Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster/Troy Resources NL/Northern Territory
[2002] NNTTA 103
•12 June 2002
NATIONAL NATIVE TITLE TRIBUNAL
Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster/Troy Resources NL/Northern Territory, [2002] NNTTA 103 (12 June 2002)
APPLICATION NO: DO01/85
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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Troy Resources NL (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: 12 June 2002
Hearing dates: 20 February 2002 and 5 April 2002
Government Party: Mr Daniel Lavery and Mr N Papandonakis 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 Robin Humberston
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – registered or recorded sites – whether act directly interferes with community or social activities – whether act interferes with areas and sites of particular significance – 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, 44H, 151, 237
Cases:Chubby Jones & Ors/Western Australia/Taipan Resources NL WO99/621-622, unreported, Deputy President Franklyn, 1 November 2000
Kathleen Parry & Ors/Troy Resources NL/Northern Territory DO01/84, unreported, Member Sosso, 24 May 2002
Little v Western Australia [2001] FCA 1706
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002
Rory and Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002, Deputy President Franklyn
Smith v Western Australia (2001) 108 FCR 442
Wik Peoples v Queensland (1996) 187 CLR 1
REASONS FOR DETERMINATION
Background
[1] On 16 May 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 22498 (“the proposed tenement”) to Troy Resources NL (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 30 blocks (approximately 100 square kilometres) and is comprised of Perpetual Pastoral Lease (PPL) 1005, known as “Elizabeth Downs” and Crown Lease in Perpetuity (CPL) 815.
[3] 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 Applicants are Ms Kathleen Parry, Mr Albert Myoung, Mr Paddy Huddleston and Ms Marjorie Foster. The application was entered on the Register of Native Title Claims on 25 May 2001. The Fish River application wholly covers the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal in regard to this proposed tenement. This was received on 17 September 2001. Technically this was more than four months after the section 29(4) notification day of 16 May 2001 (section 32(3)). However 16 September 2001 was a Sunday, 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 named Objectors are also the Applicants outlined above.
[5] Deputy President Sumner issued Directions for the conduct of the Inquiry on 21 September 2001 and convened a preliminary conference of the parties on 29 October 2001. The various contentions made by the parties have been pursuant to those Directions. On 5 November 2001, Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. Following my appointment, listings hearings were convened on 20 February 2002 and 5 April 2002 and further Directions were made
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. 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. 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”.
[7] The parties have submitted to the Tribunal written contentions in this matter, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC”) dated 28 February 2002
Contentions in Reply (“GPCR”) dated 5 April 2002.
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 6 March 2002.
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 3 April 2002.
Grantee Party Contentions
Statement of Contentions of the Grantee Party (“Gr1”) dated 25 March 2002.
Evidence
Affidavit of Biddy Lindsay
[8] In addition to the its Contentions, the native title party also submitted an Affidavit by Biddy Lindsay. This Affidavit was affirmed before Mr David Shoobridge, a Justice of the Peace, on 7 December 2001, and is set out below:
“1. I am a member of the native title claim group in the Fish River native title determination application (DC01/28). I am Malak Malak. My brother Albert Myoung is one of the applicants in the native title application.
2. The area of the application includes the area of ELA 22498. I have seen a map of the area of the ELA. Now produced and shown to me marked “BL-22498” is a map of the ELA and the surrounding area.
3. I live at Nauiyu, or Daly River Community, near Daly River Crossing, in the Northern Territory. The area of ELA 22498 is just across the Daly River from the community where I live. Daly River Crossing is about three kilometres from my house. The ELA is about three kilometres on the other side of the Crossing the main road from the Crossing to Port Keats goes through the middle of the ELA area. It is the only road to Port Keats and the outstations near there.
4. The northern part of the ELA area is in Malak Malak country. The southern part is in Ngangiwumeri country. Malak Malak country goes down to about the road to Port Keats.
5. There is a road from Mango Farm, across the river and downstream from Daly River community, across to Fish Billabong. The wetland area near Fish Billabong is my own country. It is on Elizabeth Downs station and on Malak Malak Aboriginal Land Trust. It is coloured darker green on the map.
6. We take mussels from the Billabong. My sons told me to put them back because of the lead poisoning.
7. There has been too much hunting for magpie geese in this area. That means there are lots of lead pellets, and the mussels are getting poisoned. On the Land Trust, we are stopping them shooting animals. NLC has come and helped us. We have put up signs saying no shooting. We asked Elizabeth Downs to help and they are stopping people shooting on the wetlands on the station. We asked the police to help us. Twice, they caught some Greek men from Darwin camping with magpie geese on the ELA area on Elizabeth Downs.
8. We go fishing there and get turtle and get lilies. I have been there this year. When I was young we used to cross the Daly River from Wooliana and walk to Fish Billabong. You can’t cross the river now: too much crocodile, too much dirty water.
9. We go in the Dry time. We take kids from here or Darwin. We teach them how to get tucker. They go to Red Lily lagoon near the community, or to the little lagoon right at the northernmost part of the licence area, Nimuni (about grid reference 758828). Fish Billabong is Wunelen in Malak Malak language. There are no Dreamings for those places.
10. Floodwood Billabong (about grid reference 758770) Pindark is on the road to Elizabeth Downs and Port Keats. We go there to look for turtle, might be duck or goanna. We walk from Fish Billabong or go in a car. We look for plum or fruit. I go with my sister and my brothers. It is easy to get kangaroo or wallaby from that area. I have been there this year, about once a month. We go in the Dry. When we go to Elizabeth Downs for turtle and fishing, we stop there for lunch on the way back.
11. Some people from the Daly River community, or from Port Keats or Peppiminarti go to the licence area every day for hunting. It is a good area for hunting. There are lots of lagoons that are good for fishing. Some people take turtles and sell them in Port Keats. Some people ask us permission to go on there.
12. The road to the tourist place at Mango Farm goes through the licence area. Sometimes we go there for lunch at the restaurant.
13. Back in the thirties, at a copper mine, north of Daly River, in the hills this side of Reynolds River, near Silver Mine Creek, they let water that was a milky colour run into the lagoon. All the fish died every year. People at the fish and mussels and they were sick. I reckon that’s why people are smaller now than they used to be. The mine was too close to the water.
14. That’s why we don’t like mining in that country. For a long time they didn’t look at what caused problems for people, or if there was anything in the water that would kill the animals. They’ve got to look at the water they put back on the country and in the creeks, and the samples coming out from it. They have to keep the water in one place.
15. It’s all right if they’re looking for samples, but when it comes to mining, they have to talk to us about how they look after the water.”
[9] Ms Lindsay deposes that she is a member of the native title claim group, and that her brother, Albert Myoung, is one of the Applicants. Nevertheless, Ms Lindsay does not address her status within the claim group or her authority to speak on behalf of the relevant land or waters. While the native title party contended that she is a senior member of the claim group (OSC at para 31), no such assertion is made by Ms Lindsay. The absence of such potentially critical evidence was highlighted by the government party (GPCR at para 87). In addition, the government party referred the Tribunal to the decision of R D Nicholson J in Little v Western Australia [2001] FCA 1706.
[10] R D Nicholson J dealt at some length with the evidentiary weight that should be given to an Affidavit of a Mr Bynder, who said that he was a Badimia man and gave evidence in relation to Lake Moore and its significance to the Badimia people – at [25]. His Honour pointed out that Mr Bynder had not established his qualifications to speak on behalf of the Badimia people, and as such the weight ascribed to his evidence was only that of one Badimia person – see [79]. However, the key point in this respect is that His Honour was evaluating the evidentiary significance of Mr Bynder’s Affidavit in the context of section 237(b). It is obviously a matter of great importance when a person purports to speak on behalf of a claim group with respect to sacred sites, that the person so deposing has the requisite knowledge, authority and qualifications to do so. However, in this matter the Affidavit of Ms Lindsay does not address section 237(b) matters. She deposes to various community and social activities and to the land and waters in general. There is no requirement for a native title holder to deal with the issues averted to by R D Nicholson J, when what is being deposed to is simply a recital of actual social or community activities that are carried out or environmental or historical evidence about the land and waters concerned. If Ms Lindsay had been deposing to areas or sites of particular significance to native title holders, then it would have been a different matter. As it is, there is no impediment to the Tribunal accepting into evidence the material contained in Ms Lindsay’s affidavit and ascribing to it the appropriate evidentiary weight.
Aboriginal Communities
[11] There are no Aboriginal communities located on the area of the proposed tenement. In the Form 4 it is alleged that members of the claim group reside in two communities located within a short distance of the proposed tenement, namely Wooliana (which is approximately four kilometres south west) and Daly River community (which is approximately one kilometre to the north east). In addition the native title party referred the Tribunal (OSC at para 40) to the Malak Malak Aboriginal Land Trust, which is about one kilometre from the northern portion of the proposed tenement.
[12] The government party pointed out (GPCR at para 56) that while Ms Lindsay deposes that she resides at the Daly River community (Naiyu), there is no evidence (as distinct from the bald assertion referred to above) that any other members of the claim group live there. If other native title holders in fact reside there, then there is nothing before the Tribunal indicating how many native title holders reside there, for what period and who they are. The same lack of detail also pertains to Wooliana, although the government party did point out that as at 30 June 2001 it had a population of 18. While I am prepared to assume that apart from Ms Lindsay, some members of the claim group reside in both communities, I am in no position to determine the extent and nature of community and social activities, apart from the specific evidence of Ms Lindsay, due to the paucity of material presented during this inquiry.
[13] The government party’s contention with respect to the Malak Malak Aboriginal Land Trust was as follows (GPCR at para 57): “Although the ELA abuts the Land Trust, such a Trust is merely a form of tenure. The Land Trust in question is of the order of 400 square kilometres in area. The only Community on the Trust is Wooliana. The 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.” I have previously determined that the fact that land adjoining a proposed tenement is of a particular tenure does not of itself assist the Tribunal. The fact that the tenure in question is an Aboriginal Land Trust may lend itself to the carrying on of community or social activities by native title holders. However, the existence and nature of such activities must be demonstrated by evidence, and cannot be assumed simply because there are land and waters falling within a particular tenure type: see Kathleen Parry & Ors/Troy Resources NL/Northern Territory DO01/84, unreported, Member Sosso 24 May 2002 at [14].
Recorded or Registered Sites
[14] It is asserted in the Form 4 that there are five sites recorded by the AAPA within the proposed tenement, a further seven registered within one kilometre of the proposed tenement and at least 83 within five kilometres of the proposed tenement. While referring to the number of sites, there is no mention in the Form 4 of any specific area or site. Likewise there is no reference in the Contentions of the native title party to any particular area or site, and likewise there is no reference to any areas or sites in the Affidavit of Ms Lindsay. The map produced by the government party discloses only one recorded site within the proposed tenement (5070 –56, Pindark a shallow billabong). It would appear that although there are a further four sites within the tenement boundary, these are sites that have only been accorded a status of “5” and fall within the following AAPA classifications:
(a)other sites – everything other than sacred sites, eg. place names, historical places, art sites or archaeological sites; or
(b)place names, which fall under another “type” of status in the AAPA database called “Other sites”.
For the purposes of this inquiry, I accept that there is only one recorded site within the boundary of ELA 22498, and a further four sites that have a AAPA 5 status. Further, I accept that in the area surrounding the tenement, particularly around the Daly River, there are numerous sites both recorded and registered by the AAPA.
Previous Exploration Activity
[15] The whole of the area of the proposed tenement ELA 22498 has been subject to a number of exploration and mining grants by the Northern Territory over the past 25 years (since 1976). Outlined below are details of previous mining and exploration tenements as supplied by the government party:
Extractive Authority – EA 293
Authority to Prospect – AP 1243Exploration Licence – EL 677, 1236, 1340, 1599, 1965, 2056, 2401, 4070, 4746, 5338, 6338, 6538, 6651, 8211.
[16] Mapping supplied by the government party indicates that the eastern and southern portions of the proposed tenement have been subject to quite extensive exploration activity, although very little or no recent exploration activity has occurred on the western and north western sections of the proposed tenement.
[17] Exploration activity in this area has included stream sediment sampling (EL 1965, 2056, 4070, 4746, 5338, 6338, 6538, 6651 and 8211), rotary airblast drilling (EL 1965), soil sampling (EL 8211) and rock chip sampling (EL 8211). This activity occurred in the period between 1980 and 1996.
[18] In its Statement of Contentions, the grantee party made the following observations (Gr1 at p.2):
“(6) The region in which the Licence is located has been the subject of comprehensive exploration and mining in the past over a considerable period of time by other Explorers.
(7) The Grantee Party has previously explored in the region.
(8) Heritage surveys of the region have been previously undertaken by past Explorers.
(9) The area of the Licence is prospective for the discovery of viable gold, copper, zinc, nickel and diamond resources.
(10) An understanding exists that the region in which the Licence is located has never been mined for lead.”
Nature of the Proposed Exploration Activity
[19] In its Application for the Grant of an Exploration Licence the grantee party indicated that its work program for the first year would include: “RAB Drilling of known mineralised trend, geological mapping, geochemical sampling.” With respect to its commitment should encouraging indications be obtained, the grantee party provided this information: “Troy Resources NL has to (sic) the capacity to take projects from prospect to feasibility stage. Should geochemical and/or lithological encouragement be sufficient, programming of systematic RC and Diamond Drilling would be undertaken.”
Expert Evidence Adduced by the native title party
[20] In addition to the Affidavit of Biddy Lindsay, 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.
[21] 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 Rory and Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].
Land Claim Report
[22] The native title party has sought to rely on the findings of Toohey J in his capacity as an Aboriginal Land Commissioner in the Daly River (Malak Malak) Land Claim Report (No 13). In particular the native title party seeks to rely on certain findings by His Honour with respect to the entitlement to forage, and also specific sites and their significance.
[23] It is pointed out (OSC at para 32k) that the area of the proposed tenement falls outside the land and waters the subject of the inquiry by Toohey J (“the claimed land”). It is estimated to lie approximately one kilometre to the south of the claimed land.
[24] The native title party also sought to rely on the findings of His Honour with respect to the inquiry into Exploration Licence 22495. In that instance, the proposed tenement was located just to the north of the claimed area. Nevertheless the findings I made in that inquiry about the relevance of the findings of Toohey J are of direct applicability to this inquiry, and I adopt my findings in Kathleen Parry & Ors/Troy Resources NL/Northern Territory DO01/84, unreported, 24 May 2002 at [35] – [36]. I have found of interest, comments by His Honour on the location of specific estates outside the Land Claim area, and, for the record, I have taken Toohey J’s comments in that regard into account during this inquiry.
Legal Principles
[25 ] 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.
[26] 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
[27] The only direct evidence of community or social activities advanced by the native title party is found in the Affidavit of Biddy Lindsay. Ms Lindsay lives at the Daly River community which is only a short distance (about one kilometre) from the proposed tenement. She deposes that the wetland area near Fish Billabong is her own country, and that “we” take mussels from the Billabong. Nevertheless her sons have told her to put the mussels back because of lead poisoning. This, it would appear, is not because of any alleged mining or exploration activity, but due to the illegal hunting of magpie geese by shooters. Ms Lindsay also deposes that she fishes at Fish Billabong and obtains turtles and lilies. Reference is also made to a little lagoon, Nimuni, which is also visited.
[28] Ms Lindsay also deposes that Floodwood Billabong is used for hunting turtle, duck and goanna. People travel to this Billabong from Fish Billabong, either by walking or driving. On the way people collect plums or fruit and kangaroos and wallabies are hunted. When Ms Lindsay travels with her siblings to Elizabeth Downs, they stop at Floodwood Billabong on the way back for lunch.
[29] Generally, she deposes that “some people” from the Daly River community, Port Keats or Peppiminarti, go onto the proposed tenement on a daily basis for hunting and fishing. She further deposes that “some people” take turtles and sell them at Port Keats and that “some people” ask permission before going to the subject area.
[30] Fish Billabong is situated in the extreme north western portion of the proposed tenement in that part which could be described as the “panhandle”. It is, however, mostly located outside of the subject area, with only around 25% of the total area of the billabong actually within the proposed tenement.
[31]The small lagoon, Nimuni, is mostly located outside of the proposed tenement, with a small section within the subject area. It is in the northernmost portion of the panhandle section.
[32] Floodwood Billabong is in fact the recorded site Pindark, and is located in the northern section of the proposed tenement near to the road to Elizabeth Downs.
[33] With respect to fishing and hunting activities at Fish Billabong, Ms Lindsay deposes that “we” go in the dry season. It is not clear who she is referring to, although later in her Affidavit mention is made of her sister and brothers. Moreover, as her sons have advised her not to eat mussels from the Billabong, it would be reasonable to infer that her children accompany her to this area from time to time.
[34] The frequency of her visits to Fish Billabong, however, are problematic. She deposed her Affidavit in December 2001, yet says “I have been there this year”. In other words, during the course of 2001 it would seem that Ms Lindsay only visited the Billabong infrequently. This is said in the context that she can no longer cross the Daly River from her community to fish etc at the Billabong because: “too much crocodile: too much dirty water”. It would appear, then that while activities at Fish Billabong played an important part in Ms Lindsay’s earlier life, her visits to this area are now much less frequent and the utility of the Billabong for certain activities (e.g. mussel collecting) has been diminished by the intervention of contemporary events (shooting of birds, and consequent alleged pollution of the water).
[35] In comparison, Ms Lindsay deposes that she visits Floodwood Billabong with her sister and brothers during the Dry season, and that she goes on these trips about once a month. Further, it would appear that she stops at the Lagoon for lunch with her siblings whenever they go to Elizabeth Downs for hunting turtles and fishing.
[36] The statements of Ms Lindsay about other people accessing the licence area on a daily basis are not of much assistance to the Tribunal. There is no evidence as to who these people are, let alone whether they are native title holders. In fact when Ms Lindsay says that some people ask her permission before venturing on to the proposed tenement area, it is open to infer that the reason that such permission is being sought is that they are not native title holders of the subject land and waters. It would appear that at least some of the activity referred to is commercially based, especially when it is pointed out that some people travel on to the subject area to hunt turtles for sale at Port Keats.
[37] There is no evidence that any recent exploration activity has had a negative impact on the community or social activities of native title holders. Indeed Ms Lindsay expresses implied support for exploration (as distinct from mining). She deposes: “It’s all right if they’re looking for samples, but when it comes to mining, they have to talk to us how they look after the water.”
[38] Ms Lindsay does recount an incident that occurred in the 1930s when a copper mine released polluted water in the lagoons causing both the death of fish and animal life and making the local people sick. No doubt, the legacy of the unfortunate and environmentally unsound practices of previous miners in the distant past is a continuing unease about the impact of mining on the land and (especially) the waters of the area. In that regard Ms Lindsay says “that’s why we don’t like mining in that country”. It is a sentiment that is readily understandable having regard to what occurred many decades ago.
[39] Nevertheless it is the case, that the proposed tenement has been the subject of quite extensive exploration activity over the past few decades. It would appear that such exploration activity has had no negative impact on the community or social activities of the native title holders. Indeed, the biggest impact on limiting access to the lagoons is the increase in the number of crocodiles in the Daly River and the fact that the River is now “dirty”. There is no suggestion that the changes to the Daly River have been caused by any exploration activity.
[40] Insofar as the extensive exploration activity in this area has had, it would appear, a very minimal impact on the community or social activities of native title holders, it is then understandable why Ms Lindsay says very clearly that “it’s all right if they’re looking for samples”. I take it from that, that she perceives no particular problems with exploration, or low impact activity, but does express concern and require consultation if the activity would result in mining.
[41] In this regard it is relevant to point out that exploration licences are granted in the Northern Territory subject to a number of statutory conditions made pursuant to section 24A of the Mining Act. The first two of these conditions are set out below:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular, by ameliorating:
(a)any interference directly with the carrying on of community or social activities of registered native title claimants or holders;
(b)any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out its activities in such a way as to minimise the disturbance of the environment of the licence area, in particular by minimising:
(a)interference with the use of the land by other persons;
(b)the disturbance of flora, fauna and other natural resources;
(c)pollution, including soil, water and atmospheric pollution;
(d)the incidence and effects of soil erosion.”
[42] There are a further 17 conditions which are aimed at prohibiting activities as diverse as the bringing of firearms or traps onto a licence area, killing wildlife (Cl 15), unauthorised use of fire (Cl 17), or obtrusive clearing or disturbance of vegetation, particularly with respect to mature trees and vegetation along watercourses (Cl 9). Importantly, an explorer is required to convene a meeting with registered native title claimants or holders prior to the commencement of exploration activities and have regard to representations made regarding any aspect of proposed exploration activities which raise concerns (Cl 18).
[43] 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 is 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 section 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.
[44] The Tribunal notes that the grantee party made this statement in its Contentions (Gr1 at p.1): “(4) The Grantee Party undertakes to closely liaise with the traditional owners of the land affected by the Licence and involve those traditional owners in the exploration of the land the subject of the Licence.” The Tribunal notes the clear intention of the grantee party to closely liaise with native title holders and involve them in the proposed exploration activities.
[45] The key decision on the proper interpretation of section 237(a) is that of French J in Smith v Western Australia (2001) 108 FCR 442. His Honour pointed out that the concept of interference in section 237(a) is to some degree evaluative, and that the interference contemplated must be substantial in its impact upon relevant community or social activities. Trivial impacts or impacts that are not relevant to the carrying on of the community or social activities are outside the scope of the type of interference contemplated by section 237. Further, His Honour also said that the evaluation is contextual. The Tribunal is entitled to take into account other factors which impact upon social or community activities. He said (at 451): “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.”
[46] In this context it must be borne in mind that the proposed tenement is almost entirely comprised of land and waters that are part of PPL 1005. Only a tiny proportion of the proposed tenement on the eastern boundary falls within CPL 815. The licensee of PPL 1005 together with any employees and agents of the licensee have a right, pursuant to the terms of the relevant lease and the law governing that lease, to carry out such activities as may be allowed. To the extent that a pastoral licensee (and persons properly authorised by the licensee) lawfully exercise rights granted, such activity prevails over any native title rights and interests – see section 44H. As Toohey J said in Wik Peoples v Queensland (1996) 187 CLR 1 (at 133): “If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.” Consequently the Tribunal is entitled to take into account when assessing the likelihood of interference by the grant of the exploration licence, the fact that any community or social activities of native title holders have been, and will continue to be, subject to ongoing impacts by the lawful activities of the holders of the relevant pastoral lease.
[47] In this matter the Tribunal has been presented with evidence that there are some community and social activities which occur on the proposed tenement. It would appear that those activities are carried out mainly (but not always) during the dry season and are mainly (but not entirely) focused on a number of billabongs situated in the northern section of the licence area. The number of native title holders who carry out these activities is unclear, although I am prepared to infer that they include Biddy Lindsay, her children and her siblings. Possibly other members of the claim group also engage in these activities, however the number, the frequency and the nature of such activities is not clear from the material before the Tribunal. In short, while accepting that the proposed tenement is used by some native title holders for community and social activities, it would appear that those activities are not extensive, are localised, and mainly occur at certain times of the year. Moreover, evidence of native title holders other than the immediate family of Ms Lindsay engaging in these activities is scant. It is not clear to what extent members of the wider claim group use this area and what significance it and those activities have for them.
[48] The evidence before the Tribunal also discloses that previous exploration activity has not, apparently, interfered with the community or social activities deposed to, either on the licence area or areas adjacent to it. If any such interference or disruption has occurred, then no evidence of it was brought before this inquiry. Further, Ms Lindsay specifically deposes that she is not opposed to exploration per se, although she does outline her concerns about mining based on unacceptable mining practices of many years ago. One would have presumed that if Ms Lindsay was either opposed to exploration occurring on the proposed tenement, or had any previous unsatisfactory experience with mining exploration in this area, she either would have said so or at least expressed concerns about the granting of the proposed tenement. In fact the very limited evidence before the Tribunal leads me to the contrary conclusion. Namely, that Ms Lindsay does not oppose exploration activity per se and that recent exploration activity either has not disrupted community or social activities, or at least has had no appreciable effect.
[49] I have also had regard to the stated intention of the grantee party to liaise with and involve native title holders in exploration activities. Insofar as there is an intersection between exploration activities and community or social activities, the stated modus operandi of the grantee party should go some distance in ensuring that this intersection does not result in major interference.
[50] In summary, while accepting that there are community and social activities carried out on the subject tenement, I am satisfied having regard to the nature and frequency of those activities, the intention of the grantee party, the regulatory regime in force, the exercise of rights by the pastoral licence holder and the absence of any evidence of previous exploration activities negatively impacting on the native title holders, that there is no real likelihood that the grant of the proposed tenement would be likely to result in direct interference within the meaning of section 237(a).
Section 237(b) – Areas or sites of particular significance
[51] There is no evidence before the Tribunal of any areas or sites or particular significance within the proposed tenement or immediately adjacent to it. Although there is a generalised assertion in the Form 4 that this whole area is afforded great significance by native title holders, no primary evidence has been adduced substantiating this.
[52] Ms Lindsay makes no reference in her Affidavit to any areas or sites of significance. Indeed when referring to Fish Billabong and Nimuni she says: “There are no Dreamings for those places”. Further, although she makes specific reference to Floodwood Billabong (Pindark), which is a recorded site, she only does so in the context of a place where turtle, duck or goanna are hunted. There is no reference to it being a place of particular significance to native title holders.
[53] If a site is not disclosed to the Tribunal, then there is no basis for an inquiry pursuant to section 237(b). As Deputy President Franklyn pointed out in Chubby Jones & Ors/Western Australia/Taipan Resources NL WO99/621-622, unreported, 1 November 2000 (at p.9): “No question can arise as to the likelihood or otherwise of interference of such a site unless there is evidence of its existence.”
[54] As the native title party has produced no material regarding any identified area or site of particular significance there is no evidentiary basis for conducting a section 237(b) inquiry.
Section 237(c) – Major disturbance to land or waters
[55] It is clear that there is some concern about mining on the area of the proposed tenement. Biddy Lindsay recounted how copper mining in the region in the 1930s resulted in the pollution of lagoons resulting in the death of fish and crustaceans and illness to persons who ate any animals having contact with this water. As the native title party points out (OSC at para 95) the experience of mining in previous years has given rise to a generalised concern about water pollution
[56] The native title party also drew to the attention of the Tribunal, some suggested special features about the environment of the licence area (OSC at para 92):
“There are special physical circumstances such that exploration activity of the type identified could result in major disturbance to land or waters, and that rehabilitation will not be adequate to remedy the major disturbance:
a.There are several lagoons on the licence area, including Fish Billabong, Nimuni, Floodwood Billabong [affidavit of Biddy Lindsay, and map annexed];
b.The Daly River flows within half a kilometre of the licence area Billabong [affidavit of Biddy Lindsay, and map annexed].”
[57] The government party contended (GPCR at para 83) that there was no evidence of any sensitive geological or environmental areas in the proposed tenement and reiterated (at para 84) that the subject area is within a current pastoral lease which allows all form of pastoral activities (ie the creation of tracks, fence building, dam building, movement of stock etc). The Tribunal agrees with the contentions of the government party. The mere fact that there are lagoons or billabongs on a proposed tenement, or that a major river is located a short distance outside its boundary, are not special circumstances that would lead to an inference of major disturbance. If a native title party wished to contend that the presence of waters on or near to a proposed tenement raises special considerations, then it needs to explain the nexus between the grant of the tenement, the waters and the risk of disturbance. Simply highlighting that there are watercourses on a tenement, of itself, does not assist the Tribunal. Obviously in certain circumstances, having regard to the proposed exploration activity, previous exploration practices, the use made of the waters etc, it could be demonstrated that there is a likelihood of major disturbance under section 237(c). However, that is not the case in this inquiry.
[58] The grantee party made these submissions (Gr 1 at pp 2-3):
“(16) The Grantee Party has a sound record in working with indigenous peoples.
(17) Disturbance of the land will be kept to the bear (sic) minimum in the determining of the geological prospectivity of the land the subject of the Licence.
(18) The Licence is peripheral to the main area of interest to the Grantee Party....
(21) Exploration upon the Licence will result in minimal impact upon the surface of the land and upon the local communities.”
[59] It is clear that this region of the Northern Territory has been subject to extensive exploration and mining activity for many decades. This is graphically illustrated by the evidence of Ms Lindsay who recounts the ecological and societal damage caused by copper mining some seven decades ago. Moreover, there is some general discussion of exploration and mining activity in this general area in the Report of Toohey J ( see pp 73-75).
[60] There is no material before the Tribunal highlighting any recent disturbance to land or waters caused by exploration activities. Indeed, it could be inferred that despite the evidence of exploration in this area over the past two decades, it has had no appreciable impact on the environment having regard to the evidence of Ms Lindsay, that this area is the subject of fairly extensive fishing, hunting and recreational activities. The only adverse environmental impact mentioned is as a result of alleged lead poisoning in the lagoons caused by discharged lead pellets from hunters shooting magpie geese.
[61] It is of note that Ms Lindsay does not express any concern or opposition to exploration taking place. In fact she specifically says that its “all right if they’re looking for samples”, and draws a distinction between exploration and mining activities.
[62] I set out in Kathleen Parry & Ors/Troy Resources NL/Northern Territory DO01/84 the general impact of the regulatory regime in force in the Northern Territory as well as the relevance and worth of identical evidence presented by the grantee party, and I adopt my reasoning at [82] – [84].
[63] I am satisfied that the legal regime in place in the Northern Territory, together with the stated intentions of the grantee party, will in combination address any concerns of the native title party. More particularly, I am also satisfied, having regard to the lack of any material suggesting that previous exploration activity has resulted in any major disturbance to land or waters, the legal regime governing exploration activity, the evidence of the grantee party and the apparent lack of concern by Ms Lindsay about exploration (as distinct from mining) activity, that the grant of the exploration licence would not be likely to result in major disturbance to land or waters within the meaning of that term in section 237(c).
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22498 to Troy Resources NL is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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