Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster/Buchanan Exploration Pty Ltd/Northern Territory
[2002] NNTTA 221
•21 October 2002
NATIONAL NATIVE TITLE TRIBUNAL
Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster/Buchanan Exploration Pty Ltd/Northern Territory, [2002] NNTTA 221 (21 October 2002)
APPLICATION NO: DO 01/139
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
KATHLEEN PARRY, ALBERT MYOUNG, PADDY HUDDLESTONE, AND MARJORIE FOSTER (native title party)
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BUCHANAN EXPLORATION PTY LTD (grantee party)
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NORTHERN TERRITORY OF AUSTRALIA (government party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 21 October 2002
Hearing dates: 27 May and 26 September 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 Athol James
Catchwords: Native title – future act – proposed grant of exploration licence – jurisdiction – implications of Ward v WA – underlying Crown Lease Perpetual tenures - expedited procedure objection application - parties contentions – nature of authorisation required by a native title holder providing evidence - Aboriginal communities – recorded or registered sites – previous exploration/mining activity – legal principles – act directly interferes with community or social activities – objection upheld.
Legislation: Acts Interpretation Act 1901 (Cth) s 36
Mining Act (NT) s 24A
Native Title Act 1993 (Cth) ss 29, 32, 44H, 61, 62A, 66B, 151, 237, 251B
Northern Territory Land Corporation Act (NT) ss 6, 15
Cases: Albert Little & Ors on behalf of the Badimia People/Western Australia/Giralia Resources NL WO01/183, unreported, Deputy President Sumner, 8 March 2002
Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported, Deputy President Franklyn, 17 April 2002
Daniel v Western Australia [2002] FCA 1147
Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002
Evelyn Gilla & Ors on behalf of the Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd WO01/174, unreported, Deputy President Sumner, 27 March 2002
Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002
Kevin Peter Walley & Ors/Western Australia/Giralia Resources NL WO01/179-180, unreported, Deputy President Sumner, 8 March 2002
Leone Velickovic/Western Australia/Royce William Allen WO00/184, unreported, Deputy President Franklyn, 10 November 2000
Little v Western Australia [2001] FCA 1706
May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, Member Sosso, 5 June 2002
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002
Moran v Minister for Land and Water Conservation (1999) 5 AILR 61 [1999] FCA 1637
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002
Robin Boddington & Ors on behalf of the Wajarri Elders/Western Australia/Hampton Hill Mining NL WO01/486, unreported, Deputy President Sumner, 11 April 2002.
Smith v Western Australia (2001) 108 FCR 442
Victor Groves & Ors/Exploration & Resource Development Pty Ltd/Northern Territory DO01/127-129, unreported, Member Sosso, 13 September 2002
Violet Drury & Ors on behalf of the Nanda People/Western Australia/Giralia Resources NL WO00/93, unreported, Deputy President Franklyn, 18 May 2001
Walley v Western Australia (1996) 67 FCR 366
Ward v Northern Territory [2002] FCA 171
Western Australia v Smith (2000) 163 FLR 32
Western Australia v Ward (2002) 191 ALR 1 [2002] HCA 28
REASONS FOR DETERMINATION
Background
Introduction
[1] On 8 August 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 22738 (“the proposed tenement”) to Buchanan Exploration 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 162 blocks (approximately 539 square kilometres) and is comprised of the following leasehold land:
Crown Lease Perpetual (CLP) 435, which is known as “Fish River”, and
Crown Lease Perpetual (CLP) 815, which is known as “Daly River”.
Jurisdictional Issue
[3] The proposed tenement is, accordingly, located wholly within parcels of land which are Crown Lease Perpetual. The fact that the underlying tenure is Crown Lease Perpetual is, potentially, of some significance. In Western Australia v Ward (2002) 191 ALR 1 [2002] HCA 28 the High Court specifically considered certain Crown Lease Perpetual land and Gleeson CJ, Gaudron, Gummow and Hayne JJ made the following finding (at 125/[439]):
“The same conclusion respecting CLP 581 should be reached as that with respect to SPL 475. That is to say, there was a conferral of exclusive possession with the consequence that so much of native title rights and interests as had survived the loss of the right to be asked permission to use or have access to the land, and consequent upon the preceding pastoral leases, was, subject to the operation of the RDA, extinguished.”
[4] In this matter the parties had lodged their contentions prior to the High Court handing down Western Australia v Ward. Consequently none of the parties had specifically dealt with the issue of whether the Tribunal had jurisdiction to proceed with the inquiry and make a determination as to whether the expedited procedure was attracted. If native title was extinguished there would be no future act, and accordingly the Tribunal would have no legal basis to proceed.
[5] Prior to reaching a determination I caused a search to be made of both of the above parcels of land to determine if they were in fact Crown Lease Perpetual tenures, and secondly, to ascertain when the relevant grants were made (or, at least, the most recent grants). That search disclosed that both parcels were issued after the commencement of the Racial Discrimination Act 1975 but prior to the commencement of the Native Title Act 1993.
[6] Having been enlivened to the situation I directed that the results of this search be disclosed to the parties and I convened a Listings Hearing on 26 September 2002 to provide an opportunity for the parties to address the Tribunal on the matter.
[7] If the Tribunal, whether by formal submission of the parties or by its own initiative, is alerted to a state of affairs that seriously calls into question its jurisdiction, then in appropriate cases it must deal with the issue. Ever since the decision of Carr J in Walley v Western Australia (1996) 67 FCR 366, the Tribunal has operated on the principle that it is proper and necessary for it to determine whether there are any jurisdictional facts, which constitute a condition precedent for the Tribunal to proceed in any given inquiry. As a general principle, there is no onus on the Tribunal to ascertain, in the absence of the parties making submissions, whether it has jurisdiction. Nonetheless, when the Tribunal has before it material suggests that it is or may be without jurisdiction, irrespective of whether any party has raised that issue or not, the Tribunal must deal with the issue in an appropriate fashion. It is not open to the Tribunal to ignore the issue and to assume that it has jurisdiction – see Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 at 185 - 186.
[8] At the 26 September 2002 Listings Hearing Mr Frith, on behalf of the native title party, submitted that the Tribunal did have the requisite jurisdiction to proceed. Mr Frith submitted that the relevant tenures were granted post 1975 and that, accordingly, the Racial Discrimination Act 1975 was relevant to the issue of extinguishment. Further, he referred to the discussion of that legislation on Crown Leases in Perpetuity by the High Court in Ward, especially at paragraphs [440] – [460] of the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ. Mr Frith did point out that one of the CLP’s was held by the Northern Territory Land Corporation and suggested that this was a Crown to Crown grant from which certain consequences flowed. The only point that needs to be made about this submission is that section 6(1) of the Northern Territory Land Corporation Act specifically provides: “The Corporation is not an Authority or Instrumentality of the Crown and is not, for the purposes of the Interpretation Act, a statutory corporation.” If this submission had been challenged an issue which may have arisen would have been the legal implications of section 6.
[9] It is not necessary for present purposes to outline at length the thrust of Mr Frith’s submissions, as Mr Lavery, on behalf of the government party, indicated that the Northern Territory did not wish to make a jurisdictional challenge. The reason for this was essentially not that the government party necessarily conceded the points made by Mr Frith, but that it did not have the resources to carry out the tenure searches and the consequent investigations to determine if there had been prior extinguishing acts.
[10] Whilst the grantee party did not appear in person, the grantee party had spoken to the government party prior to the Listings Hearing and was informed of the tenor of the government party’s submissions. Mr Lavery informed the Tribunal that the grantee party accepted the submissions of the government party.
[11] Accordingly, the Tribunal was presented with comprehensive submissions from the native title party that the Tribunal had jurisdiction and jurisdiction was not challenged by either the government or grantee parties. Furthermore, the submissions made by Mr Frith had some weight, and were not manifestly without substance. In these circumstances it is not incumbent on the Tribunal to go any further. The parties were provided with an opportunity to deal with the jurisdictional issue. No party determined to challenge the jurisdiction of the Tribunal to proceed. It is not manifestly clear that the Tribunal does not have jurisdiction. Prima facie on the material before me, it is open for me to infer that I have the necessary legal basis for proceeding with the inquiry and making a determination.
Native Title Determination Application and Expedited Procedure Objection Application
[12] On 24 April 2001 a native title determination application was filed with the Federal Court (D6028/01). The name given to this application is “Fish River”, and the Applicant is jointly Kathleen Parry, Albert Myoung, Paddy Huddleston and Marjorie Foster. The application was entered on the Register of Native Title Claims on 24 May 2001. The Fish River application covers the whole of the proposed tenement.
[13] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 10 December 2001. Technically this was more than four months after
the section 29(4) notification day (8 August 2001) – section 32(3). However 8 December 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.”
The Objectors, are also the Applicants named above.
Procedural Issues
[14] On 17 December 2001 Deputy President Sumner directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry and on 18 December 2001 Directions were issued for the conduct of the inquiry. The various contentions made by the parties have been pursuant to those Directions and subsequent variations. A Listings Hearing was convened on 27 May 2002.
[15] 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. The Tribunal is required, pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. This section was considered by R D Nicholson J in Little v Western Australia [2001] FCA 1706. His Honour made the following findings on this provision (at [55]):
“The third particular is whether there was a denial of procedural fairness in the Tribunal deciding to determine the applications on the papers without giving the Council a reasonable opportunity to make submissions on that issue. The power of the Tribunal to so determine arising as it does from s 151 (2) of the Act is a power which arises in the Tribunal ‘without holding a hearing’. The patent intention of the power is that the Tribunal can decide to proceed on the papers if it is satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of the parties.”
In this instance, having regard to the material before the Tribunal, I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.
[16] The parties have submitted to the Tribunal written contentions, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 22 April 2002
Contentions in Reply (“GPCR”) dated 22 May 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 30 April 2002
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 14 May 2002
Grantee Party Contentions
Grantee Party’s Contentions (“Gr1”) dated 23 April 2002.
Grantee Party’s Contentions (“Gr2”) dated 24 April 2002
Evidence
[17] In addition to the written contentions, the native title party lodged an Affidavit of Mr Terry Nimit. This Affidavit was affirmed on 23 April 2002 before David Shoobridge, a Justice of the Peace. The Affidavit is set out below:
Terry Nimit
“1. I am a member of the native title claim group in the Fish River native title determination application (DC01/28). Kathleen Parry is my auntie. She knows I Terry Nimit, am making this affidavit in support of the objection.
2. The area of the application includes the area of ELA 22738. I have seen a map of the area of the ELA. Now produced and shown to me marked “TN 22738” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. The ELA is in Larbaganyan country. I can speak for this country. The language for the country is Nanggiwumerri.
4. We use the road through the ELA in the Dry. Every year in the Dry we go out there and stay at Fish River Homestead. We go out as soon as it’s dry, in about April or May. We just camp in the bush, near the river. We take the kids. We stay out for four weeks, and bring the kids back for school.
5. But I stay out there all the time, with my cousin-brother James Parry, Kathleen Parry’s son. We stay out there for six months, maybe, until it starts to get wet. We come in for shopping, medical reasons, fuel, and to get the vehicle serviced. We shoot bullocks – clean skins – and bring the meat back to Daly River for family, go back out again.
6. When we are ready to come back we come back, but leave out stuff out there, outside the ELA area. We leave swags and billycans, saucepans – our camping gear. We leave it at Detjerri, a Belly Button Dreaming site, which is up north, close to Madman Creek, near the Daly River.
7. When we are out there, we camp at the crossing of Fish River near Damoi Ulat just outside the ELA area. We also camp up near the Fish River Gorge on the ELA.
8. We drive around on the ELA area hunting and fishing, at the old homestead area, Fish River Gorge, and other places. We camp every day at the camp site. We have photos of our visits to this country.
9. If any boys run amuck at Daly River mission, we take them out there. Sometimes we take Daly River boys who are getting into mischief, running amuck on the Mission. We take them out for as long as they can cope with it, and let them do what they want out there: fishing, hunting. We show them the right way. They like it out there. When we bring them back here they want to go back out again.
10. We take them, and anyone who wants to come, out to the Gorge, to show them. We take the family to see the Eye Dreaming sites.
11. During the Dry this year, we’ll be able to camp at Kalay, where the road goes into the Upper Daly Land Trust area (just outside the ELA), or Jurung Spring on the Land Trust area to the west of Kalay.
12. When we are hunting and fishing we get short necked turtle, black bream, long-necked turtle, kangaroo (that big rock one), bullock, sometimes wallaby, bush yam, wild honey (sugarbag), porcupine and other bush tucker. Last year we got the biggest mob of sugarbag. We get turtle and go hunting round the old homestead on the ELA, and we go up along the creeks upstream of the homestead, and walk along the gorge, fishing.
13. In 2001, I went to the ELA area with rangers and Glenn Wightman (of the Parks and Wildlife Commission N.T.). They were writing down Nanggiwumerri names for plants, animals, and what we got from the country. We all camped at the gorge on Fish River just in the ELA area.
14. I have written songs in English and in language about my homeland – about Fish River – and about my family and about this country in the ELA, and all our land.
15. We walked back from Fish River, me and my dad (before he passed away), with my step daughter. She was just a little kid then, about 5 years old. This was a few years ago, when we had no car. We camped and fished on the way. I wrote a song about it.
16. There is a big mob of bush medicines on that country. We also got a video tape of being out there another time getting bush medicines.
17. There is a special healing place out at Fish River for people when they get sores. It is a hot water spring called Umpaparu. We take people out there. We took Therese Parry’s mum out there. She was in a wheelchair; now she is walking. We’re keeping it quiet. It’s lovely out there. There is a hot spring there that runs into Daly River.
18. You can hear the spirits of the old people, the ancestors, calling out there. When we go there we have to call out to the country to let it know we are coming.
19. When we take strangers out to our country we have to introduce them properly way to the place. We’ve got to put water on them. If we don’t do it, the country don’t give us anything; no turtle, no bream, no bush tucker.
20. I have got photographs of the ELA country from recent visits; photos of the old homestead area, at the mouth of the Fish River Gorge, and upstream in the Gorge.
21. I have flown over Muldiva Creek in the ELA with Rangers from the Parks and Wildlife Commission of the Northern Territory. If we had a good vehicle we could travel out there. I have been to Muldiva Mine. It is on top of a hill, with holes going into the hill.
21A There is a King Brown Dreaming site between Fish River homestead and Muldiva Mine.
22. There are important Eye Dreaming Sites in the Fish River Gorge on the ELA. My dad told me about that Eye Dreaming. There are two eyes: a bad eye, Damoi Ulat, near the mouth of the Fish River Gorge, and a good eye, Damoi Yubo, further up at the top of the gorge. The gorge is the Eye Dreaming, Damoi Ulat.
23. There is a story about these two sites. There were two old brothers in the Dreamtime who went hunting. They travelled a long way from place to place until they returned home to Larbaganyan country. After a long walk about and travelling from place to place, they’d come home and rest for a week or two. Then one night, around their camp fire, they talked about bush tucker. They decided to go out hunting next morning. They started walking upstream. They killed a kangaroo, caught black bream and went looking for wild honey. They looked and looked as they were walking upstream. One of the brothers found an ironwood tree with wild honey in it. So they started to chop the ironwood tree down. They took turns in chopping until one of the brothers had an ironwood chip in both eyes. He was blind.
24. That’s how Damoi Ulat became a Bad Eye Dreaming site. The other brother went on to the Good Eye Dreaming site up the gorge. I have done a painting of this story. I have been up there walking up to the Good Eye Dreaming with Kathleen and others.
25. There are Mermaid people all through this country on the ELA area, which you can hear at night. They are singing out for young boys. Mermaid people are men and women. When you take visitors or family you have to wet their head and belly button, to stop the mermaids from taking young boys.
26. One night camping out at Blackfellow Springs I heard a stick breaking twice. I asked my dad what it was. I could hear my dad talking to the old people’s spirits. This frightened the visitors we had with us. There are ancestors out there all the time when we go out there. We can hear them. It is the ancestors giving us a sign, and letting us go and catch fish and things. I hear my dad calling out to me and to my wife and kids. My son can hear his grandfather – Anggar – calling out when we go to this country.
27. If mining people come, they have to get someone to show them where the Dreaming Sites are; where they can go and where they can’t: me or James Parry. The mining company people should stay away from the Eye Dreaming sites for their own protection. If the wind comes from there, when you are near the Bad Eye Dreaming site, you can get blinded or get sore eyes. Also, other people who are not from this country should not go near the Good Eye Dreaming site. They can’t go along the gorge area. Our kids don’t chop trees along that gorge. The company people might get sick, or we might get into trouble for letting them go to these Dreaming sites.”
[18] The government party raised the following contentions in relation to Mr Nimit’s Affidavit (GPCR paras 87 – 90):
“87. At paragraph 1 of his affidavit, Mr Nimit states that he (is) a member of the native title claim group in the Fish River native title determination application D6028/012 (DC01/28). This determination application provides (in Schedule A, paragraph 1) that the claim group comprises “the Wagiman, Ngangiwumeri, Malak Malak and Kamu Peoples”. Mr Nimit is not a registered native title claimant. He makes no assertion that he is authorised to speak for or on behalf of the native title claim group. If Mr Nimit’s intention is to rely on his statement in paragraph 1 that, “Kathleen Parry is my auntie. She knows I am making this affidavit in support of the objection” as sufficient authorisation, then it is clearly not adequate.
88. In relation to his authorisation generally, in a recent matter before the Federal Court the issue of an authorisation for the purposes of making/maintaining the claim was considered. In Ward v Northern Territory (Federal Court, O’Loughlin J., [2002] FCA 171, 8 February 2002), His Honour looked for indicia of authorisation sufficient to satisfy the Court. Justice O’Loughlin did not accept a purported variation where merely the date of the meeting was given, stating:
“The information concerning the meeting that was held on 27 January 2002, the date of Mr Carlton’s affidavit, is wholly deficient. There is no information about that meeting. Who convened it and why was it convened? To whom was notice given and how was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded? (at [24])”
89. The Territory submits that it is not acceptable in an expedited procedure objection inquiry to leave the important issue of the authorisation of a witness to speak on behalf of a claim group, or some part thereof, unstated. The Tribunal is placed in the
unenviable position of chancing its hand at inferring that authority. The Tribunal, following Little v WA, must hold that, in the absence of credible evidence of authorisation, the witness speaks with the weight of one.
90. Additionally, the evidence of authorisation should be independent of the witness. For a witness merely to self-warrant that s/he has the authority of the claim group or some part of it invites a similar adverse inference if it (is) not corroborated by independent evidence. The authority should ideally be objectively evidenced from those whom the witness purports to represent, for example by an attendee of the authorisation meeting or from within the traditional structure who can credibly and substantively address the issues noted by O’Loughlin J. Why, for example, could not Ms Parry warrant Mr Nimit’s authority in this matter? One could safely assume that the instructions of the registered native title claimants in DC01/28 were obtained at the appropriate time to lodge the objection in this matter. Could not that occasion have been utilised to buttress the issue of Mr Nimit’s authorisation?”
[19] The contentions of the government party highlight some very serious issues concerning a deponent’s authority to provide certain evidence, which often arise in expedited procedure objection inquiries in the Northern Territory. Insofar as these issues are brought into sharp focus in this inquiry, it is desirable to briefly set out those principles which underpin this aspect of the determination.
[20] The first point which needs to be re-iterated is that a distinction should be drawn between the nature of authorisation required of a native title holder purporting to speak on behalf of sacred areas or sites and a native title holder providing evidence of community or social activities. In the former case the principles enunciated by R D Nicholson J in Little v Western Australia apply. A person claiming to speak on behalf of such areas or sites must have the requisite authority to do so. Such a person must demonstrate that he or she has the requisite standing and knowledge to enlighten the Tribunal about the particular sacred quality of an area or site. If such authority cannot be demonstrated then the relevant native title holder’s evidence will be accorded little evidentiary weight.
[21] This type of authorisation must be contrasted with that required for persons giving evidence of community or social activities, or indeed about the general environment and history of particular land and waters. Evidence of community and social activities can be provided by any native title holder. The core issue for the Tribunal, apart from the inherent nature of the evidence, is whether the deponent has the relevant knowledge and experience of the activities being deposed to. The fact that such a deponent is not an applicant is to all intents and purposes irrelevant. In matters such as these the Tribunal needs to ascertain that the person or persons providing the evidence are members of the claim group and are providing direct, as distinct from hearsay, evidence. Provided that these preliminary issues are addressed then it is not necessary for the Tribunal to require any further evidence of the deponent’s status (if that were possible) within the community of native title holders that comprise the native title determination claim group. See also my comments in Victor Groves & Ors/Exploration & Resource Development Pty Ltd/Northern Territory DO01/127-129, unreported, 13 September 2002 at [11] – [12].
[22] With respect to authorisation generally, the government party referred the Tribunal to the recent decision of O’Loughlin J in Ward v Northern Territory [2002] FCA 171. In that case His Honour was dealing, inter alia, with an application pursuant to section 66B to replace the current Applicant in the claimant application before him. O’Loughlin J pointed out (at [23]) that section 66B(1)(b) requires that the member or members of the claim group who apply for a replacement order must be authorised by the claim group. He then went on to find that there was insufficient evidence of such authorisation and set out at [24] some of the indicia of authorisation that was lacking.
[23] It is, however, incorrect to equate the nature and type of authorisation being discussed by O’Loughlin J with the nature and type of authorisation required of a native title holder providing evidence of areas or sites said to be of particular significance.
[24] I have previously dealt with this issue, and for present purposes I refer to the following comments in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002 at [28]:
“The Tribunal, when conducting an expedited procedure objection inquiry, is required to carry out its functions in a fair, just, economical, informal and prompt way (s109(1)). In addition, the Tribunal is not bound by technicalities, legal forms or rules of evidence (s109(3)). Clearly it is important that in an expedited procedure objection inquiry, the Tribunal look at the evidence and the circumstances surrounding the preparation and presentation of that evidence in a commonsense manner, being fully cognisant of the cultural, geographic, climatic and other considerations that impact on the ability of the various parties to meaningfully participate. In the context of this matter, the Tribunal would not require a native title holder who provides an affidavit dealing, inter alia, with alleged sites of particular importance to demonstrate that he/she has the type of authorisation enumerated by O’Loughlin J in Ward v Northern Territory [2002] FCA 171 at [24]. His Honour was there dealing with evidence of what would constitute authorisation in the context of a section 66B application. When a native title holder says that he/she is speaking for country or for particular areas or sites, then they should specify in their witness statement or affidavit whether they are a member of the relevant native title claim group, what position they hold in the claim, on what basis they can speak for the country or site, the significance of the country or site and such other information that allows the Tribunal to ascertain that what is being deposed to, is a proper refection of the traditions of the claim group. If a native title holder cannot, according to the laws and traditions of the claim group, put such information down in writing, the legal representatives of the Objector should then seek to have an oral hearing when such evidence can be given in a culturally sensitive manner. If neither of these approaches is taken and the Tribunal is presented with material that does not address the above matters, the principle enunciated by R D Nicholson J in Little’s case must be applied.”
[25] Subsequently in Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/100, unreported, 5 July 2002 (“Allan Griffiths”) I set out (at [15]) some of the factors that are relevant in determining if a person who purports to speak on behalf of particular areas or sites said of be of particular significance has the requisite authority to do so.
[26] A named applicant has, under the Act, broad powers and responsibilities. In the instance of a claimant application, an applicant may deal with all matters arising under the Native Title Act 1993 in relation to the application – see s 62A. Ordinarily the Court looks to the applicant in proceedings related to the application. An applicant is entrusted with considerable authority by reason of the Act, and before the applicant is removed pursuant to section 66B the Court needs to ascertain that the current applicant is either no longer authorised by the claim group to deal with matters arising in relation to a claim or has exceeded his/her authority and that the replacement applicant has been so authorised by the claim group.
[27] The importance of obtaining proper authorisation was explained by Wilcox J in Moran v Minister for Land and Water Conservation (1999) 5 AILR 61 in the following terms (at 70/[48]): “The obtaining of proper authorisation of a claimant application is a fundamental requirement of the Native Title Act. It is important that those who come to the Court asserting a native title right, with all this involves in terms of effort and expense to other parties and the Court itself, should be properly authorised to make the claim.”
[28] There are numerous Federal Court decisions on the question of authorisation, both with respect to the authorisation required to become an applicant initially (see ss 61 and 251B) and to remove the original applicant and replace with a substitute applicant (s 66B). The principles underpinning this area of the law were comprehensively explained recently by French J in Daniel v Western Australia [2002] FCA 1147. It is not necessary for the purposes of this matter to either repeat or paraphrase what His Honour said in that case. Suffice it to say, authorisation for the purposes of section 61 or 66B is different conceptually to that type of authorisation discussed by R D Nicholson J in Little v Western Australia with respect to section 237(b). The former is mandated specifically by the Act, the nature of the authorisation is specified in the Act and its existence is fundamental to the whole statutory scheme. The latter type of “authorisation”, in contradistinction, has no specific statutory base and is simply the provision of material that will satisfy the Tribunal that the deponent or deponents have the requisite standing and knowledge, such that their evidence is accorded the appropriate weight. A commonsense approach in such an evidentiary weighing exercise is apposite. In the context of a short form expedited procedure objection inquiry, the Tribunal will look to the type of matters I outlined in Allan Griffiths. To go any further would raise the evidentiary bar too high and would be inconsistent with the statutory scheme underpinning expedited procedure objection inquiries.
[29] In the context of this matter, Mr Nimit says that he is a member of the claim group. This fact is not seriously contested. I find that he is capable of deposing to those matters germane to community and social activities and generally with respect to the land and waters that comprise the proposed tenement.
[30] With respect to the material relating to sacred areas and sites, it is the case that Mr Nimit is not an applicant and there is no evidence before the Tribunal about his particular authority or status within the claim group to speak on behalf of the sites outlined. Mr Nimit says that his aunt, Kathleen Parry, who is an applicant, knew he was making his Affidavit and supported it. This statement is, in the context of the material before the inquiry, of little assistance. Whether Mrs Parry has the requisite knowledge, “qualifications” or authority to speak on behalf of particular areas or sites is unclear. Moreover, even if she did, it cannot be assumed that the law of agency applies such that she could of her own motion delegate to her nephew the task of deposing to such matters. In such cases the Tribunal needs to be presented with direct evidence from the person having the requisite authority that he or she, pursuant to the traditions of the claim group, has given the deponent (in this case Mr Nimit) the authority to speak for country or sites or informs the Tribunal that the deponent in fact has that authority pursuant to the laws and customs of the claim group.
[31] It is also the case that Mr Nimit’s evidence on this very question is challenged by the government party. The native title party has lodged a copy of the draft Fish River Ranger Training Camp: Wildlife Survey Results (2-5 September 2001). It would appear that this document has been prepared on behalf of the Northern Territory Parks and Wildlife Commission. One of the indigenous persons named in the Report as assisting the Commission is Mr Nimit (he is described as one of the “Ngan’giwumirri guests”). I am prepared to infer from this draft Report that Mr Nimit is a traditional owner in the area of the Daly Basin, which includes the proposed tenement. However, this document does not assist in determining Mr Nimit’s qualifications or status to speak on behalf of the sites he deposes to.
[32] In the circumstances, the Tribunal is not given considerable assistance from the materials submitted in this inquiry about exactly what position Mr Nimit plays in the claim group or his ability, knowledge or authority to speak on behalf of the sites he mentions. In the context of a section 237(b) assessment the weight ascribed to his Affidavit would reflect this. I agree with the government party that Mr Nimit, in the context of his evidence concerning areas and sites has the weight of one member of the claim group.
Aboriginal Communities
[33] The only Aboriginal community specifically referred to by the native title party (OSC at para 61) is the Daly River community (Naiyu) which is said to be located approximately 50 km north west of the proposed tenement. While reference is also made to the Upper Daly Aboriginal Land Trust, this is not helpful as this is merely a form of tenure. Whether there are specific communities of native title holders resident on the area of the Land Trust is not specified in the material before the Tribunal
Recorded or Registered Sites
[34] There are 12 AAPA recorded sites within the boundaries of ELA 22738 and a further 4 recorded sites and 2 registered sites/areas in close proximity.
[35] The recorded sites have all been ascribed a status of 10 by the AAPA, while both of the registered sites have a status of 40.
[36] One of the registered sites is Kalay (Collah Waterhole) which is located approximately 200 metres from the southern boundary of the proposed tenement. It is clear that this is a very important site. The native title party referred the Tribunal (OSC at para 74) to the following findings of Kearney J in his capacity as an Aboriginal Land Commissioner in the Upper Daly Land Claim (Volumes 1, 2 and 3) Report (at p.37 and at p. 75):
“The claimants also gave evidence about the significance of various sites. Kalay (287) (Collah Waterhole) is a large waterhole some 200 metres inside the claim area; see Appendix 1. This was clearly an important site; it was associated with the Red Ochre, Sore and Dog Dreamings.”
“Paddy Huddleston said that all the Wagiman spirits, on death, went ‘straight back to Kalay’ (287) because ‘that’s the main place, Dreaming place … from before all the time’ (Exhibit 13, p.17). His evidence was that Wagiman people are buried near their country ‘then all their spirits go back to Kalay’ (287).”
[37] It is clear that Kalay is a site of particular significance to the Wagiman People. The Wagiman are part of the claim group in this matter. Mr Paddy Huddlestone who gave the evidence quoted above is an applicant. Despite the fact that there is no direct evidence from Mr Huddlestone in this inquiry, it would not be appropriate to ignore the above finding of Kearney J. The particular and central importance of this site is so manifest and so clear that it is appropriate in the circumstances to accept that Kalay is a site of particular significance without this being attested to by direct evidence from a native title holder. Clearly this is a most unusual circumstance, and in the normal course of events, findings by an Aboriginal Land Commissioner on a site is such that it is not possible to ascribe to it the status of an area or site of particular significance without some direct evidence. In short in the vast majority of instances findings in a Land Claim Report do not stand by themselves but add to the weight of the primary evidence provided by native title holders. However, insofar as His Honour had before him evidence from a person who is also an applicant and, further, taking into account the central place of Kalay in the traditions of the Wagiman People, I am prepared to infer from the Report that it is a site of particular significance.
Previous Exploration Activity
[38] The area of the proposed tenement has been subject to numerous previous exploration and mining grants by the Northern Territory over an extended period of time. Within the boundaries of ELA 22738 are three abandoned mines: Muldiva, Buldiva and Kaolin Show. Outlined below are details of previous granted exploration licences:
EL: 613, 656, 1135, 1281, 1340, 1358, 1508, 1598, 1986, 1997, 2251, 2313, 2431, 2541, 2754, 2756, 2842, 2965, 3454, 4203, 4205, 4526, 4650, 4693, 4858, 4891, 4908, 5002, 5109, 5457, 5586, 5946, 6112, 6649, 6112, 6649, 6713, 6758, 6928, 7043, 7380, 8373, 8 499, 9532.
There is one current mining tenement on the area of ELA 22738, situated close to the southern boundary - Mineral Claim (Northern) - MCN 3753
[39] Over the years extensive stream sediment/loam sampling has been carried out over much of the area of the proposed tenement, together with some rock chip sampling in the central north and near the southern boundary, in particular around the area of MCN 3753.
Nature of the Proposed Exploration Activity
[40] In its Application for the Grant of an Exploration Licence, the grantee party made the following comments about its proposed work program for the first year:
“Two (2 vehicles and three (3) men in the field for four (4) weeks
One (1) vehicle and one (1) man in the field for further sixteen (16) weeks
Preparatory work
Consultancies”
Expert Evidence Adduced by the native title party
[41] In addition to the Affidavit of Terry Nimit 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.
[42] 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].
Legal Principles
[43] 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.
[44] 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
[45] The primary material relied upon by the native title party as evidence of the carrying on of community and social activities, was the Affidavit of Mr Nimit. In addition, reliance was also placed on findings by Kearney J in the Upper Daly Land Claim Report. The particular findings of Kearney J are located at paragraphs 60 to 63 of Volume 2 of the Report. Those findings are now dated, and are worded in such a manner that it is difficult to conclude that the foraging discussed, occurred on a regular basis within the boundaries of the proposed tenement. For the purposes of this inquiry I have not found these findings to be of any particular assistance. Further, the native title party also seeks to rely on findings of Maurice J in the Mataranka Area Land Claim Report with respect to the manner in which foraging occurs and the importance of this activity. The land and waters under consideration in that Report are located some distance from the proposed tenement. The Report is quite dated and there is no material before the Tribunal indicating a relationship between the traditional owners giving evidence before His Honour and the claim group in this matter. I have, accordingly, not found this Report to be of any assistance in this inquiry.
[46] The native title party made the following submissions (OSC at para 64) on the content of community and social activities:
“64. The community or social activities of the native title claim group include:
a. Foraging [Land Claim Report (Volume 2) [60]-[63]]. Foraging includes obtaining and preparing bush medicines [61], and teaching children how to hunt and to find bush tucker, as well as about spiritual matters [63]. The manner in which foraging occurs, together with the importance of this activity is set out at [7.1.1]-[7.2.6] of the Mataranka Land Claim Report;
b. Hunting, fishing, and gathering of bush tucker [affidavit of Terry Nimit [8], [9], [12], [15]]. The Mataranka Land Claim Report provides some assistance in defining the context in which foraging (which includes hunting, fishing and gathering of bush tucker) takes place [see [7.1.1]-[7.2.6]];
c. Looking after boys who get into trouble at Daly River Mission, during the dry season [affidavit of Terry Nimit [9], [10]];
d. Introducing people to country [affidavit of Terry Nimit [19], [25]; Land Claim Report (Volume 2) [43]];
e. Showing country to non-members of the native title claim group [affidavit of Terry Nimit [10], [13], [19], [21], [26]; Land Claim Report (Volume 2) [44]];
f. Communicating information about country to people who are not members of the native title claim group [affidavit of Terry Nimit [13]];
g. Writing songs and singing about, painting, and taking photographs of country in the licence area [affidavit of Terry Nimit [8], [14]-[16], [18], [24]];
h. Communicating with country in the licence area [affidavit of Terry Nimit [19], [25], [26]; Land Claim Report (Volume 2) [44]];
i. Collection of bush medicines [affidavit of Terry Nimit [16]; Land Claim Report (Volume 2) [61]];
j. Teaching children about traditional laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas or sites [affidavit of Terry Nimit [4], [9], [10], [26]; Land Claim Report Volume 2) [63]];
k. Religious activities [affidavit of Terry Nimit [18], [19], [25]];
l. Quiet enjoyment and camping [affidavit of Terry Nimit [4]-[8], [11]];
m. Showing other members of the native title claim group, and others areas and sites of particular significance [affidavit of Terry Nimit [27]].
n. The community of native title holders actively look after country, by visiting and maintaining sites [affidavit of Terry Nimit [10], [24], [27]; Land Claim Report (Volume 2) [44]]. This activity is conducted by individuals with specific responsibility for that area or those sites, such as Terry Nimit or James Parry [affidavit of Terry Nimit [27]].
These activities occur over some or all of the licence area, and in its vicinity.
a. Members of the native title claim group drive around the licence area hunting and fishing, at the old homestead area, Fish River Gorge, and other places on the licence area [affidavit of Terry Nimit [7], [8]];
b. They also go up the Fish River Gorge to Kalay, where the road goes into the Upper Daly Land Trust area (just outside the ELA), or Jurung Spring on the Land Trust area to the west of Kalay [affidavit of Terry Nimit [11]];
c. They get turtle and go hunting round the old homestead on the ELA, and go up along the creeks upstream of the homestead, and walk along the gorge, fishing [affidavit of Terry Nimit [12]];
d. Terry Nimit has flown over Muldiva Creek in the licence area, and been to Muldiva Mine [affidavit of Terry Nimit [21]];
These activities occur regularly and are carried on by more than isolated numbers of members of the native title claim group:
o. Terry Nimit goes out each April or May with his family, including children and their parents. He stays out for the whole of the Dry with his nephew, James Parry. Sometimes they look after boys from the Daly River Mission [affidavit of Terry Nimit [4], [5], [9]].
p. Terry Nimit, Kathleen Parry and others go regularly to Damoi Ulat and Damoi Yubo [affidavit of Terry Nimit [10], [24]].”
[47] The government party provided the Tribunal with extensive contentions in reply to the submissions of the native title party. For present purposes, however, specific mention can be made to the following submission (GPCR at para 63):
“These activities must be carried on. The references in the affidavit of Mr Nimit are so unspecific and there are very few references to the proposed licence area that contain any useful information upon which to found a carrying on of social or community activities on the proposed licence area. The specific locations at which these activities are said to occur are patchily identified, the number of relevant persons engaged in these activities, when they go, the seasonal variations in the game or item; all are unstated.”
[48] In Smith v Western Australia (2001) 108 FCR 442 French J found that the Tribunal is required to conduct a predictive assessment, and that a future act is likely to result in interference with community or social activities if it involves a real chance or risk of interference. However, the interference referred to in section 237(a) (at 451) “must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.” 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.”
[49] In this inquiry the Tribunal has been presented with detailed evidence of community and social activities by Mr Nimit. The nature and detail of the evidence is qualitatively different to any that I have previously considered in Northern Territory expedited procedure objection inquiries. It is also the case, as I have found, that Mr Nimit as a member of the native title claim group is able from his own life experiences to recount to the Tribunal about activities on and around the land and waters that comprise the proposed tenement. Moreover, there is no material before the Tribunal which would cast any doubt on the accuracy of the material he has deposed to.
[50] Mr Nimit deposes that he lives at Nauiyu Nambiu Community, Daly River Mission. The distance between the proposed tenement and the Daly River Mission is estimated by the native title party (OSC at para 61) to be approximately 50 km. Nonetheless Mr Nimit says that each year during the dry season he drives to this area and stays at Fish River Homestead. This place is marked on the map attached to his Affidavit and would appear to be located either slightly within or near to the north eastern boundary of ELA 22738. It would appear that Mr Nimit leaves for the Homestead in April and May and stays there for six months until the wet season begins.
[51] Mr Nimit also claims that he travels from the Homestead and camps out in the bush for about four weeks at a time. In the Affidavit the location of the camping is not clearly set out, although Mr Nimit says that he camps “near the river”. I infer from this that he is referring to the Fish River which flows through the eastern sector of the subject area. In fact later in his Affidavit he specifically says that he camps at the Fish River Crossing, which is located just outside the proposed tenement and also near the Fish River Gorge which is within the proposed tenement. He also deposed to camping at Kalay, which, as previously noted, is located about 200 metres from the southern boundary of the proposed tenement.
[52] On the camping trips Mr Nimit says that “we take the kids”, and at the end of the four weeks the children are taken back for school. Nonetheless he remains for most of the six months with his “cousin-brother” James Parry, who is Kathleen Parry’s son.
[53] The sorts of activities carried on include hunting, fishing and gathering. Mr Nimit deposes that he hunts bullocks and the meat from the bullocks is taken to Daly River to feed members of his family. He says: “We drive around on the ELA area hunting and fishing, at the old homestead area, Fish River Gorge, and other places. We camp every day at the camp site. We have photos of our visits to this country.” Additionally he provides evidence of fishing for black bream and short necked turtles, hunting for kangaroo, wallaby and porcupine and gathering bush tucker including bush yam and wild honey. Fishing for turtle would appear to occur mostly around the Homestead and fishing for bream in the Fish River Gorge. Finally, apart from bush tucker, evidence has also been provided about the collection of bush medicines and of a video being made of this activity. Mr Nimit also identifies a hot water spring called “Umpaparu” at Fish River which heals sores.
[54] Mr Nimit says that he has written songs in English and in the Nanggiwumerri language about the Fish River, his family and the land and waters that comprise the proposed tenement. He recounts an event that occurred many years ago when he was accompanied by his father and step daughter how they walked, camped and fished from the Fish River and he wrote a song about it.
[55] He also deposes to taking boys who misbehave at the Daly River Mission, out to the proposed tenement “for as long as they can cope with it, and let them do what they want out there: fishing, hunting. We show them the right way. They like it out there. When we bring them back here they want to go back out again.”
[56] The cumulative effect of Mr Nimit’s evidence is a portrait of a general area of land and waters that is frequented on a regular and intensive basis for the carrying on of traditional activities. Moreover these activities play a central role in the lifestyle and culture of the relevant native title holders. The evidence discloses current activities. These are not stories of activities that took place at some distant time and which are now of historical interest only. Rather they are contemporary and demonstrate that a rich tapestry of traditional life continues to exist and perhaps flourish.
[57] The submission of the government party that the references in Mr Nimit’s Affidavit are not specific and that there are few references to the licence area does not reflect my reading of his evidence. I read his Affidavit as highlighting that for approximately six months of the year he and other members of his extended family traverse the land and waters comprising the proposed tenement and the surrounding area. He mentions specific locations and it is patently clear that he and other traditional owners travel over large areas on and near to the proposed tenement.
[58] Mr Nimit’s Affidavit also highlights the central importance of the Fish River and the land surrounding it. The Fish River flows through the eastern portion of the proposed tenement, and it is certainly the case that most of the places mentioned appear to be located in an arc around it. Obviously a significant portion of the licence area is located to the west of the Fish River. Nonetheless, it is open for the Tribunal to infer that other sections of the proposed tenement are likewise used for traditional activities, albeit not with the same degree of frequency or intensity.
[59] The government party also contends that the number of persons engaging in these activities is unstated. That is true up to a point. However, it is quite clear from a commonsense reading of the Affidavit that apart from Mr Nimit, other members of his extended family and other members of the claim group also engage in the traditional activities he deposes to. I agree with the native title party’s contentions in this regard (see OSC at para 64 o and p).
[60] Nonetheless, even though I am satisfied that there is compelling evidence about community and social activities on the proposed tenement, the task of the Tribunal is to determine whether it is likely that exploration is likely to interfere directly with such activities.
[61] An important factor in any such assessment in the Northern Territory is the regulatory regime in force governing the granting of exploration licences. It is important to note that the regulatory regime in the Northern Territory has been specifically drafted with native title considerations in mind. This regime attempts to strike an appropriate balance between promoting economic development on the one hand and maintaining and protecting native title rights and interests on the other. This regime is so comprehensive and so well integrated into the decision making process, that in the normal course of events when carrying out a predictive risk assessment, it would be fair to say that it would be unusual for a positive assessment of likelihood of interference being made. This is simply because the drafters of the various legislative provisions have, in my respectful opinion, devised a scheme which in the normal course of events would render it unlikely that exploration would interfere with community or social activities. In that regard I refer to two conditions imposed on grantees pursuant to section 24A of the Mining Act which are illustrative of this general proposition:
“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 is 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.”
Nonetheless, the existence of this regime does not render a section 237(a) assessment by the Tribunal unnecessary. In each and every inquiry the Tribunal considers the evidence presented, and no matter how proactive and well integrated the regulatory regime is, in certain circumstances it will be possible to find that in fact there is a likelihood of direct interference.
[62] Before outlining the various considerations I have taken into account in this inquiry it is appropriate to refer to previous determinations of the Tribunal where there have been findings that the grant of the future act in question would be likely to result in direct interference with community or social activities. Each of the determinations set out below were made after the 1998 amendments to the Act and each related to proposed tenements located in Western Australia:
(a)Leone Velickovic/Western Australia/Royce William Allen WO00/184, unreported, Deputy President Franklyn, 10 November 2000;
(b)Violet Drury & Ors on behalf of the Nanda People/Western Australia/Giralia Resources NL WO00/93, unreported, Deputy President Franklyn, 18 May 2001;
(c)Kevin Peter Walley & Ors/Western Australia/Giralia Resources NL WO01/179-180, unreported, Deputy President Sumner, 8 March 2002;
(d)Albert Little & Ors on behalf of the Badimia People/Western Australia/Giralia Resources NL WO01/183, unreported, Deputy President Sumner, 8 March 2002;
(e)Evelyn Gilla & Ors on behalf of the Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd WO01/174, unreported, Deputy President Sumner, 27 March 2002; and
(f)Robin Boddington & Ors on behalf of the Wajarri Elders/Western Australia/Hampton Hill Mining NL WO01/486, unreported, Deputy President Sumner, 11 April 2002.
In each of these determinations the Tribunal was presented with evidence of regular travelling, camping and hunting on the relevant land and waters. Further, in each case it would appear the evidence presented demonstrated that the activities were not isolated, were conducted on a frequent basis and played an important part in the life of the claim group in question. In each case the nature of the evidence presented differed, but in total it is the case that both Deputy President Franklyn and Deputy President Sumner have found that there is a likelihood of direct interference when there is evidence before the Tribunal of these types of contemporary activities. Importantly in none of these determinations was the evidence of community or social activities contested by the other parties.
[63] It would be incorrect to automatically apply these determinations in Northern Territory expedited procedure objection inquires. The regulatory regime governing the granting of exploration licences is quite different in Western Australia, and it is of critical importance to have regard to the overall protective regime in force in any jurisdiction when making a predictive risk assessment. Accordingly, even if there was evidence before the Tribunal of a type similar to that presented in the above Western Australian inquiries, one should not work on the assumption that the same result would necessarily pertain in the Northern Territory.
[64] In assessing the likelihood of the future act interfering directly with the carrying on of the community or social activities of native title holders, I have taken into account the following factors:
(a)the proposed tenement forms part of Crown Lease Perpetual 435 and 815. With the exception of a very small triangular shaped parcel of land in the north eastern corner of the proposed tenement, ELA 22738 falls almost wholly within CPL 435. This is potentially of some importance. It would appear that CPL 815 is held by two (it would seem) privately owned companies as tenants in common and the stated purpose of the lease as set out in the relevant Search Certificate is grazing and ancillary. In contradistinction CPL 435 is held by the Northern Territory Land Corporation. While it is not clear for what purpose this Corporation holds the land, there is no suggestion that the land and waters are used either for grazing or agricultural purposes. A perusal of the Northern Territory Land Corporation Act sheds no light on this issue. The Corporation’s function is to acquire, hold and dispose of real property, and it has the power to do all things necessary or convenient to be done for, or in connection with or incidental to the carrying out of its function – see s 15. This situation can be compared with land and waters that form part of a pastoral lease. The licensees of those Leases together with any employees or agents of the licensees have a right, pursuant to the terms of the lease and the law governing that lease, to carry out lawful activities. To the extent that a pastoral licensee (or persons authorised by the licensee) lawfully exercise rights granted, such activity prevails over any native title rights and interests – s 44H. French J highlighted in Smith v Western Australia that when assessing the risk of direct interference the Tribunal is entitled to have regard to constraints already imposed on community or social activities by third parties. In the case of land used for pastoral purposes, the Tribunal has regard to the fact that community or social activities on the proposed tenement by native title holders are already subject to lawful activities of the pastoral lessees. In this matter, however, the vast majority of the proposed tenement is not set aside for pastoral activities. This is not a situation where the community and social activities of native title holders are subject, on a daily basis, to the lawful activity of pastoralists. Obviously when assessing the likelihood of an explorer directly interfering with the social and community activities of native title holders, it is relevant to factor in ongoing disturbances, actual and potential, of other persons who have a lawful entitlement to access and use the land in question. Such a level of ongoing disturbance is not present in this matter. While it is certainly open to the government party to highlight the existing lawful use of the proposed tenement by third parties, one matter which cannot be relied upon in this matter is the degree of use by pastoral lessees insofar as only a very small portion of the proposed tenement has been set aside for pastoral purposes;
(b)the grantee party lodged two sets of Contentions. The first relied totally upon the submissions of the government party whilst the second simply paraphrased the three paragraphs of section 237 with an indication that the grantee party would take all reasonable measures/steps etc to ensure that it would not cause the relevant interference/disturbance described in paragraphs 237(a) – (c). Whilst it is appropriate to apply the presumption of regularity to the grantee party, the very limited nature of the material submitted does not greatly assist the Tribunal. In these circumstances I have proceeded on the assumption that the grantee party will exercise its legal entitlements to the maximum;
(c)although there are no Aboriginal communities located within, or in close proximity to, the proposed tenement, I have taken into account the fact that Mr Nimit and other native title holders live for almost half of any given year Fish River Homestead and camp on various parts of the proposed tenement;
(d)the detailed and contemporary account of community and social activities provided by Mr Nimit; and
(e)the material contained in the Fish River Ranger Training Camp: Wildlife Survey Results, confirms that this region of the Northern Territory is rich in flora and fauna. Mr Nimit refers in his Affidavit to his participation in the Survey. While in the past I have expressed caution about using Draft Reports of this nature (and I adhere to what I have previously said), this document can be used for the quite limited purpose of confirming that the land and waters in question are of prime importance for those traditional owners engaging in hunting, fishing and gathering activities.
[65] I have also considered the extensive mapping and other material provided by the government party on previous exploration and mining activity on the proposed tenement. It certainly is the case that this area has been the subject of widespread and varied exploration activity. There is also no serious evidence before the Tribunal that this activity has previously interfered with the community or social activities of native title holders. Nonetheless, the fact that the Tribunal has not been presented with evidence that this activity in the past has interfered with community or social activities, does not inevitably result in a finding that similar activities in the future will not be likely to have this effect. Suffice it to say, while evidence of previous exploration activity is important, especially when there is no evidence
of interference, it does not necessarily lead to the conclusion that there is no likelihood of future interference, particularly having regard to the evidence of community and social activities before the Tribunal.
[66] In this inquiry, on the one hand, I have taken into account the protective nature of the regulatory regime and the evidence of previous mining and exploration activity. On the other hand I have factored into the predictive risk assessment the extensive and compelling evidence of community and social activities provided by Mr Nimit, the fact that most of the land and waters in question are not used for pastoral purposes and the lack of any significant evidence of intention by the grantee party. On the balance I have formed the view that there is a real risk of direct interference within the meaning of section 237(a). If the land and waters in question fell within pastoral lease tenures, or if the Tribunal had been presented with evidence from the grantee party about how it intended to carry out its operations so as to minimise, in a practical sense, the risk of interfering with the activities outlined by Mr Nimit, a different result may have ensued. As it is, despite the regulatory regime, I am satisfied on the basis of the material deposed to by Mr Nimit that there is a real chance or risk that the grant of the exploration licence will result in direct interference with those activities.
Section 237(b) - Areas or sites of particular significance and
Section 237(c) - Major disturbance to land or waters
[67] Having regard to my finding with respect to section 237(a) it is not necessary to make a predictive risk assessment pursuant to either of these paragraphs.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22738 to Buchanan Exploration Pty Ltd is not an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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