45] The only site named by the native title party which is located within the subject area is  Jililila (Jililina). This site is located in the north-east portion of the proposed tenement. Mr Dixon deposes that he is Junggayi for the site, which is located on the Foelsche River. He says (at para 15): “There’s only a painting there in the rock, but down below, the Rainbow Serpent’s there, in the Foelsche.” The government party made these submissions about this site (GPCR at para 68f): “it is clear that many of the locations named do not have an associated avoidance requirement. For example at paragraph 15, it is indicated that people (from the Robinson River Land Trust) used to hunt in the area Jililina.”

[46] In assessing the likelihood of interference with this site, consideration must be given to the relevant provisions of the protective regime in force in the Northern Territory dealing with areas or sites of significance. In the context of this site (which is not recorded or registered by the AAPA) particular regard must be had Condition 1 of the section 24A (Second Schedule) Conditions (set out previously). This Condition specifically requires a licensee to carry out its activities in such a way as to minimise any interference with areas or sites of particular significance. Other Conditions of relevance are set out below:

(a)Condition 7 requires that all exploration personnel and their contractors and agents must be instructed on the legal necessity to protect sacred sites and other significant archaeological sites and structures which may exist within a licence area;

(b)Condition 8 requires a licensee to consult with the AAPA and inspect the Sites Register before commencing any work in the licence area; and

(c)Condition 6 imposes an obligation on a licensee prior to the commencement of exploration activities to convene a meeting on the licence area (or nearest convenient locality) with registered native title claimants to explain the proposed exploration activities. The licensee is required to have regard to any representations made in relation to any concerns of native title holders. Specifically Condition 6 (c) says: “These representations may deal with access procedures to particular areas of land within the licence area.” There is also a complaint mechanism in Condition 25 allowing dissatisfied native title holders to complain to the Minister, and empowering the Minister to intervene.

[47] The cumulative effect of these (and other) provisions is to put in place a comprehensive and well integrated regime designed to ensure that the risk of interference with areas or sites or particular significance is minimised. Of course, the operation of this regime does not inexorably lead to the conclusion in every inquiry that there is not a real risk or chance of interference within the meaning of section 237(b). Nonetheless, in making an assessment of the likelihood of interference, the fact that the Northern Territory has put in place a series of a provisions designed to address and minimise the risk of such interference, is a relevant and very important consideration.

[48] In this matter there is no evidence of any previous exploration or mining activity resulting in any interference to areas or sites said to be of particular significance.  In addition, the evidence before the Tribunal does not disclose that this general area is “site rich”.

[49] While I have been prepared to find that Jililila is a site of particular significance, the information provided about this site is scarce. In addition there is no evidence suggesting that there is a zone of exclusion around this site; indeed the evidence of previous traditional hunting activities in the vicinity (see para 15 of Mr Dixon’s Affidavit) leads to a contrary conclusion. It is the case that apart from the existence of a well integrated protective regime for such sites in the Northern Territory, there is also an absence of evidence that any of the previous and quite extensive exploration activity in this area resulted in any interference with this or any other named site.

[50] There is no material before this inquiry that would suggest that it is not appropriate to apply the presumption of regularity to the grantee party. I have proceeded on the assumption that the grantee party would comply with the relevant statutory requirements pertaining both to the protection of sacred sites and consulting with traditional owners.

[51] Mr Dixon does not depose that he is opposed to exploration, nor does he raise any particular concerns about sites within the boundaries of the proposed tenement.

[52] All of the above factors, in combination lead to the conclusion that there is no likelihood that the grant of the proposed tenement would result in interference to Jililila (Jililina) within the meaning of section 237(b).

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

[53] The native title party made extensive submissions on the issue of major disturbance. Despite the length of the submissions, and the many interesting legal points that were raised,  the vast bulk of the submissions were not directed to the particular circumstances of the proposed tenements, but were of a generic type received in most Northern Territory expedited procedure objection inquiries.

[54] In Moses Silver I set out key provisions of the then regulatory regime governing exploration activities in the Northern Territory. Subsequently Deputy President Franklyn described the changes brought about by the Mining Management Act in Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, 27 March 2002 and Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported 17 April 2002. More recently I considered the relevant provisions of the Mining Management Act in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002. I adopt, for the purposes of this inquiry, the analysis of the regulatory regime set out in the abovementioned determinations. In particular I have considered the following provisions in this inquiry: sections 24(j), 24A (in particular Conditions (as re-issued in August 2002) 2, 3, 6, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24), 166(1A), (1B) and (2) of the Mining Act and Parts 3 and 4 of the Mining Management Act. The evidence submitted in this inquiry about the regulatory regime is consistent with previous findings of the Tribunal that it goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and to native title rights and interests are minimised as far as is practicable in the circumstances. Nevertheless despite the advanced and proactive nature of this regime, it is never a complete response to a predictive assessment by the Tribunal under section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant and has been raised), and such other issues as may be pertinent.

[55] No evidence has been led about previous exploration activity resulting in any disturbance to the land and waters comprising ELA 22245.

[56] The relevant native title party has not highlighted any convincing special physical circumstances of the subject land and waters that would render exploration of the type proposed by Astro Mining NL more likely to result in major disturbance.  The only physical circumstances outlined (OSC at para 109) was that the upper parts of the Wearyan and Foelsche Rivers were in the licence area. The fact that the proposed tenement is traversed by two major rivers does not, of itself, render it more likely that exploration would result in major disturbance. The native title party has not explained why the existence of these rivers, in the context of the exploration proposed, would render it likely that major disturbance would occur.

[57] As the government party contended (GPCR at para 78) there is no evidence before the Tribunal of any sensitive geological or environmental areas in the proposed licence area, such that there could be said to be a real chance or risk of major disturbance eventuating should the exploration licence be granted. The government party also made these submissions (GPCR at paras 79 and 80):

“79. The state of the evidence simply does not establish how, where and why a major disturbance is likely to occur to any land or waters concerned.

80.  The Government party iterates its contention that, taking into account:

(i)     the absence of evidence of major disturbance;

(ii)the overall regulatory scheme which governs the exercise of the rights under the grant;

(iii)the additional statutory checkpoint which seeks to prevent and/or remedy any potential substantial disturbance, including by attaching remedial conditions; and

(iv)the statutory requirement that productive mining activities need proceed through a completely independent future act process under the NTA than that for exploration activities,

the Tribunal will conclude that the grant of the proposed licence does not 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.”

[58] The only other issued raised by the native title party was the contention that Mr Dixon must show people around his country, and that, as a result, exploration activities would be likely to have an impact on the cultural concerns of the  native title claim group. A similar contention was made in DO01/104 and I adopt my reasoning at [84] for the purposes of this matter.

[59] I have formed the view that the evidence before the Tribunal does not establish that there is a likelihood of major disturbance within the meaning of section 237(c). Particular factors I have taken into account include:

(a)the absence of any communities located within the boundary of the proposed tenement;

(b)the absence of any evidence that previous exploration activities has resulted in any major disturbance to the land and waters comprising the subject area;

(c)the absence of any evidence that the area contains environmental or geological features requiring special consideration;

(d)the regulatory regime in force in the Northern Territory governing disturbance to land and waters by explorers; and

(e)the application of the presumption of regularity to the grantee party.

Determination

The determination of the Tribunal is that the grant of Exploration Licence 22245 to Astro Mining NL is an act which attracts the expedited procedure under the Native Title Act 1993.

John Sosso

Member