Jackie Green & Leslie Hogan on behalf of the Yanyuwa, Kurdanji and Garawa Peoples/Astro Mining NL/Northern Territory
[2002] NNTTA 251
•12 December 2002
NATIONAL NATIVE TITLE TRIBUNAL
Jackie Green & Leslie Hogan on behalf of the Yanyuwa, Kurdanji and Garawa Peoples/Astro Mining NL/Northern Territory, [2002] NNTTA 251 (12 December 2002)
APPLICATION NO: DO 01/104
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 Yanyuwa, Kurdanji and Garawa 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
Northern Territory Aboriginal Sacred Sites Act (NT) ss 33, 34, 35, 36, 37
Cases:Andy Andrews & Ors/Exploration & Resource Development Pty Ltd/Northern Territory DO01/123-125, unreported, Member Sosso, 19 August 2002
Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002
Billy Coolibah & Ors on behalf of the Gurdanji and Garawa Peoples/Ashton Mining Ltd/Northern Territory DO01/60, unreported, Member Williamson, 15 July 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
Kathleen Parry &Ors/Falconbridge (Australia) Pty Ltd/Northern Territory DO02/48 – 49, unreported, Member Sosso, 22 November 2002
Little v Western Australia [2001] FCA 1706
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
Robert Patrick Markham & Ors on behalf of the Wagiman, Dagoman and Jawoyn Peoples/Northern Territory/Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge DO02/51-52, unreported, Deputy President Sumner, 29 November 2002
Smith v Western Australia (2001) 108 FCR 442
Western Australia v Smith (2000) 163 FLR 32
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 22244 (“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. It covers an area of 451 blocks (approximately 1445 square kilometres) and is comprised of:
Pastoral Lease (PL) 687, which is known as “Spring Creek”; and
Pastoral Lease (PL) 685, which is known as “Manangoora”
[3] Native title determination application D6051/01, “Spring Creek No. 4”, which was lodged on 30 August 2001, wholly covers the area of the proposed tenement. This application was entered on the Register of Native Title Claims on 28 September 2001. The applicants are Jacky Green & Leslie Hogan.
[4] On 29 October 2001, the registered native title claim group lodged with the Tribunal a Form 4 (Objection to inclusion in an Expedited Procedure Application). 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 inquiry 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.
Evidence
[9] In addition to the abovementioned Contentions, the native title party lodged an Affidavit of Mr Roy Dixon which was affirmed on the 8 March 2002 before Susan Leslie Meredith, a Justice of the Peace. The Affidavit is set out in full below:
Affidavit of Roy Dixon ( DO 01/104)
“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 4 native title determination application (DC1/50)
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 22244. I have seen a map of the area of the ELA. Now produced and shown to me marked “RD 22244” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
5. Inside the ELA area, there is Spring Creek station and Scrubby Creek on the western side. The ELA boundary runs along the Wearyan River on its eastern side. The main road into Spring Creek station runs through the ELA.
6. A Dog Dreaming runs along Fletcher Creek inside the ELA.
7. You got all the deadfella in the cave on the west side of Bull Creek, on Scrubby Creek. It’s called Dikalana. There are bones there. There are burials of the ELA area mostly on Bull Creek. They got two: Yabalan on Bull Creek, and Jininyina where the Spring Creek Station Homestead is.
8. Jininyina is right at the old station. It is Barri Barri (Star) Dreaming. On the south side of the Homestead, there is one big rock there for that Dreaming. There is Cold Weather Dreaming there too, mixed up with Star, just up from the new station, about three miles south on Spring Creek. That Star, he comes out; whitefella calls him Min Min Light. If he hits you, you can’t feel it, but he’ll kill you.
9. There is Cold Weather Dreaming at the Old Station. That old brother of Les Hogan’s showed me a cave there right at the station, Cold Weather Dreaming. He’s on top of the hill. It’s rough. Wurrarrawala is the name for Cold Weather, Cold Wind.
10. If you follow Spring Creek down from the Station, you get to:
a. Bililiwina, that lagoon. There’s no dreaming there;
b. Morkuda, further down, another waterhole;
c. Kararana, a lagoon;
d. A place called Sugarbag; and
e. Najalulu, at the junction of Spring Creek and the Wearyan River.
11. Downstream from the junction of Spring Creek with the main river, the Wearyan, there is:
a. One creek off to the east called Wandabalunjudja. There is a big stone up in the tea tree there. It’s a bad one. There’s another Barri Barri there. We don’t go near that one, the mining company might get sick if they go there.
b.Bugajina, down the Wearyan. We used to get a big mob of fish there. There’s one little waterhole there; must be a Dreaming there too.
c.Bang.arra, which is called George Yard.
d.Marawi (Wire Yard) on the east side of the Wearyan, still on the Spring Creek lease. It is Star Dreaming. There’s a big shady coolabah tree there. Barri Barri lives there at the tree. They can’t cut the coolabah trees. They can go past them, but they shouldn’t touch anything. There’s a big swamp there, one or two kilometres across. They can go in the swamp, but they can’t touch the trees; it’s dangerous.
That western side of the Spring Creek boundary with the Robinson River Land Trust area is all Barri Barri country. Marawi is further upstream from Caroline Yard. It’s upstream from the Garawa Aboriginal Land Trust area (Robinson River). It’s south of the junction with Bull Creek.
The Mawsons muster all that country, and they go through that Barri Barri country too on the eastern side of the Wearyan, but they stay away from that main dreaming place Marawi, that big Coolibah tree. There’s a big swamp there. They always get turtle there; they’re alright there. Before, cattle went under that tree there, and Barri Barri killed them cattle, ate them up. Young fellas now, they can’t go near that tree, but they can go a little bit away, they can get turtle, and grey fish, bucketfuls.
At one little waterhole on the eastern side of that swamp at Marawi; you can’t get anything there. That Barri Barri don’t allow you to take turtle. They come in the night time, just like a motor car light. That’s their base there at Marawi.
e. Markaninyina – he’s on Wearyan. They call him Sugarbag Waterhole. It’s right on the boundary for Robinson River; the boundary goes straight across the water. It’s too dangerous; Barri Barri is there. The mining company can’t go there. Barri Barri is sitting down in the hollow log. It comes out at night. If the mining company goes there, people might get killed. That spirit will kill them. It’s a separate Barri Barri from the one at Surprise Creek, south of the Land Trust area. They visit one another.
f. Down past Sugarbag, there is Bulburr Creek, between Cow Creek and the Wearyan – in the middle, on the Land Trust. It’s all Barri Barri country; that country goes east from Caroline Yard. Barri Barri comes from the Spring Creek station area. That’s their home, they live there. Then, from there they go into the Land Trust area. Barri Barri goes between the Wearyan and the Foelsche on the Land Trust.
g. There’s a lagoon there, Paperbark Yard. It’s called Kunanda. You can go hunting and fishing there. We can go any time. I been go there last year. A big road goes there. We go fishing down the Wearyan: at Kunanda, Bulburr Creek on the Land Trust (Spring Creek used to run the cattle there), Bididinguji.
12. At Garrgarrgana, a Chicken Hawk made a fire on a hill. That’s the one they sing him song for young people when they want to make him young man. It’s east of the creek near where the road into Spring Creek Station goes close to the eastern boundary of ELA 22244. It’s right on the top end of The Fletcher[River].
13. People go hunting around Poison Creek. They come from Borroloola and from Spring Creek station, and from Manangoora Station. The Mawson family, my nephews, used to use that land. They’d come from Spring Creek Homestead.
14. A big mob of people go up Scrubby Creek hunting and fishing – the Mawson family. I’ve seen them do it, when I was working for them. I’ve been stockman for them when I finished counting at Mallapunyah.
15. The head of Scrubby Creek is all right.
16. There’s a big lake at Barambaram.
17. In the other direction, we’re looking higher up on the Wearyan, South east from the homestead, there’s:
a. Bardunbana; that’s the name for a little round hill, a rock, a river wallaby. There’s still Barri Barri there. It’s inside the licence area.
b. Marlarana. It’s all Barri Barri. It’s on the Wearyan south from Spring Creek Station. It’s on the border of the licence area.
c. Kunbukuku is Barri Barri.
18. We go there, south from the Station. People always go there from Spring Creek Station homestead, where they live: Jimmy Mawson, Clive Mawson, all my nephews. They are Junggayi, full Junggayi. They belong to my sister. The mining company can go. There are motor car tracks there. That Mawson mob go hunting and mustering all through. They go south as far as one place called Wugujalki, one spring there; to Kandakiji, there’s one gorge there, not far from Malandja.
19. Spring Creek is 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.
20. 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 the mother, Les’ sister Dulcie, and her sister, Angeline. They always go there, dry time, getting fish.
21. 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.
22. 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.
23. There’s a Pocket at the top of the Wearyan River. Kandakiji is on the main Wearyan, west of the pocket. It’s down at the bottom of the range there. It’s a gorge, there’s Barri Barri in there. It’s still on the licence area.
24. 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. Malandja: that’s where that Black Bream Dreaming is there in the dry swamp.
25. 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.
26. 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.
27. Walamandja is up from 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. There is a File Snake right there, at Kundiriji. We call him Bunabuna. The top of the Foelsche River is too rough.
28. 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.
29. We need to look for those places on the ground.
30. I show people around my country. I don’t want to see anything damaged.
[10] The government party challenged the authority of Mr Dixon to provide the evidence outlined in his Affidavit. (GPC at para 84): The following submissions were made:
“At the outset it should be noted that the only people revealed in the application and accompanying affidavit as authorised by the claim group in DC01/50, D6007/01 is Marjorie Foster and Arthur Que Noy. Mr Dixon is not suggested in the application as so authorised and thus a question is raised about the reliability/weight of his evidence in this matter.”
[11] It will be noted that the government party has proceeded on an incorrect premise. The claim group in this matter is D6051/01 and not D6007/01. The applicants are not Marjorie Foster and Arthur Que Noy. Mr Dixon states that he is a member of the native title claim group in the Spring Creek No. 4 native title determination application. No material before me would suggest that this is not the case. Further, Mr Dixon says that he is, with Mr Leslie Hogan (who is one of the applicants), Mingirringgi for Wuyaliya country and he is Mingirringgi for the Barri Barri Dreaming. Again there is no material before the Tribunal which casts any doubt on this state of affairs.
[12] I have determined in a number of previous inquiries that a person who is a member of the relevant native title claim group can provide evidence on community and social activities see e.g. Kathleen Parry &Ors/Falconbridge (Australia) Pty Ltd/Northern Territory DO02/48 – 49, unreported, 22 November 2002. There is no necessity for such a person to provide any details of their “status” or “authority” to provide such evidence. The only issue that the Tribunal needs to be concerned about is confined to those situations when it is suggested by another party that the evidence is either inaccurate or open to question. In such circumstances the issue is then simply one of weighing up the veracity of the evidence as distinct from the status of the deponent.
[13] Different legal considerations arise when ascribing weight to the evidence of a native title holder with respect to areas and sites that are said to be of particular significance. In that regard consideration must be had to the findings of R D Nicholson J in Little v Western Australia [2001] FCA 1706 and, in particular, His Honour’s observations with respect to the authority of a native title holder to give such evidence. When determining if a native title holder has the requisite authority to provide evidence about areas or sites said to be of particular significance a number of factors are potentially required to be assessed. I enumerated some of those factors in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002 at [28].
[14] In this matter, however, no party has seriously questioned Mr Dixon’s assertion that he is a joint Mingirringgi for Wuyaliya country and can speak for the Barri Barri Dreaming. Moreover, the native title party points out (OSC at para 31) that Mr Dixon is an applicant in the adjoining McArthur River native title application. In any event I have read the Garawa/Mugularrangu (Robinson River) Land Claim Report which was lodged by the native title party. The land and waters under claim in that matter was immediately to the east of the proposed tenement and comprised the Robinson River Station (PL 598). The Aboriginal Land Commissioner, Mr Justice Olney, commented at length about Mr Dixon’s status in relation to the relevant land and waters. In part His Honour said (6.2.7):
“The senior members of the group who gave evidence demonstrated an extensive knowledge of the geographical features of estates A, B + C and of the dreamings associated with those estates. Clearly some were more knowledgeable than others but in the Aboriginal way of things it was appropriate that the most senior members of the group (particularly Roy Dixon) should speak most about the country and about their spiritual affiliations with it.”
In addition Olney J found that (5.5.1) “the dominant spiritual feature of estate A is the Barribarri (star) dreaming which is believed to be a potent and ‘dangerous’ force throughout the estate and associated with the white gum tree (Gabula).” Accordingly I have proceeded on the assumption that Mr Dixon is a Mingirringgi and has the appropriate status to inform the Tribunal about the Barri Barri Dreaming.
Aboriginal Communities
[15] The only community referred to by the native title party (OSC at para 56) which is located within the proposed tenement, is Spring Creek Homestead. The other communities mentioned (Borroloola, Warby and Doolgarina) are estimated to be between 10 and 18 kilometres from the subject area. In addition, reference is also made to the Narwinbi Aboriginal Land Trust and the Garawa Aboriginal Land Trust. It is not clear from this short form description whether in fact there are any communities of native tile holders residing within the Land Trust Areas. It is not helpful for a native title party to simply refer to a form of land tenure, albeit a specifically aboriginal one, when inferentially implying that there are communities. If there are communities living on Land Trust Areas they should be identified. If they are not, then referring the Tribunal to particular parcels of land does not assist the process.
[16] The government party points out (GPCR at para 52) that while Spring Creek, Borroloola, Warby and Doolgarina are contended to be relevant communities “it is uncertain if either are, wholly or partially, a community of relevant native title claimants, the number of residents, and (with regard to Spring Creek, Warby and Doolgarina) whether they are seasonally or permanently occupied.” I am prepared to infer for the purposes of this inquiry that each of the communities mentioned are comprised (at least) in part of native title holders. In the case of Spring Creek Homestead, Mr Dixon specifically deposes (at para 18) that his nephews, Jimmy and Clive Mawson, live at the Homestead and engage (inter alia) in cattle mustering on Spring Creek Pastoral Lease. I infer from these statements that the Mawson’s are members of the native title claim group and that a number of members of the claim group reside on the proposed tenement on at least a semi-permanent basis.
Recorded or Registered Sites
[17] There are 6 recorded sites located within the boundaries of ELA 22244, and a further 7 recorded sites within close proximity of part of the western and northern boundaries. The sites located within the boundaries of the proposed tenement are set out below with the short form information as provided by the AAPA. If a site has a status between 10 and 40 it has been recorded. If a site is registered it is ascribed a status of 40 or more. A registered site is one that Aboriginal custodians have asked the Authority to protect, and the site has been fully documented and evaluated by the Authority. A higher status ascribed to a site by the AAPA (between 10 and 40) is an indication that the site has been subject to more intensive investigation by the Authority. In the instance of the six recorded sites within the proposed tenement, none has a status higher than 12. Those sites are as follows:
6164-12Malandja III – Burial site covered by rocks in rugged country to the west of Wearyan River - status 10;
6164-11Malanja Occupation Site – Group of sandstone boulders overlooking Malanja Creek to the south. Includes rock shelters in Bukulara Plateau nearby - status 12;
6164-10Gangadiji Shelter – Small rock shelter near base of sandstone outcrop on the west bank of Wearyan River 100 m north of confluence with Malanja Creek – status 12;
6164-9Gangdagiji – Stand of “Mabul” trees standing in the Wearyan River opposite the confluence of Malanja Creek - status 12;
6264-33Bardunbana – Site stands out from sandstone country bordering the river, approx to the south east from Spring Creek Station – status 10; and
6164-8Jiningina – Round rocky outcrop on edge of Bukulara Plateau, south of Spring Creek Station Homestead – status 10.
Previous Exploration Activity
[18] 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 1964.
[19] ELA 22244 has been the subject of exploration activity covering most of the central and southern sectors. This activity has predominantly been stream sediment sampling, with some limited rock chip and bulk sampling.
[20] Outlined below are details of previous mining and exploration tenements granted over the subject area:
Authority to Prospect – AP 1056, 1192, 1321, 2169, 3247
Exploration Licence – EL 1011, 1331, 1375, 2669, 2888, 3623, 4466, 4469, 4692, 4989, 4990, 7195, 7265, 7267, 7269, 7295, 7296, 7297, 8305, 9322, 9675
[21] There are no current mining tenements within the outer boundaries of ELA 22244.
[22] Existing mining tenements in the immediate vicinity include:
EL – 7294, 8134, 9058;
Substitute Exploration Licence (SEL) – 8630, 9779;
Mineral Lease Northern (MLN) - 1121, 1122, 1123, 1124, 1125, 1154;
Authorisation (A) – 22806; and
Authorisation Northern (AN) – 366, 455, 456, 457.
[23] In Mr Dixon’s Affidavit specific mention is made to the Merlin Mine which is located within a relatively short distance to the south of the proposed tenement. The Merlin Mine is a well known and established diamond mine operated by Rio Tinto (Ashton Mining Limited): see also the reference to this mine in Billy Coolibah & Ors on behalf of the Gurdanji and Garawa Peoples/Ashton Mining Ltd/Northern Territory DO01/60, unreported, Member Williamson, 15 July 2002 at [28]. It would appear from the Affidavit that there has been a degree of interaction between native title holders and those engaging in mining activities, including discussions about dreaming sites on the Matheson River (see paras 25 and 26 of Mr Dixon’s Affidavit).
Nature of the Proposed Exploration Activity
[24] The grantee party provided an extensive attachment to its Applications 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. Basically the grantee party set out in its “Exploration Philosophy” its focus on exploring for diamonds in Western Australia and the Northern Territory, particularly in areas previously explored, but which, through advances in technology, may now allow for “improved recoveries of smaller indicator mineral grains produced in deeply weathered landscapes.”
[25] In regard to its exploration programme for subsequent years, the grantee party said:
“Exploration following the first year will depend on results generated in the 1st 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
[26] 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.
[27] 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] (“Don Rory”). Deputy President Franklyn’s observations are particularly pertinent insofar as he was considering evidence relating to tenements in the general vicinity of ELA 22244 and as the grantee party in both matters was also Astro Mining NL. Likewise Deputy President Franklyn had before him affidavit material from Mr Dixon.
Land Claim Report
[28] The native title party sought to rely on the findings of Olney J in the Garawa/Mugularrangu (Robinson River) Land Claim Report.
[29] This Report was presented by His Honour to the then Minister for Aboriginal Affairs in March 1990. Olney J began hearing the evidence in this matter in May 1989. Part of the land and waters under claim now constitute the Garawa Aboriginal Land Trust which adjoins the eastern boundary of ELA 22244.
[30] The native title party contends that there is a substantial overlap between membership of the Spring Creek No. 4 native title claim group and those people found to be traditional owners by Olney J. Having read the Report I am satisfied that there is such an overlap, and, as I have already indicated, His Honour placed particular regard on the evidence given by Mr Roy Dixon. I found the Report particularly useful in this regard as it reinforced the status of Mr Dixon as a senior traditional owner and his undoubted ability to give evidence about sites of alleged significance connected with the Barribarri (star) dreaming.
[31] The native title party also contended that this Report would be of assistance to the Tribunal about evidence of sites in, and in the vicinity of the licence area, and their particular significance. I have no reason to doubt this assertion, however the Report is almost totally void of evidence about the location of particular sites. Instead His Honour’s Report is much more general and the Tribunal is also not assisted by the fact that although His Honour deals with 23 areas or estates which fall either wholly or partly within the claim area, there is no clear mapping in the Report to obtain an understanding of just what overlap there is with the proposed tenement. Suffice it to say, the generalised findings of His Honour with respect to sacred sites do not contain the geographic specificity to really assist the Tribunal.
[32] Reliance was also sought to be placed on findings by His Honour on the right to forage (at para 4.5.11). The particular passage from the Land Claim Report is as follows:
“Rights to forage are held unproblematically by local descent group members over the estates they are claiming. When seeking to take bush resources from estates other than that of their patriclan, people are ideally expected to seek permission from senior owners of the estates concerned. However, in practice the contemporary situation appears to be quite flexible in this regard. Indeed, by the statements of some claimants, there is little requirement for the seeking of permission at all. Certainly, some claimants indicate that people in the contemporary setting have rights to forage in the estates of their four grandparents. The only substantial restriction appears to be the one following from certain areas being subject to restricted access due to their totemic properties.”
[33] As the native title party points out, His Honour made no specific findings about the right to forage, other than of its existence. Certainly there is nothing in the Report about specific foraging activities that occur on the subject land. Leaving aside the fact that this Report is now more than a decade old, and that the focus of a section 237(a) is towards contemporary community and social activities, there is nothing said by Olney J about actual foraging within ELA 22244. In the absence of such findings, His Honour’s generalised finding does not assist the native title party.
[34] Finally, the native title party sought to rely (OSC at para 45) on material in the Report pointing to the continuous presence of the land claimants and their ancestors in and around the land claim area and a continuing active tradition of the claimants on and in relation to it. The difficulty with this contention is that the Land Claim Report concerns land and waters that fall outside the boundaries of the proposed tenement. Insofar as it is suggested that Olney J made findings about specific activities or sites on the subject area, then the Tribunal would need to be pointed to those findings. In reality there are none. I have no reason to doubt that this general area of the Northern Territory does have an ongoing and vibrant indigenous culture. Certainly the Land Claim Report is a testament to that fact. Nonetheless, the task of the Tribunal in an expedited procedure objection inquiry is of narrow focus. It is required to undertake a predictive risk assessment of the likelihood of the matters outlined in section 237. Generalised findings of the type relied on by the native title party, unless buttressed by specific primary evidence in relation to the land and waters of the proposed tenement, are of marginal utility. The issue is not whether there is a continuous presence of indigenous persons in the general vicinity of the proposed tenement, or the existence of ongoing traditions in this general area. The issue is whether there is a continuous presence on the subject area, whether there are ongoing activities on the proposed tenement and whether there are identified areas or sites of particular significance. The Land Claim Report does not deal at any length with these critical matters.
[35] This Report was considered (together with a 1984 Land Claim Report) by Deputy President Franklyn in Don Rory. Deputy President Franklyn made these observations (at [11]):
“The reports were made pursuant to the provisions of a different statute on evidence which may or may not now be presently acceptable having regard to the period that has elapsed since their making. It is not known by the Tribunal whether any of the conclusions therein were challenged and the Tribunal cannot assess the weight and value to be given today to evidence referred to therein in respect of lands outside those the subject of the reports. They do not, in any definitive way, identify or assist in identification of any site of particular significance within the meaning of section 237(b) on or in the vicinity of the ELA, do not assist in identifying relevant community or social activities carried on by the holders of native title likely to be directly interfered by the grant of the proposed licence and do not assist in determining whether the grant is likely to involve ‘major disturbance’ within the meaning of section 237(c).”
[36] As indicated, I have found the Report of some assistance in weighing up the evidence provided by Mr Dixon. On the whole, however, I agree with the above analysis of Deputy President Franklyn. The Report is now somewhat dated, concerns land and waters outside of the proposed tenement, and, most importantly of all, has been written in a generalised manner. The very nature of the Report is such that it contains no specific and identifiable material about the area of the proposed tenement or of specific traditional activities by the relevant native title holders carried out thereon.
Legal Principles
[37] 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.
[38] 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
[39] The evidence of community and social activities of native title holders is provided by Mr Dixon. Whilst Mr Dixon’s Affidavit is lengthy and contains quite some detail, I have experienced considerable difficulty in gaining a clear impression of some of the material outlined therein. This difficulty is mostly caused by the fact that the native title party, while annexing a map to the Affidavit, has marked hardly any of the multitude of places referred to. It has taken a considerable period of time to look at the various maps produced by the parties to try and gain an appreciation of the location of the places mentioned by Mr Dixon. In some cases these have been located, but many are not marked on any maps. In addition while some of the places are marked, there is a degree of ambiguity in the Affidavit about the location of the places referred to. For example, Mr Dixon often refers to fishing or other activity on watercourses. However, many of the watercourses he mentions, while intersecting the proposed tenement, are some distance in length. It is not at all clear whether in fact the fishing and other activities take place on that part of the creek or river within the subject area or further a field.
[40] Mr Dixon’s evidence about community and social activities indicates that he no longer visits the proposed area on a regular basis. No doubt if he is living in Katherine for kidney dialysis treatment this would have a large bearing on his physical ability to travel large distances and to be away from medical treatment for any length of time.
[41] Consequently when he refers to fishing at Bugajina on the Wearyan River (para 11b) it is in the past tense: “We used to get a big mob of fish there”. It is unclear if (assuming that this place is within the subject area) fishing still takes place, and if it does, whether relevant native title holders participate in this activity. Likewise when he says that a large group of people go fishing and hunting up Scrubby Creek it is also a reference to what happened in the past. He says: “I’ve seen them do it, when I was working for them. I’ve been stockman for them when I finished counting at Mallapunyah.” Having regard to Mr Dixon’s seniority it is unclear just what period of time has elapsed since he last engaged in this activity, and whether any members of the claim group still hunt and fish up Scrubby Creek in the manner described. A similar problem exists with his description of hunting around Poison Creek (para 13) – it is couched in the past tense (“The Mawson family, my nephews, used to use that land.”).
[42] Other activities outlined by Mr Dixon take place outside of the proposed tenement. Thus he points out that hunting and fishing take place at a lagoon called “Kunanda”, which he visited in 2001. However, his description of the location of Kunanda clearly identifies it as being located within the Garawa Aboriginal Land Trust (see para 11f and g).
[43] A final issue with Mr Dixon’s affidavit is that the bulk of the activities he describes are carried on by other persons. There is no indication that he actually participates in these activities, but instead he deposes as to what other people do. Thus he sets out at some length the hunting and fishing carried on by the Mawson family and his son (Reggie) south of Spring Creek Station Homestead. However as for his participation he says (at para 20): “Me and Les Hogan been through there, not so much now, only young fellas go there.”
[44] There are obvious problems with evidence of this type. However taking it on face value, it would appear that hunting and fishing takes place in the southern portion of the subject area by native title holders in the dry season (“They don’t go wet time”). It would appear that this activity takes place on weekends as “during the week they work on the Station mustering.” I take it from the evidence provided by Mr Dixon that hunting, fishing and gathering is practised by members of the native title claim group on a seasonal basis and then basically on weekends. It is geographically focused on the area south of Spring Creek Station Homestead, which Homestead itself is located in the far south of the subject area. In short, the evidence before the Tribunal indicates that the main focus of hunting and fishing is a relatively small part of the proposed tenement in the south-east.
[45] While it would be an unduly restrictive and artificial reading of Mr Dixon’s affidavit not to infer that hunting, fishing and gathering activities take place elsewhere on the proposed tenement, clearly it would appear that the focus of these activities is situated in a relatively small geographical area. As a matter of commonsense if members of the claim group live on Spring Creek Pastoral Lease and engage in mustering and related pastoral activities, they would travel around most, if not all, of the subject area on a fairly regular basis. It is unfortunate that the Tribunal has not been presented with any evidence from any of these various persons about what traditional activities they practise. The evidence of Mr Dixon whilst helpful does have the drawbacks I have previously referred to. In the absence of any primary evidence from any other native title holder, the Tribunal must make a predictive risk assessment based on that evidence which has been presented.
[46] The government party made the following submissions (GPCR at paras 59 and 60):
“59. As to Paragraph 59 f, the affidavit of Mr Dixon (at paragraphs 13, 14, and 18-22) would suggest that the hunting and foraging activities are mainly restricted to occasional weekend outings to a portion of the proposed licence area by members of the Mawson family during the dry season. At paragraph 18 in relation to the area south from the [Spring Creek] station, Mr Dixon suggests: ‘The mining company can go. There are motor car tracks there.” This would appear to be suggestion that the joint utilisation of the portion of the proposed licence area the subject of hunting and foraging activities would not be problematic.
60. As to the frequency of these claimed activities, it is uncertain from what Mr Dixon states ‘I show these people around my country’, whether these excursions are regular (and how so) or with other members of the claim group.”
[47] When assessing the likelihood of interference with community or social activities, the Tribunal undertakes a predictive risk assessment of whether the future act will involve a real chance or risk of interference. The interference referred to does not encompass trivial impacts but rather as French J held in Smith v Western Australia (2001) 108 FCR 442 (at 451) “must be substantial in its impact upon community or social activities.” His Honour also said that:
“in assessing the risk of direct interference the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed act is insubstantial. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”
[48] It is clear from the evidence presented that this general area has been the subject of quite extensive exploration and mining activity for some time. There is no suggestion that past or present mining or exploration activity has impacted negatively on any of the activities mentioned by Mr Dixon.
[49] The absence of any evidence of negative impacts from mining is also manifest from the tenor of Mr Dixon’s affidavit. He does not depose to any blanket opposition to exploration taking place. Rather he expresses the entirely understandable desire that (at para 30): “I show people around my country. I don’t want to see anything damaged.” Mr Dixon, in short is anxious to ensure that the proper protocols are put in place before exploration takes place, and that exploration is conducted in a culturally appropriate manner.
[50] It is important to bear in mind that Condition 6 of those Conditions imposed on explorers pursuant to section 24A of the Mining Act requires a compulsory on-site meeting on the licence area with registered native title claimants so that proposed exploration activities can be explained, and to enable concerns to be raised and ventilated. Condition 6(c) specifically requires an explorer to have regard to such representations, including representations dealing with access procedures to particular areas of land within the licence area. In short Condition 6 will enable Mr Dixon and other traditional owners to highlight those parts of the proposed tenement about which special care needs to be taken and to develop (if so required) appropriate access procedures.
[51] The proposed tenement comprises some 1445 square kilometres of land and water. It is, therefore, geographically extensive. The focus of community and social activities is that part of the subject area to the south of Spring Creek Station Homestead. This area comprises less than 20 per cent of the total area. Moreover such activities are basically restricted to the Dry Season, and then usually on weekends. As mentioned, other parts of the licence area are also accessed, but having regard to the large areas involved, on the basis of the material presented to the Tribunal, the intersection between traditional activities and the relevant land and waters is neither intensive nor regular.
[52] Having regard to the work program outlined by the grantee party in the documents before the Tribunal, it is difficult to conceive how the proposed exploration would have a substantial impact on the type of community and social activities outlined by Mr Dixon. Moreover, insofar as there may be a real risk or chance of interference with such activities during the Dry Season in the southern portion of the proposed tenement, the evidence leads to the conclusion that such interference would be limited, of short duration and not substantial. In any event the native title party can negotiate with the grantee party on appropriate access protocols so that exploration is conducted at such times, in such manner and in such locations as to further limit the risk of interference.
[53] A matter of central importance in this inquiry is the nature of the regulatory regime governing exploration in the Northern Territory. In previous inquiries I have pointed out that the regulatory regime contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities. Of relevance in this regard are the conditions imposed on grantees pursuant to section 24A of the Mining Act. 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. 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.”
In addition to these generic Conditions, there are also specific Conditions which are relevant in a predictive risk assessment of the likelihood of interference with community or social activities. Set out below are those Conditions pertinent to minimising environmental impacts:
“12.The licensee shall not bring firearms or traps onto the licence area and shall not take or kill any wildlife.
13.All structures, facilities, survey markings or other related infrastructure shall be of a temporary nature and shall be removed from the area at the completion of the exploration programme unless approved otherwise in writing by the Minister.
14.The Licensee shall not use fire, unless approved in writing by the Minister, except for the purposes of preparing food or heating water and appropriate steps shall be taken to prevent bush fires.
15.The Licensee shall not construct new vehicle tracks unless unavoidable. New tracks should be constructed at the minimum width possible to conduct the exploration programme, avoid long straight stretches, and be constructed with sufficient furrows to provide appropriate drainage.
16.The Licensee shall keep clearing and/or disturbance of vegetation to a minimum; with particular care taken in regard to preserving mature trees and vegetation along watercourses.
17.The Licensee shall take such steps as are reasonably practical to prevent the spread of noxious weeds, including the washing down of vehicles and removal of grass seeds before moving vehicles and equipment to a new area.
18.No sites or structures that may have historic significance shall be disturbed or interfered with in any way unless prior written approval has been given by the Minister.
19.The Licensee shall take such steps as are practical to minimise disturbance to the soil, rocks, rock formations, creeks and watercourses.
20.The Licensee shall take all precautions necessary to prevent contamination of underground and surface waters in the licence area.
21.Where artesian groundwater is encountered during drilling, the Licensee shall advise the Minister of its occurrence and protect the water from wastage, pollution, deterioration or undue depletion.”
There are other provisions in force in the Northern Territory which I have also previously outlined in other inquiries (in particular section 166), 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 – see also the comments of Deputy President Sumner in Robert Patrick Markham & Ors on behalf of the Wagiman, Dagoman and Jawoyn Peoples/Northern Territory/Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Woodridge DO02/51-52, unreported, 29 November 2002 at [53] – [54].
[54] The grantee party has not made any submissions 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. As previously noted, the regulatory regime governing exploration in the Northern Territory has been specifically drafted to ensure that, as far as possible, the risk of interference with community or social activities by a grantee party’s operations, is minimised to the greatest possible extent.
[55] In previous expedited procedure objection inquiries where a proposed tenement has been located within pastoral lease land, I have taken into account the fact that there are co-existing rights of non-native title holders which impact on a continual basis with the continued exercise of community and social activities. This is consistent with the findings of French J in Smith which I quoted above. Nonetheless the material presented in this inquiry does not lend itself to such an approach. It would seem that the pastoral activities in this area are carried out, in whole or part, by actual native title holders. Mr Dixon deposes that the Mawson family, members of whom are Junggayi, live at Spring Creek Station Homestead (see para 18 of his Affidavit). It is not the case then, of pastoral activities impacting, possibly in a negative fashion on the exercise of native title rights and interests. Rather it is a case of those engaging in pastoral activities also engaging in traditional practices. Accordingly for the purposes of assessing the likelihood of interference pursuant to section 237(a), I have not factored in pastoral activities as an issue rendering it less likely that the grant of the future act would result in interference of the relevant type.
[56] In conclusion, while I accept that community and social activities are carried on by the relevant native title holders, I am not satisfied on the material before the Tribunal, and having regard to the factors outlined above, that there is any real chance or likelihood that the grant of the proposed tenement would be likely to result in direct interference with those activities within the meaning of section 237(a). In reaching this conclusion the following factors have been decisive:
(a) the large area of the proposed tenement;
(b) the limited nature of the evidence about community and social activities;
(c) the geographic and seasonal nature of those activities;(d) the lack of any evidence of previous exploration or mining impacting on those activities; and
(e) the regulatory regime governing exploration in the Northern Territory.
Section 237(b) – Areas or sites of particular significance
[57] The native title party made extensive submissions about areas or sites said to be of particular significance with 31 particular sites claimed to have such status (OSC at para 68). In each case the area or site was referred to by Mr Dixon in his Affidavit. Yet, as the government party points out, the position of only one of these locations was indicated on the map attached to Mr Dixon’s Affidavit (GPCR at para 65).
[58] Whilst Mr Dixon provided extensive material on sites, with at least 31 being referred to, the particular significance of those areas or sites was, in most cases, not discussed. Leaving aside for the moment the authority of Mr Dixon to give evidence on these sites, and their location in relation to the proposed tenement, it is an essential pre-condition for the Tribunal sensibly making an assessment pursuant to section 237(b) that the native title party explain the particular significance of an area or site.
[59] The fact that an area or site is of importance to native title holders does not mean that it is a site of particular significance within the meaning of section 237(b). In Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 35 Carr J explained that “a relevant site is one that is of special or more than ordinary significance to native title holders in accordance with their traditions.” In order to properly determine that a site is of special or more than ordinary significance, the nature of its particular sacredness or importance needs to be explained. The mere fact that an area or site is mentioned by a native title holder does not, of itself, necessarily provide the factual basis for a finding of special significance to be made. Thus, in the context of Mr Dixon’s Affidavit, the fact that he has outlined numerous sites, does not of itself enable the Tribunal to make a proper assessment of significance. The fact that numerous places are mentioned does not bolster the case of a native title party. Obviously, if the Tribunal is presented with material demonstrating that there are numerous sites of significance, that may lay the foundation for finding that an area is “site rich”. It may be that the evidence before the Tribunal, both primary and secondary, is of such a nature that it is possible to find that the whole fabric of the particular country is imbued with a pervasive spirituality. The evidence in this inquiry does not lead to such a conclusion. Rather, the Tribunal has been presented with an Affidavit which mentions numerous places but with an unfortunate paucity of information about their sacredness.
[60] Part of the problem is that it is often difficult to ascertain the location of the named sites, and in some cases where it is possible to find the location of a site, it is clear that such sites are located outside the area of the proposed tenement. While it is not necessary that an area or site be located within the boundaries of a proposed tenement, nonetheless there must be a clear nexus between the granting of the exploration licence and the apprehended interference. Places mentioned by Mr Dixon which are located off-tenement include:
(a) Bulburr Creek (OSC at para 68r);
(b) Kunanda (Paperback Yard) (OSC at para 68s);
(c) Langki Langki (OSC at para 68bb);
(d) Walamandja (OSC at para 68cc);
(e) Kundiriji (OSC at para 68dd); and(f) Junmanyina (OSC at para 68ee).
[61] It may well be that a number of other places mentioned by Mr Dixon are also located off-site, however these six places can be clearly identified as not being located within ELA 22244. Despite the extent of the native title party’s submissions on this matter, it is not clear how there is any likelihood that any of these sites would be interfered with, even assuming for the purposes of the exercise that they are of particular significance. Some of these sites are, in fact, located quite some distance from the proposed tenement, and there is a patent lack of objective material which could found any finding of likely interference.
[62] A particular problem arises with respect to the Bardunbana site which Mr Dixon deposes (at para 17) is part of the Barri Barri Dreaming, but which he says is “inside the licence area”. The government party lodged with the Tribunal a copy of an Affidavit of Mr Dixon deposed on 8 March 2002 in relation to a different exploration licence (ELA 22101). ELA 22101 adjoins the proposed tenement in the south-west. In the Affidavit of 8 March 2002, Mr Dixon deposes that Bardunbana is located within ELA 22101. The government party made these submissions (GPCR at para 65(b)) “The reliability of Mr Dixon’s testimony, at least as to the whereabouts of these locations must be subject to some scrutiny.” This again highlights the type of problem presented in this inquiry. The native title party has not produced properly marked mapping, and this is compounded by the type of issue highlighted by the government party. While I have no reason to doubt the honesty of Mr Dixon or the genuineness of his Affidavit, plainly there is an issue about him deposing to the location of sites in relation to the boundaries of tenements. In this instance while I have not made any adverse inferences from this discrepancy, it needs to be appreciated by the representatives for the native title party that the location of places, especially places said to be of particular significance, is of utmost importance, and every effort needs to be made to provide to the Tribunal clearly marked maps. The Tribunal should not be placed in the position of trying to find named locations for the parties when they do not make the effort to perform this basic task. A party who fails to provide basic information on the location of named places runs the risk that, should their location be challenged by another party and it is not clear that the places are within the boundaries of a licence area, the Tribunal will infer that they are not within or close to the proposed tenement.
[63] A further three sites mentioned by Mr Dixon are burial sites (Dikalana, Yabalan and Jininyina). Mr Dixon does not claim that the first two burial sites are of particular significance, although as a matter of common sense it is clear that they are of cultural, personal and spiritual importance. Nonetheless in the absence of any suggestion that they have any particular sacred quality or that the native title holders view them in a special way, there is insufficient material to find that they are of special significance. In contradistinction Jininyina is said by Mr Dixon to be part of the star dreaming track, and, in addition, it is a recorded site. For the purposes of this assessment it will be dealt with separately.
[64] A number of other sites which are said to be of particular significance by the native title party are either not explained at all by Mr Dixon (other than mentioning them in a purely geographic sense), or in one instance, he specifically says that there is not a dreaming there. Thus at paragraph 10 of his Affidavit Mr Dixon says that when you follow Spring Creek down from Spring Creek Station you get to Biliwina, Morkuda, Kararana, Sugarbag and Najalulu. Mr Dixon does not claim that any of these places have any particular spiritual significance at all. There is no evidence before the Tribunal from any source suggesting that they are sacred sites or have any particular significance to native title holders. Yet despite the total absence of any such evidence the native title party submits (OSC at para 68 h – l) that these five mentioned places are of particular significance. Later in its Statement of Contentions (OSC at para 72c) the native title party concedes that it is open to find that these sites are of ordinary significance, together with Bang.arra, Kunanda and Barambaram. This concession is well made, as it patently clear that none of the abovementioned places are sites of particular significance.
[65] Most of the remaining sites and places set out in Mr Dixon’s Affidavit are said to be dreaming sites or part of a dreaming track. The fact that a site is part of a Dreaming track does not automatically result in a finding that it is a site of particular significance within the meaning of section 237(b). In Andy Andrews & Ors./Exploration & Resource Development Pty Ltd/Northern Territory DO01/123-125, unreported, 19 August 2002 I made the following observations (at [124]):
“while Dreaming Tracks are significant, not all Dreaming Tracks are of equal importance, and not all places along a Track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance.”
[66] In addition, before the Tribunal can properly assess the particular significance of a dreaming site or a dreaming track, it must have evidence before it, preferably from a properly authorised native title holder, which explains the particular sacredness of the area or site. It is of central importance that the Tribunal be presented with evidence from a native title holder who has the requisite standing and authority to speak for an area or site according to the law and customs of the native title claim group.
[67] Mr Dixon specifically deposed that he “could sign this affidavit, because I’m Mingirringgi for all the Barri Barri Dreaming there.” The ordinary and common sense interpretation of this clear statement is that Mr Dixon can speak for the Barri Barri or star dreaming sites. This statement is consistent with the finding of Olney J in the Garawa/Mugularrangu (Robinson River) Land Claim Report – see 5.5.1. I find that Mr Dixon has the requisite authority to speak on behalf of these sites. His Honour also found that in the area of Estates A, B and C, which is to the east of the proposed tenement: “There are a large number of sites in the three estates associated with the movement of the various dreaming beings throughout the area.” It is obvious from a reading of this Report that Mr Dixon played an important role, and it would not be sensible to assume that in giving evidence to this inquiry that he is not in a position as a senior and respected traditional owner, to provide to the Tribunal evidence about sites with both traditional authority and traditional knowledge. I have therefore proceeded on the assumption that he has the requisite authority to properly inform the Tribunal about the various dreaming tracks and sites.
[68] Mr Dixon makes passing reference to a Dog Dreaming which runs along Fletcher Creek (at para 6). The native title party (OSC at para 69) asserts that this is a place of particular significance. In response the government party contended (GPCR at para 65(e)): “There is no suggestion of the significance of the dreaming or that it is a place that must be avoided.” I agree with the government party; the mere naming of a dreaming track without more would not usually enable the Tribunal to make a finding that it is an area or site of particular significance. This result follows because the Tribunal has not been informed about its significance, except for the fact that it is a dreaming site. The absence of any explanation of the particular sacredness, importance, significance etc of this site ensures that a finding of particular significance cannot be made. The same problems arise with the other non Barri Barri dreaming places Mr Dixon mentions. For example (at para 11b) Mr Dixon deposes to a waterhole at Bugajina and says: “there must be a dreaming there too.” Apart from the fact that Mr Dixon does not depose what sort of Dreaming he is referring to, it is not clear from his statement that there is even, in fact, a Dreaming story attached to the waterhole. Again, Mr Dixon refers to Cold Weather Dreaming sites (paras 8 and 9), but does not explain their significance or otherwise give information about their sacred quality. The fact that these sites are mentioned without more does not provide a platform for a finding of particular significance.
[69] This leaves those Barri Barri (star) dreaming sites mentioned by Mr Dixon. The material before the Tribunal clearly discloses that Mr Dixon has the authority to speak on behalf of those sites. It is also the case that as Olney J found in the Garawa/Mugularrangu (Robinson River) Land Claim Report traditional owners believe that the star dreaming is a potent and dangerous force. This belief is quite explicitly outlined by Mr Dixon in his Affidavit (at paras 8 and 11). In addition, Mr Dixon outlines a number of star dreaming sites situated on and near to the proposed tenement. The government party made these submissions about the star dreaming sites (GPCR at paras 65 (f) – (h) and 89):
65 (f) It is clear that many of the locations named do not have an associated avoidance requirement. For example at paragraph 8, Jiminyina is indicated as being ‘right at the old station … on the south side of the homestead’. The Cold Wind dreaming as being ‘just up from the new station’. Jiminyina is suggested as a Barri Barri place. Yet the station homestead is a place of significant activity and (so the Objectors’ contentions suggest) population. The Mawson family live there (paragraph 18).
(g) Mr Dixon deposes to other significant non-traditional activity being carried out at ‘Barri Barri’ places. For example at paragraph 11d ‘that western side of the Spring Creek boundary with the Robinson River Land Trust Area is all Barri Barri country …. The Mawsons muster all that country and they go through that Barri Barri country too ….’
(h) There is no indication in Mr Dixon’s affidavit that the previous eighteen exploration licences granted over the proposed licence area have caused any interference with the locations identified.
89 the Government party contends that because of
(i) some question as to the reliability of Mr Dixon’s evidence;
(ii) doubt as to whether the named locations are within the boundaries of the proposed
licence area; and,
(iii) doubt as to whether a named location is in fact a site or area of significance
Mr Dixon’s affidavit does not establish that the sites or areas of significance are ‘so thick on the ground’ that the protective regime established by the Sacred Sites Act and second schedule conditions would not constitute adequate protection against interference.”
[70] Having regard to the number of star dreamings sites and the divergent information provided, for the purposes of this inquiry I am prepared to find that the cumulative effect of Mr Dixon’s evidence is that these are areas or sites of particular significance within the meaning of section 237(b). In making this finding, I am cognisant of the inadequate and, at times, contradictory nature of the evidence presented which is highlighted in the above quotes of the government party. Nonetheless, taking into account all of the material, and despite these manifest drawbacks, it would be artificial not to ascribe to these star dreaming areas the significance which is highlighted by Olney J and which is implicit (and sometimes explicit) in the Affidavit of Mr Dixon.
[71] However, having reached this point, the question is whether, having regard to all of the material before the Tribunal there is a real risk or chance that the granting of the exploration licence would result in interference with these areas or sites.
[72] In previous determinations I have given careful attention to the relevant provisions of the Northern Territory Aboriginal Sacred Sites Act (in particular ss 33-37). Moreover section 24 of the Mining Act provides that every exploration licence shall, unless expressly waived, varied or suspended by the Minister, be granted subject to a condition that the licensee will:
“(k) not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory, otherwise than in accordance with that law.”
[73] The above provisions, are, of course, directed at areas or sites processed under the abovementioned sacred sites legislation. However, there are also other provisions that deal with areas or sites in a broader sense. Condition 1 of the section 24A (Second Schedule) Conditions (set out previously) 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, as previously highlighted, 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 mechanism in Condition 25 allowing dissatisfied native title holders to complain to the Minister, and empowering the Minister to intervene.
[74] The cumulative effect of these (and other) provisions is to put in a 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 such interference, is a relevant and very important consideration.
[75] In this matter there is no evidence of any previous exploration or mining activity resulting in any interference with star dreaming sites. This is despite the fact that the proposed tenement is situated in an area which has been subjected to extensive (and ongoing) exploration and mining activity. Not only was no evidence presented of exploration or mining having a negative impact within the boundaries of the proposed tenement, but, in addition, there was no suggestion that any of the other star dreaming sites located outside of the proposed tenement have been interfered with. In needs to be borne in mind that Mr Dixon makes specific mention of the Merlin Mine which is located south of ELA 22244 and which, apparently, is located close to star dreaming sites (para 25). Mr Dixon deposes (at para 27) of the existence of a sacred cave within the Merlin Mine lease (Walamandja) which is associated with the Barramundi dreaming. It would appear that despite the existence of this mine, and the attendant high impact activities, no stated interference with sites (including the Barramundi dreaming site) has occurred.
[76] Whilst Mr Dixon mentions various star dreaming places, it is clear that certain of those dreaming places are of particular importance or sacredness. He singles out (for example) Wandabulunjudga (para 11a), Marawi (para 11d), Markaninyina (para 11e) as being places to be either avoided or that certain protocols have to be followed (e.g. prohibition of felling coolibah trees). I am satisfied, having regard to the regulatory regime in force in the Northern Territory, that appropriate protections exist to ensure that there is no reasonable likelihood that these areas or sites will be interfered with. In particular, the on site meeting (Condition 6) is an appropriate forum for access procedures (Condition 6(c)) to be agreed to. It is relevant to again point out that the proposed tenement covers a very large area, whilst the star dreaming sites mentioned by Mr Dixon are basically found south of Spring Creek Homestead, which is the extreme southern portion of the subject area. Having regard to the geographic clustering of these sites, as well as the fact that certain of these sites present the most “danger” to persons, it is open to assume that appropriate arrangements can be effected by native title holders to ensure that exploration activities can be conducted in a manner which would not result in interference with the star dreaming sites. In reaching this conclusion I have also applied the presumption of regularity to the grantee party.
[77] Mr Dixon does not depose that he opposes exploration taking place, or that exploration would of its very nature result in interference with sacred sites. A reading of his affidavit, in fact, leads to the opposite conclusion. He sets out that some of the star dreaming country is regularly accessed by the Mawson family when mustering cattle (para 11d), but that “they stay away from that main dreaming place Marawi”. I infer from this that travelling and utilising country that could be described as Barri Barri country is not necessarily of itself objectionable to native title holders. Clearly cattle mustering is not traditional activity, yet the carrying on of such activity on certain star dreaming country is not per se regarded as inappropriate. This is of relevance in the context whether the whole country is imbued with such spirituality that any utilisation of the country would be culturally inappropriate and thus amount to interference within the meaning of section 237(b). Clearly that is not the case, as I have previously found, it could not be said that ELA 22244 is “site rich” with the implications that would flow from such a finding.
[78] Although not an issue of any weight, I also note that there are no registered AAPA located within the boundaries of the proposed tenement. One would assume that if an area was of such importance, from a spiritual perspective, for native title holders, that there would have been a significant number of areas or sites both recorded and registered by the AAPA. This is especially so in this case as there are clusters of sites (especially to the south and north west) which have been the subject of AAPA investigation. Yet despite the large area of ELA 22244 there are comparatively few sites being investigated by the AAPA, and these are geographically centred in the area south of Spring Creek Homestead.
[79] In conclusion, whilst I am satisfied that:
(a) Mr Dixon has the requisite authority to provide evidence on the star dreaming sites, and generally; and
(b) the star dreaming sites, in total, are of particular significance within the meaning of section 237(b),
I find that the grant of ELA 22244 would not be likely to result in interference to those sites having regard to:
(a) the operation of the regulatory regime governing sacred sites in the Northern Territory;
(b) the application of the presumption of regularity to the grantee party;
(c) the absence of any evidence that previous exploration or mining activity has resulted in interference with such areas or sites;
(d) the absence of any blanket opposition to exploration by the native title party;
(e) the geographic location of the named sites, and the fact that appropriate access procedures can be negotiated which would ensure that the concerns expressed by Mr Dixon can be addressed; and
(f) the absence of evidence to the effect that the land and waters constituting the proposed tenement are “site rich”.
Section 237(c) – Major disturbance to land or waters
[80] 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 tenement, but were of a generic type received in most Northern Territory expedited procedure objection inquiries.
[81] 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.
[82] No evidence has been led about previous exploration activity resulting in any disturbance to the land and waters comprising ELA 22244.
[83] The 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 the grantee party more likely to result in major disturbance. The native title party only suggested (OSC at para 110) because there were many watercourses in the licence area, that this could result in major disturbance to land or waters. The fact that this large tract of land has a number of watercourses running through it is by no means exceptional. No evidence has been adduced that there are any special features of the watercourses or that there are any particularly sensitive environmental areas. Indeed the evidence would tend to suggest that the subject area is quite unexceptional from a geological and environmental perspective.
[84] The only other issue raised by the native title party was the suggestion that Roy 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. Leaving aside any question about the relevance of such a contention in the context of section 237(c), it is the case that the regulatory regime provides ample opportunities for Mr Dixon and other native title holders to raise issues such as these. Further, the regime gives to native title holders an ability to seek redress from the Executive Government (in the form of the Minister) if they are not satisfied with the grantee party’s response to their representations. The evidence does not disclose a likelihood that any cultural concerns of the type mentioned cannot be addressed.
[85] While I have taken into account that native title holders reside on the proposed tenement, there is no suggestion that previous exploration activity on and near the proposed tenement has in any manner affected their amenity or the pursuit of their occupational or cultural activities. The material submitted by the grantee party to the government party also does not disclose any proposed exploration activities of a type that could be said would pose a particular risk to those activities.
[86] 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 evidence that previous exploration activities has resulted in any major disturbance to the land and waters comprising the subject area;
(b) the absence of any evidence that the area contains environmental or geological features requiring special consideration;
(c) the regulatory regime in force in the Northern Territory governing disturbance to land and waters by explorers; and
(d) the application of the presumption of regularity to the grantee party.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22244 to Astro Mining NL is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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