Jacky Green and Les Hogan on behalf of the Yanyuwa, Kurdanji and Garawa Peoples/Ashton Mining Pty Ltd/Northern Territory
[2002] NNTTA 155
•1 August 2002
NATIONAL NATIVE TITLE TRIBUNAL
Jacky Green and Les Hogan on behalf of the Yanyuwa, Kurdanji and Garawa Peoples/Ashton Mining Pty Ltd/Northern Territory, [2002] NNTTA 155
(1 August 2002)
APPLICATION NO: DO01/97
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Jacky Green and Les Hogan on behalf of the Yanyuwa, Kurdanji and Garawa Peoples (Native Title Party)
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Ashton Mining Pty Ltd (Grantee Party)
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Northern Territory of Australia (Government Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: J. E. Stuckey-Clarke, Member
Place: Sydney
Date: 1 August 2002
Hearing dates: 5 February,2002, 19 March 2002, final directions made 16 May 2002.
Government Party: Mr Daniel Lavery, Solicitor, for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Jeff Wilkie, Manager Aboriginal Relations
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – grantee party’s intentions – presumption of regularity – likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation:
Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 109, 146, 151, 237
Cases:
C.N.Hardie/Western Australia/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO 00/92, Member Stuckey-Clarke 25 June 2001
William Risk and Kathleen Mary-Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso 15 April 2002
Smith v Western Australia [2001] FCA 19
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Cheinmora v Striker (1996) 142 ALR 21
Western Australia/Winnie McHenry WO 98/125, Deputy President Franklyn, 28 July 1999
Ward v Western Australia (1996) 69 FCR 208
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002
REASONS FOR DETERMINATION
Background
[1] On 30 May 2001 Northern Territory (“the government party”) gave notice pursuant to section 29 of the Native Title Act (“the Act”) that it proposed to grant Exploration Licence 22101 (“the proposed tenement”) to Ashton Mining Pty Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 184 blocks(605 sq km) (a block is approximately 2.9 square kilometres) within the Glyde locality. The area of the proposed tenement is comprised of the following leasehold:
(a)Northern Territory Portion 4412, being Crown Lease Perpetual 1289(known as Spring Creek);
(b)Pastoral Lease 687 (known as Spring Creek);
(c)Perpetual Pastoral Lease 1051(known as McArthur River).
[3] On 30 August 2001 a native title determination application was filed in the Federal Court (DC01/50) (D6051/01). The name of the application is “Spring Creek No.4”and the applicants are Jacky Green and Leslie Hogan on behalf of the Yanyuwa, Kurdanji and Garawa Peoples. The application was registered on 28 September 2001. The “Spring Creek No.4” application, which covers a geographical area of 2711.66km, encompasses the whole of the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (1 October 2001) after the section 29(4) notification day (30 May 2001). Jacky Green and Leslie Hogan are the named objectors. The Tribunal has previously determined that Form 4 objections in Group 4 have been properly accepted and that, while a Form 4 cannot be amended in a substantive manner after the statutory 4 month time limit has expired, there is no amendment of a Form 4 by the submission to the Tribunal of such matters as are contained in the contentions of the native title party in the matters before me: see the Decision of Member Sosso on whether the Tribunal has Jurisdiction to conduct an inquiry in Applications No. DO 01/3, DO 01/13, DO 01/19-23, unreported, 21 December 2001. I agree with and follow Member Sosso’s decision in those matters. I conclude that the Tribunal has jurisdiction to determine this inquiry.
[5] On 5 November 2001 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.
[6] On 12 October 2001 Deputy President Sumner made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. I issued further directions at various listing hearings, the last of which was convened on 19 April 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determining the matter on the papers. I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section l5l of the Act and on 16 May 2002 made a direction that the matter should proceed forthwith to determination on the papers.
The Evidence
Objector’s Evidence
[7] The native title party relies upon an affidavit of Mr Roy Dixon of 4 Callistemon St, Katherine in the Northern Territory of Australia affirmed 8 March 2002 which is set out in full below:
I, Roy Dixon of 4 Callistemon St, Katherine in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
I live in Katherine. I am here for the dialysis.
I am a member of the native title claim group in the Spring Creek 4 native title determination application(DC01/50), and I am member(sic) of the native title claim group in the Spring Creek 3 native title determination application (DC 01/51).
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.
The area of the application includes the area of ELA 22101. I have seen a map of the area of the ELA. Now produced and shown to me marked “RD 22101” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
You got all the deadfella in the cave on the west side of Bull Creek, on Scrubby Creek. It’s called Kikalana. There are bones there. There are burials, mostly on Bull Creek, and Jininyina where the Spring Creek Station Homestead is.
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.
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.
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.
The head of Scrubby Creek is all right.
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 Dreaming.
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.
Spring Creek is split up in two parts, 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.
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’ sisters Dulcie and Angeline. They always go there, dry time, getting fish.
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.
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.
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 near the licence area.
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.
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 Spring Creek lease they sold to the Merlin Mine.Wugujalki is east of Merlin Mine. It’s another Barri Barri place.
That Barri Barri, he’s Star. He comes out; whitefella calls him Min Min Light. If he hits you, you can’t feel it, but he’ll kill you. He 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. Barri Barri comes from the Spring Creek Station area. That’s their home, they live there.
Langki Langki is a Dreaming – Barri Barri. Langki Langki: he runs down Matheson Creek , and goes down to the Glyde River. Merling Mine is on the Matheson. That Diamond Mine mob – we’ve told them about this.
We need to look for those places on the ground. I show people around my country. I don’t want to see anything damaged.
[8] The native title party submitted the following further evidentiary material to the Tribunal:
(a)The Garawa/Mugularrangu (Nicholson River)Land Claim Report dated 14 March 1990(“the Land Claim Report”), of the Commissioner appointed under the Aboriginal Land Rights(Northern Territory) Act 1976(Cth) (“the Land Rights Act”)
(b)A document entitled “Rights conferred under exploration licence”.
(c)A document entitled “Analysis of Legislation dealing with significant areas and sites”.
(d)Affidavit of Mark Frederick Foy and Annexure MFFI
(e)The Transcript of the evidence of Mark Frederick Foy given on 4 December 2001 (the Foy transcript). This transcript is relied on as a statement of expert opinion.
(f)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001. This affidavit is relied upon as a statement of expert opinion.
(g)Information and map provided by the Aboriginal Areas Protection Authority in relation to Aboriginal Sacred Sites within the area of the proposed tenement (‘the AAPA sites information and AAPA map”).
(h)Transcript of evidence of Jeff Stead.
The Government Party’s Evidence
[9] The government party submitted its particulars as well as the following evidentiary material to the Tribunal:
(a)A topographical map marked with the area of the proposed tenement , location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”), tenure details and any known Aboriginal communities;
(b)A schedule of details of the sacred sites referred to;
(c)Mining Tenement documents, including the licence application and details of any current mining tenement and prior mining tenements granted over the same area;
(d)A Revised Prior Tenement Schedule, prior exploration licence map, previous exploration activity map and schedule and existing title holder map and schedule.
(e)The Government advised that it also intends to rely on its Standard Exhibits Documentation as particularised in its Contentions.
The evidence in the materials in paragraphs c and d above indicated that there have been exploration activities conducted on the area of the proposed tenement from 1972-2002, that the activities covered virtually all of the proposed tenement and that it included sediment sampling and TAB(rotary airblast) drilling: see government party’s contentions in reply at [79]-[82].
The Grantee Party’s Evidence
[10] The grantee party led no evidence and advised the Tribunal on 13 March 2002 that it would rely upon the contentions of the government party.
The Parties’ Contentions
[11] The government and native title parties filed extensive contentions in the proceedings. I have considered the contentions in detail and will refer to them with particularity where appropriate.
General Legal Principles
[12] Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are holders… of the native title in relation to the waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[13] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.
Reasoning
Section 237(a) – Interference with carrying on of community or social activities
[14] I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.
[15] The native title party in its Contentions at [57]-[60] contends that:
[57]There are several communities in or in the vicinity of the licence area which are occupied by members of the native title claim group. They include;
a. The area held by the Garawa Aboriginal Land Trust is less than 15 kilometres east of the licence area.
b. Spring Creek Community is approximately 3 kms north east of the licence area..
c. Borroloola is approximately 40 kilometres to the north of the licence area.
[58] There are several roads inside, and in the vicinity of the licence area that are frequently used by the members of the claim group to access the communities and areas, including the licence area, for the purpose of carrying on community and social activities.
a.Spring Creek Road ends about 3 kilometres north east of the licence area;
[59] There are several water bodies and other areas of environmental significance in and around the licence area. These are used for fishing, sources of drinking water and may sustain and be part of areas and sites of significance. They include,
a. Several tributaries of the Wearyan River, including Spring Creek,flow through the licence area.
b. Matheson Creek and several tributaries of it and the Glyde River flow through the licence area.
[60] The community or social activities of the Native Title Claim group include:
(a) Foraging [Land Claim Report [5.5], [4.5.11]]
(b) Hunting, fishing, and gathering of bush tucker:
(i) the Mawson family, who are members of the native title claim group, go up Scrubby Creek hunting and fishing[affidavit of Roy Dixon [8]].The top of Scrubby Creek extends on to the licence area.
(ii) Roy Dixon and Les Hogan have been through the part of Spring Creek pastoral lease south of Spring Creek Homestead to the boundary with the Merlin Mine lease. That area includes part of the licence area [affidavit of Roy Dixon [12]-[13]c. Quiet enjoyment and camping
(iii). The Junggayi who live at Spring Creek – Jimmy Mawson, Ian Mawson, Clive Mawson – as well as their mother Dulcie(who is Les Hogan’s sister), and her sister Angeline, and Roy Dixon’s son, Reggie Dixon, go to that area in the dry time, hunting and getting bream and turtle. They go every weekend, walking or on horseback. They know that country. They grew up there.[affidavit of Roy Dixon [12]-[15]
(d)The community of native title holders actively look after country, by visiting and maintaining sites[affidavit of Roy Dixon [10]-[11]]. This activity is conducted by individuals with specific responsibility for that area or the sites.
[16] The government party in its contentions at [8] and in reply at [52]-[54] said:
[8] The Government party contends that the grant of the proposed licence is not likely to interfere directly with the carrying on of community or social activities of the persons who are holders of native title in relation to the land for the following reasons:
(a) no Aboriginal community is located on the proposed licence area; and
(b) Spring Creek is located approximately 3 kilometres northeast and Borroloola approximately 40 kilometres north of the proposed licence area.
[52] Spring Creek and Borroloola are contended in Paragraph 57 of the Objectors’ contentions as relevant communities, but 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) whether they are seasonally or permanently occupied. Additionally, they are 20 and 50 kilometres respectively distant from the proposed EL area. Mr Dixon, the deponent in this matter, resides at neither but in Katherine.
[53] The Garawa Aboriginal Land Trust is an area of land, not a community. It(the large area shaded yellow on the right of the Government Party’s primary map) is merely a form of tenure. It lies over ten kilometres to the east of the proposed licence area. The area in question is of the order of 3500 square kilometres. No settlement is indicated as being on the Land Trust area. The existence and proximity of a Land Trust itself is not probative of the existence of community or social activities of the alleged native title holders within the affected area.
[54] There is an issue of relevant and also of particularity with Paragraph 58. First, the paragraph suggests there are no roads within the proposed licence area. Second, if the Objector(sic) is asking the Tribunal to conclude that the potential use of roads and track not in the proposed licence area is an interference directly with the carrying on of the claimed activities, it is an insubstantial impact, bordering on the trivial.
[17] I find the government party’s contentions persuasive in relation to there being no aboriginal community on the tenement at [8] and in relation to the matters dealt with in [53] and [54].
[18] Further, I note that Mr Dixon does not live on or near the tenement nor does he depose to the carrying out of any community and social activities on the proposed tenement at the present time. However, he does give direct evidence of contemporary community or social activities on the proposed tenement in [8] where he says, as he does at the end of every affidavit I have read affirmed by him, “I show my people around my country”. Whilst I accept this evidence (and Mr Dixon’s authority to speak for the native title claim group: see [40] of the native title party’s contentions), it lacks particularity in that it fails to indicate how often and with whom and by whom, apart from Mr Dixon, this activity is conducted. However, he gives sufficiently particularised evidence of foraging and hunting, fishing and gathering of bush tucker by relatives of his and people whom I accept are likely to be members of the native title claim group. The Land Claim Report is also relied upon by the native title party but it is a Report that is 12 years old, so that even accepting that there is a direct correlation between the traditional owners identified in it and the native title claim group, at its highest the Land Claim Report is only evidence of activities being carried out on the tenement at that time in the past. Nevertheless, to the extent that it is relevant, the Land Claim Report supports Mr Dixon’s evidence and his authority to speak for the claim group.
[19] I note also that the government party has led evidence of previous exploration activity which is set out at [79-82] of the government party’s contentions in reply. In particular, it is pointed out that exploration activities undertaken in the area have included stream sediment sampling and some diamond drilling.
[20] The statutory regime operating in the Northern Territory is a comprehensive one aimed at preventing interference with community or social activities of native title holders by explorers. Exploration licences are granted in the Northern Territory subject to statutory conditions made pursuant to section 24 A Mining Act. Pertinently the first two conditions are:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular, by ameliorating:
(a)any interference directly with the carrying on of community or social activities of registered native title claimants or holders;
(b)any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out its activities in such a way as to minimise the disturbance or the environment of the licence area, in particular by minimising:
(a) interference with the use of the land by other persons;
(b) the disturbance of flora, fauna or other natural resources;
(c) pollution, including soil, water and atmospheric pollution;
(d) the incidence and effects of soil erosion.”
[21] There are a further 17 conditions aimed at prohibiting a range of activities which might directly interfere with community or social activities of native title holders. In particular, Cl. 18 requires the licensee to convene a meeting with registered native title holders prior to the commencement of exploration activities and have regard to any aspect of the proposed exploration activities which raise concerns. As Member Sosso said in Kathleen Parry, Albert Myoung, Paddy Huddleston and Marjorie Foster/Northern Territory/Troy Resources NL DO 01/85, unreported, 12 June 2002, at [43] referring to the s.24A Mining Act conditions:
“These are not the only relevant provisions in force in the Northern Territory, but they highlight the fact that there is in place a regime aimed at preventing ( as far as practicable) disturbance to community or social activities by explorers. Obviously the existence of this regime does not render a section 237(a) inquiry unnecessary, and it is always possible on the basis of the evidence presented to an inquiry that the Tribunal may find that there is a likelihood of interference pursuant to s.237(a). Nevertheless, it is clear that the combination of the various statutory provisions and conditions in the Northern Territory goes quite some way in ensuring that exploration activity will, in many instances, not result or not be likely to result, in interference to community or social activities.”
[22] In conclusion, therefore, even where community and social activities are evidenced as being presently conducted by the native title claim group on the proposed tenement as I find to be the case in this matter, it is necessary for the native title party to show that the statutory regime will not prove a sufficient protection from direct interference. In considering the evidence before me of contemporary community and social activities on the tenement, and taking into account that no aboriginal community is situated on the tenement, I am obliged to take into account the presumption of regularity in favour of the grantee and the comprehensive protections provided by the statutory regime in place in the Northern Territory. In those circumstances, I conclude that the community or social activities evidenced before me are not likely to be directly interfered with by the grant of the proposed tenement, taking the common sense approach to the evidence and applying the test explained by French J. in Smith v. Western Australia[2001]FCA 19 and therefore hold that no direct interference within the meaning of s.237(a) of the Act is likely.
Section 237(b) – Sites of particular significance.
[23] In Moses Silver at [86]-[107], Member Sosso analysed legal issues raised by the contentions of the government and native title parties in respect of the general legal principles applicable to and the proper construction of section 237(b) which were also raised in similar contentions in this matter. I agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.
[24] So far as section 237(b) is concerned, the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the areas or sites must be “capable of identification” and the nature of their significance to the holders of native title must be explained to the Tribunal: see Western Australia/Winnie McHenry WO 98/125, 28 July 1999. It will usually be the case that evidence relating to particular significance will be peculiarly within the knowledge of the native title party and that, absent documentary evidence, such as the Sacred Sites records, evidence of location and identification will also be peculiarly within the knowledge of the native title party so that failure to produce such evidence may lead to the drawing of an unfavourable inference on the issue taking the common sense approach to evidence: see Carr J. in Ward v. Western Australia(1996) 69 FCR 208 at [217].
[25] The native title party relies upon Mr Dixon’s affidavit and the map annexed thereto. I note that of the various areas referred to in his affidavit only Head of Scrubby Creek, Spring Creek, Matheson Creek and Malandja has been marked on the map by him as being actually located on the proposed tenement.
[26] At [69] of the Objectors’ contentions it is contended:
[69] There are areas or sites of particular significance that the grant of the exploration licence is likely to interfere with: k[affidavit of Roy Dixon [5]].
a.Dikalana, a burial site west of Bull Creek, on Scrubby Creek.
b.Jininyina is at the old Spring Creek Station Homestead, outside the licence area[affidavit of Roy Dixon[6]].
c.A site where Wurrarrawala(Cold Weather Dreaming) mixes up with the Barri Barri Dreaming on Spring Creek south of the Spring Creek Homestead[affidavit of Roy Dixon[6]].
d.A cave with Wurrarrawala (Cold Weather Dreaming)right at the old Spring Creek Station[affidavit of Roy Dixon[7]].
e.Bardunbana is a little round hill, a rock, a river wallaby, on the licence area[affidavit of Roy Dixon[10]].
f.Marlarana is on the Wearyan River south from Spring Creek Station. It is near the licence area[affidavit of Roy Dixon[10]].
g.Kunbukuku is on the Wearyan River south from Spring Creek Station[affidavit of Roy Dixon [10]].
h.Kandakiji is west of the pocket at the top of the Wearyan River, just near the licence area[affidavit of Roy Dixon [16]].
i.Malandja is south of the pocket, on the Wearyan[affidavit of Roy Dixon [17]].
j.Wugujalki is south of the pocket on the Wearyan River, on the Wearyan still, near the boundary of the Merlin Mine lease with the Spring Creek pastoral lease[affidavit of Roy Dixon [18]]
k.Langki Langki is a Dreaming that runs down the Matheson Creek though(sic) the licence area[affidavit of Roy Dixon [20]].
[27] It should be noted that of that list, only (a) Dikalana, (e) Badunbana, (i) Malandja and (k)Langki Langki are identified by Mr Dixon as being on the proposed tenement either name or location on his map. Only (a) Dikalana , (i) Malandja and (k) Langki Langki are identifiable in this way on Mr Dixon’s map. However, the native title party also relies upon the AAPA map and sites information which shows that (e) Badunbana, site 6264-33, is not on the area of the proposed tenement but that (i) Malandja is recorded as two sites on the tenement, namely site nos. 6164-11 and 12. The Sites Register contains one registered site, Bulbialwarna, site no. 6l64-2, located at the junction of the Glyde River and Amelia Creek which is not located on or particularly close to the tenement, but that site is not referred to by Mr Dixon. No evidence has been adduced as to any circumstance or fact which would require me to consider direct interference with sites not located on the area of the proposed tenement and I do not propose to do so.
[28] The native title party also relies upon the affidavit of Jeffrey Stead who deposes to his belief that it is unlikely that the AAPA Register for any particular area will be accurate and complete for all sites of areas of significance within it. Mr Stead also gave oral evidence at the hearing on 3 December 2001. I refer to my analysis of Mr Stead’s evidence in Roy Dixon/Plenty River Corp. Ltd/Northern Territory, DO 01/51 at [24-25] and note that Mr Stead advised the Tribunal that he was not aware of any inaccuracies in the geographical description of any sites referred to in the AAPA sites information and map provided to the Tribunal and relied upon by the native title party in these proceedings.
[29] In its Contentions in Reply at [63], the government party contends
[63] Specifically, at paragraph 64 of the Objectors’ contentions reference is made to evidence and contentions of the objectors:
(a)It is only “Bardunbana” …and “Marlarana”…that are contended as being on or near the licence area.
(b)Only the location of Marlarana is indicated on the map attached to the affidavit of Mr Dixon.
(c)Mr Dixon does not depose to these locations being of any particular significance…There is no indication in his affidavit that Mr Dixon believes “Barri Barri” places must be completely avoided. In fact it would appear from the deposed activities of the Mawson family…that hunting and fishing occurs at “Barri Barri” places.
(d)There is no indication Mr Dixon’s affidavit(sic)that the previous 13 exploration licences granted over the proposed licence area has caused any interference with the locations identified.…….
[30] In this matter, the Tribunal has been presented with contentions by the native title party that there are a variety sites of particular significance within the meaning of s.237(b) but only with reliable evidence as to the location on the proposed tenement of three sites, namely Dikalana(located on Scrubby Creek), the Malandja sites and the Langki Langki Dreaming area(located on the Matheson River ). The issue then arises as to whether the sites have particular significance to the holders of native title. I find that such significance is evidenced by the materials before me, especially the affidavit of Mr Dixon at [5] and [10]. Further, the location of the Malandja sites is confirmed by the AAPA map and the fact that those sites are recorded goes some way towards establishing their particular significance. I accept that the particular significance to the native title claim group for which Mr Dixon is authorised to speak is established on the evidence before me in relation to Dikalana, the Malandja sites and the Langki Langki Dreaming area on the Matheson River within the proposed tenement.
[31] However, that is not the end of the matter. The Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective; indeed the evidence is to the contrary.
[32] In conclusion therefore, in light of the evidence before me, the Northern Territory statutory regime for the protection of sacred sites, and applying the presumption of regularity, I find that it is not likely that the any areas or sites of particular significance which exists on the proposed tenement will be interfered with by the proposed grant.
Section 237(c) - Major Disturbance to land or waters
[33] As to the general legal principles applicable to the proper construction of this section, I concur in and adopt the general legal principles as set out by Member Sosso in Moses Silver at [135-140] and note the effect of the Mining Amendment Act No.44 of 2001 in repealing s.166(1)(a) of the Mining Act and inserting s.161(1A):see Deputy President Franklyn’s discussion of this legislation in Angus Riley and May Foster on behalf of the Wirntiku, Milwayijarra and Ngapa Groups, DO 01/70 and 71,unreported,17 April 2002 at [19].
[34] The government party contended at [12]-[20] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party said at [12]-[17]:
12. In relation to s.237(c), the Government party adopts the legal principles as stated by the Tribunal in the Moses Silver Determination at paragraphs 135 to 140, subject to the application of the Mining Management Act 2001(the “MM Act”).
13. The MM Act came into operation on 1 January 2002. Environmental and safety issues have been consolidated under this new legislation, with the effect that operational management of the Northern Territory’s Substantial Disturbance regime has been removed from the Mining Act and placed under this new Act.
14. It is a condition of an exploration licence granted post-1 January 2002 that the grantee hold an Authorisation granted pursuant to s.36 of the MM Act “before carrying out on the licence area any exploration, operations or works involving substantial disturbance.”(s.166(1A) Mining Act.)
15. An application for Authorisation under s.35 MM Act requires the proposal and approval of a Mining Management Plan(“MMP”). An MMP must include:
(a) a description of the activity to be carried out;
(b) safety, health and environmental issues relevant to the activity;(c) the management system to be implemented at the site;
(d) a plan and costing of closure activities.(s.40 MM Act.)
16 An Authorisation is subject to the condition that the operator complies with the approved MMP(s.37(2)(a)) and any additional conditions imposed(s.37(2)(b) and s.37(3)), including, usually, the requirement to lodge a security.(s.37(3)(c)).
17. Section 35 creates the offence of carrying out of activities without an Authorisation, the penalty for which…could be a fine of $25,000 for a natural person and [$125,000] for a body- corporate offender….
[35] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[36] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)
[37] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.
[38] There is also before me in this matter evidence relied on by the government party in relation to numerous exploration licences having been granted over the area of the tenement from 1985-1999, that these activities covered virtually all of the proposed tenement and that the activity has included sediment sampling and RAB(rotary airblast) drilling but no evidence that such activity has caused any deleterious effect to the land has been presented to me.
[39] Having concluded like Member Sosso did in Moses Silver, even before the regime was further strengthened by the Mining Management Act provisions, that the government party standard exhibit before me “highlights that the Northern Territory has in place a well advanced, integrated and proactive legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process”, and taking into account that the area of the proposed tenement is less than one eighth of the claim area and having considered the evidence of likely previous exploration activity, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to such land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22101 to Ashton Mining Ltd is an act which attracts the expedited procedure under the Native Title Act 1993(Cth).
J.E. Stuckey-Clarke
Member
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