Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster/Troy Resources NL/Northern Territory
[2002] NNTTA 89
•24 May 2002
NATIONAL NATIVE TITLE TRIBUNAL
Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster/Troy Resources NL/Northern Territory, [2002] NNTTA 89 (24 May 2002)
APPLICATION NO: DO01/84
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster (Native Title Party)
- and -
Troy Resources NL (Grantee Party)
- and -
Northern Territory of Australia (Government Party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 24 May 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 – evidence – Aboriginal communities - recorded or registered sites – previous exploration/mining activity – relevance of Land Claim Report - legal principles – whether act directly interferes with community life – whether act interferes with areas or sites of particular significance – whether there is likelihood of major disturbance to land or waters – protection under existing legislation – grantee party’s intentions – 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:Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motto Sakurai DO01/70-71, 17 April 2002, Deputy President Franklyn
Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, 27 March 2002, Deputy President Franklyn
Little v Western Australia [2001] FCA 1706
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002, Member Sosso
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, 1 February 2002, Member Sosso
Rory and Dixon/Northern Territory/Astro Mining NL DO01/110-111, 10 May 2002, Deputy President FranklynSmith v Western Australia (2001) 108 FCR 442
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 22495 (“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 36 blocks (approximately 120.2 square kilometres) and is comprised of the following Perpetual Pastoral Leases: PPL 1004, known as “Tipperary” and PPL 1006 known as “Litchfield”.
[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 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 named 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 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, 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 26 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
Affidavits of Biddy Lindsay and Marjorie Foster
[8] The native title party additionally submitted Affidavits from Biddy Lindsay and Marjorie Foster. The Affidavit of Biddy Lindsay was affirmed before Mr David Shoobridge, a Justice of the Peace on 7 December 2002, 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 ELKA 22495. I have seen a map of the area of the ELA. Now produced and shown to me marked “BL-22495” is a map of the ELA and the surrounding area.
3. I live at Nauiyu(sic), or Daly River Community, near Daly River Crossing, in the Northern Territory. The area of ELA 22495 is on the main sealed road between Daly River and Adelaide River. It is about 20 kilometres from Naiyu.
4. Marion Hill is about two kilometres south of the ELA area. I am worried about Marion Hill, Tjabinji in Malak Malak language. It’s too dangerous. I’m worried about all people including the miner. I don’t want people to go in there; it’s a dangerous place.
5 If you do go in there, you know the country where you are walking and looking. But, if you go near that hill, there is a rhyming noise in your head, and you won’t be able to hear anything else. They can’t hear you and you can’t hear them. That hill will change your nature. You will lose your car and not get away from there. When you are walking in there you will lose your way. That hill is too dangerous.
6. When I was a teenager there was a boy who was 11 or 12 who went there looking for bats, and got lost there. He was missing all night. My father was one of the people who went looking for him. They took two well trained hunting dogs looking for him. They went to the hill and made smoke and sang. They told the country that they wanted to go near that hill because they were looking for the child. They gave one of the dogs the boy’s shirt to smell, and sent him off to look for him. The dog could not find him. The second dog was sent out and found the boy’s horse first, straight away. My father asked the country if he could find that boy. Father felt in his heart a relaxing, a freedom. Then they went back to get the boy. He was screaming that he was a different person. Later when he was 30 that boy was sick. He went back to the same place.
7. That place is too dangerous to go and look. I’m saying this because I saw the boy get lost.
8. People went out camping with a baby on that Litchfield country, near Litchfield Hill, and didn’t know how to deal with that spirit. Marion Hill talks to Litchfield Hill; Marion Hill asked Litchfield Hill to kill the baby. That baby was very sick. The white people and the doctor could not do anything for him. The right person can fix you up, my sister, Kitty, knows how to fix you up. She got the right tree, Kumera. She used the leaves to circle round him with smoke. That night he went to sleep. Now he is sleeping better. He goes to school now.
9. I’ve got a song about that country. Different people have to paint me up. I do that song so the power there does not attack.
10. That danger goes the same distance as from my house at Daly River to the police station, about three kilometres. The dangerous area might go into the ELA area.
11. There is water on top of that Marion Hill. My brother Albert saw it from a helicopter. I have not been there.
12. If you are walking on Kilfoyle Plains in the ELA area, you’ll be all right, but don’t lose the track. If you get lost, the spirit will find you. The Hill will show you good looking country, with flowers to attract animals like fruit bats. You will go towards the Hill and get lost.
13. Marion Hill is a hard place to get to if you are trying to. If you walk towards it, you don’t get close. Might be the hill is moving away from you.
14. Kilfoyle Creek is all right. It’s a good place to get tucker. When we go past we tell Marion Hill we are looking for tucker: ‘We are not going to come and touch you’. When we do that the country is not miserable. I go hunting on Kilfoyle Creek on the Land Trust area.
15. We used to use Litchfield Road so we could go hunting and fishing down at Moon Billabong/Alligator Point on the Daly River on Baradjap country. We used the road up to Litchfield Station to go camping for holidays a long time ago.
16. It is OK for the mining company to go looking in most of the ELA area. They can’t come across to near Marion Hill.
17. It’s wet country there on the ELA area. It is still water, not running water.
18. Back in the thirties, at a copper mine, a few kilometres south of the ELA 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 ate 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.
19. 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.
20. 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.”
The Affidavit of Marjorie Foster was affirmed before Mr Paul Walsh, a Commissioner for Oaths, on 27 March 2002. It 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 Kamu.
2. The area of the application includes the area of ELA 22495. The ELA area is Kamu country. I have seen a map of the area of the ELA. Now produced and shown to me marked “MF 22495” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. I grew up and lived in Darwin. I was stolen generation. But after I grew up and got married, I went back there to my country. I lived for a time out there with my husband until he died. I have not been able to live out there since I got diabetes in my 60s, but I still go out with my family on weekends. I go out there most weekends. Sometimes I stay one week, two weeks at the house.
4. The house is located just south of the ELA. My son Mickey lives there. My husband built it. My husband is buried near the house on my country.
5. We go hunting all through the Kilfoyle Plain. When we go there we get goose, duck, yabbies, prawns and turtle. We go camping in the plain, round Kilfoyle Creek. There is a big waterhole with crocodiles. All the boys know the waterhole. We get fish and prawns in the billabong. We eat everything there, and when we’re finished, we go home. We burn what’s left over in the fire.
6. We went in late November last year. We camped out there one night. We sat down and the fished for prawns and turtle.
7. Sometimes the boys go in the water and fish with a net, but there’s crocodile there. The boys have a gun licence and shoot kangaroo when we’re camping there. They go out hunting any time on the ELA area. We get all our tucker, all around there, anything you can eat.
8. When we go camping at Kilfoyle Waterhole, we go everywhere. We go to all different areas. We go camping at different places. But we can’t go in the Wet; it’s all flooded. Some people from the Daly River Mission also go there.
9. The country is only good for Aboriginal people looking for bush tucker. My son Francis has been going out there in the bush and driving around on it in his old bomb. They camp there, eat there, and come back when they’re full up. They get lily roots, mussels from the mud, goanna (any kind, little one, big one), kangaroo, fish turtle (long neck or short neck), wild pigs. Turtle eggs, they get them from the mud there.
10. We go all around on Kamu country, hunting, and camping, right up to the bottom edge way of the hill country. Me and all the kids go out there all the time. We went last year, before the rains set in.
11. My son, Francis Storer, knows the country in and out. I’ve got six sons. The company should ask the boys. All them sites and things come under us Kamu. They go walking there. They should take the boys there to show them where they can go.
12. Marion Hill, just to the south of the ELA, is an important men’s site. It is poison country; important King Brown Snake country. There are lots of king brown snakes there. Women are not allowed to go there. It is a dangerous place. All the ancestors said so. Its Aboriginal name is Jebenyi. We’re not allowed to mention its name at night.
13. Another site in the vicinity is Wani Wuwen (its name in Malak Malak language), which is called Dirk Kuwen in Kamu language [AAPA site 5070-13]. This is a Diarrhoea Dreaming site. This is also a dangerous place.
14. I worry about it, what might happen to the country.”
[9] Both deponents state that they are members of the native title claim group. The native title party points out that Ms Foster is an Objector and an applicant in the Fish River native title determination application (OSC at para 31). The situation of Biddy Lindsay is more problematic. In her Affidavit she does not indicate what her status is within the native title claim group, her authority to speak on its behalf, or indeed, on behalf of the particular land and waters that comprise the proposed tenement. This issue was specifically raised by the government party (GPCR at para 91), who also referred the Tribunal to the decision of R D Nicholson J in Little v Western Australia [2001] FCA 1706.
[10] It is the case that Biddy Lindsay says that her brother is Albert Myoung, who is one of the Applicants. Moreover the native title party contended that she is a senior member of the claim group (OSC at para 31). It may well be that Biddy Lindsay is a senior member of the claim group and that she has the status, authority and authorisation to speak on behalf of the claim group. However if that be the case then she should depose to that fact. It is not sufficient that this assertion is made in contentions or is to be inferred from unrelated material. For some time now the Tribunal has been re-iterating the evidentiary implications of Little v Western Australia for objectors. While I have proceeded on the basis that both deponents have the authority to make the statements that they have, I again bring to the attention of legal representatives who appear before this Tribunal the evidentiary risks that are faced when Affidavits or Witness Statements do not address the type of issues clearly canvassed by R D Nicholson J.
Aboriginal Communities
[11] There are no Aboriginal communities located on the area of the proposed tenement. In the Form 4 (at paragraph 4) it is said that there are two Aboriginal communities in the vicinity of the tenement, and that members of the claimant group reside there. The first is Wooliana which is said to be approximately 8 km south-west of the proposed tenement, and the second is Daly River (Naiyu) which is approximately 16 km south of the proposed tenement.
[12] The native title party also drew to the Tribunal’s attention areas held and occupied by members of the native title claim group, including the freehold land held by the Malak Malak Aboriginal Land Trust and a house located to the south of the proposed tenement, approximately 2 km from Marion Hill (OSC at para 40).
[13] The government party made these submissions (GPCR at paras 56-57):
“ 56. … The reference is to community activities of native title holders, not to a ‘community’ in the sense of a small township. The location of nearby townships is not relevant to the inquiry before the tribunal. The location of nearby townships is only relevant if leading to an inferential conclusion that a significant proportion of members of the township are ‘the holders of native title’. For the information to be relevant a further inference need (sic) to be drawn that the members of the township conduct community or social activities within the Exploration Licence area. Naiyu is (on the affidavit of Biddy Lindsay) 20 km distant from the EL area. It had a population of 430 as at 30 June 2001. The objectors provide evidence of only one of these (Biddy Lindsay) residents as being in the native title claim group. The Objectors’ material only indicates the location of residence of one other member of the group, Marjorie Foster. Ms Foster resides in Darwin. The other community referred to in the Objectors’ Contentions, Wooliana, had (at 30 June 2001) a population of 18. There is no indication that any members of the native title claim group reside at Wooliana.
57. Similarly, the reference to the Malak Malak Aboriginal Land Trust is also misconceived or irrelevant or both. Although the Exploration Licence area 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 Land is Wooliana. The proximity of a Land Trust area itself is not probative of the existence of community or social activities of the alleged native title holders within the affected area.”
[14] In essence, the contention of the government party is soundly based. Section 237(a) is directed towards the community or social activities of native title holders. The fact that there are communities on or in the vicinity of a proposed tenement is not relevant to a section 237(a) inquiry unless there is evidence that holders of native title reside in those communities, or otherwise have a connection with them. In addition, the fact that land adjoining a proposed tenement is of a particular tenure, of itself does not assist the Tribunal. It may well be that the existence of a particular tenure lends itself to native title holders carrying on community or social activities, but if that be the case, then the Tribunal should be provided with evidence of those activities.
[15] What the government party does not allude to, however, is that Marjorie Foster deposes that her son Mickey lives in the house located just south of the proposed tenement, that her husband built it and that he is buried near it. Moreover she deposes that she often visits the house and goes there on weekends with members of her family.
[16] Conversely, apart from the fact that it is alleged in the Form 4 that members of the claim group reside at the Wooliana and Naiyu communities, the only direct evidence of this is the statement of Biddy Lindsay that she lives at Naiyu. There is no other evidence of any other member of the native title claim group living in these communities, and if they do, how many, for what periods and some identification of these people.
[17] While I am prepared to assume, for the purpose of this inquiry, that members of the claim group (apart from Biddy Lindsay) reside in both communities, the absence of any direct evidence of this state of affairs is not helpful.
Recorded or Registered Sites
[18] There is only one site recorded/registered by the AAPA within the area of the proposed tenement, namely 5070-35, which is described by the AAPA as “Tumjiji”. This is a registered site located in the south eastern corner of ELA 22495 which is a billabong also known as “Noltenius Billabong”.
[19] There are numerous recorded, and some registered sites located to the south of the proposed tenement, particularly in the vicinity of the Daly River and surrounding the community of Wooliana.
[20] Apart from 5070-35, the sites located in nearest proximity to ELA 22495 include 5070-83 adjoining the eastern border. This is a recorded site (Mangulwa – a camping place, part of a creek to the north of the Daly River Road) which only has an AAPA status of 5. Adjoining the southern boundary is a recorded site 5070-81 (Wurujambarrla – a creek area in close proximity to the Daly River Road) which also has only a status of 5. Finally adjoining the western border is 5070-80 (Ankalawu – two billabongs that are part of the Kilfoyle waterhole system) which again is a recorded site with a status of 5.
[21] Significantly, neither in the Affidavits of Biddy Lindsay or Marjorie Foster, or in the Form 4, are any of these registered or recorded sites specifically spoken of as sites of significance. While reference is made to the registered site in the Form 4, there is no attempt made to explain whether it is a site of particular significance within the meaning of that term in section 237(b).
[22] There are extensive references to Marion Hill in the Affidavit of Biddy Lindsay, and it is also mentioned by Marjorie Foster. Marion Hill is a registered site located approximately 3 kilometres south of the proposed tenement. It is very clear that Marion Hill is a site of great importance to both deponents, and is a site of particular significance.
[23] Marjorie Foster also refers to Wani-Wuwen (Dirk Kuwen) – 5050-13 - which she identifies as a Diarrhoea Dreaming site. It is registered by the AAPA, and is described as a “billabong and surrounding area located approximately 500 m east of the Daly River Road and Hayward Creek).” Ms Foster identifies herself as a Kamu woman. In the Daly River (Malak Malak) Land Claim Report, Toohey J makes reference to the Kamu, and specifically identifies the dreamings of the Kamu as including “diarrhoea, white ant, dingo” (p 16/para 77). There is also an extensive discussion in this Report about the Kamu (pp 24-29). It is not necessary to traverse that material in this inquiry.
[24] I am not prepared to find that Wani Wuwen is a site of particular significance within the meaning of section 237(b), while it is referred to by Ms Foster, and is said to be a dreaming site and a dangerous place, it is not clear that Ms Foster has authority to speak for that site, and its particular significances to the Kamu. The fact that it is not referred to by Biddy Lindsay, even though Wani Wuwen is a Malak Malak name for it, is another indication that while it may be a site of significance it does not have the importance that Marion Hill obviously has.
Previous Exploration Activity
[25] The whole of the area of the proposed tenement ELA 22495 has been subject to numerous exploration and mining grants by the Northern Territory over the past 40 years. Outlined below are details of previous mining and exploration tenements as supplied by the government party:
Current: Mineral Lease Northern MLN 567
Previous: Mineral Lease B (Waggaman) – ML 272B
Authority to Prospect - AP 954
Extractive Authority – EA 240Mineral Claim (Northern) – MCN 860, 861, 3689, 3690, 3691, 3692, 3693, 3694, 4067, 4068, 4069, 4076, 4080.
Exploration Licence – EL 356, 373, 1356, 1359, 4068, 4704, 5111, 5295, 5336, 5337, 5909, 6853, 7308, 7930, 8606, 9062.
[26] Materials and maps supplied by the government party indicate that the proposed tenement has been the subject of extensive exploration activity in the eastern and southern portions, although there would appear to have been very little exploration activity in the western and northern portions.
[27] The company reports submitted by explorers indicate that in 1972-1973 percussion and diamond drilling was carried out pursuant to EL 356 as well as auger sampling. Between 1979-1982 percussion and diamond drilling and ground radiometric, magnetic, radon and seismic surveys were conducted pursuant to EL 1356. During the same period stream sediment sampling, diamond drilling and ground radiometric, radon and seismic surveys were carried out pursuant to EL 1359. Further stream sediment sampling was carried out pursuant to EL 4068, 5295, 5909 and 8606 in 1983, 1988 and 1997 respectively. Aircore and rotary airblast (RAB) drilling was conducted pursuant to EL 5337 and EL 7930 in 1994 and 1995 respectively. Rock chip sampling was the focus of exploration activity in EL 7308 between 1992 and 1994. Finally in MCN 4067-4069 and 4080, the area was the subject of percussion drilling, aircore drilling and rock chip sampling during 1991.
[28] As mentioned above, the proposed tenement also has an extant mining tenement situated within its outer boundaries – MLN567. This tenement is located in the north eastern portion immediately to the north of Skewes Road.
[29] In its Statement of Contentions the grantee party made these 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 substantial 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
[30] 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 made this statement: “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
[31] In addition to the Affidavits of Biddy Lindsay and Marjorie Foster, the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy as well as the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.
[32] I have previously considered this material in a number of inquiries as has Deputy President Franklyn. 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 refer to, and 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
[33] The native title party has sought to rely on certain findings in a report by Toohey J in his (then) capacity as an Aboriginal Land Commissioner appointed pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976. The Report in question is the Daly River (Malak Malak) Land Claim Report (No 13) which was presented on 12 March 1982. Evidence was given at hearings which began in Darwin on 2 October 1981 and then at Daly River, and again at Darwin later that month and into November 1981. In short the evidence in question was provided more than two decades ago.
[34] The area of the land claim being considered by His Honour did not encompass the land the subject of the proposed tenement. The land under claim borders the extreme southern, south eastern and western boundary of the proposed tenement. The fact that the proposed tenement falls outside land and waters that were being directly considered by Toohey J does not mean that his findings are not of relevance and assistance to this inquiry. Nevertheless, it is a matter that needs to be noted.
[35] His Honour made various comments on, and findings with respect to, the entitlement to forage. With due respect to the native title party, findings on the entitlement to forage that are more than 20 years old are of potentially marginal assistance to an expedited procedure objection inquiry. Information on the foraging activities of native title holders can be of great assistance, particularly with respect to section 237(a). However, in this instance:
(a)the comments of His Honour are not extensive;
(b)they relate to evidence received more than 20 years ago; and
(c)primarily relate to land and waters that lie outside the boundaries of the proposed tenement.
It needs to be again emphasised that section 237(a) is directed towards contemporary social or community activities. The task given to the Tribunal is to ascertain what are the current social and community activities of native title holders and then ascertain the likelihood of those activities being interfered with by the grant of the relevant tenement. It is not an exercise that is focused on past activities by native title holders, no matter how relevant that evidence may be for the ultimate ascertainment of the existence of native title by the Federal Court. A section 237 inquiry has a much narrower focus, and it is not advanced by the submission of evidence which, though of historical and general interest, is basically not germane to the task at hand.
[36] I have read the whole of this Report very carefully, and suffice it to say, I do not think that it materially advances the position of the native title party. Certainly the observations of Toohey J on the entitlement to forage do not bolster the native title party’s contentions with respect to section 237(a).
Legal Principles
[37] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
[38] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
Section 237(a) – Interference with the carrying on of community or social activities
[39] As previously pointed out the findings of Toohey J are of no particular assistance to the native title party. His Honour’s comments (at paragraphs 124 and 191) on the entitlement to forage and of actual foraging, seemingly relate to land and waters outside of the licence area. The native title party in its contentions (OSC at para 43) only refers to the entitlement to forage in the general area of the proposed tenement with respect to an extinct local descent group 14. Toohey J noted that this descent group became extinct upon the death of Polly Nedey (which was a few years before the 1982 Report). The fact that the members of a descent group that no longer exists may have had an entitlement to forage in the subject area, is, it would seem, of no assistance to the Objectors in this matter.
[40] In her Affidavit, Biddy Lindsay deposes that she goes hunting on Kilfoyle Creek, which as the native title party points out (OSC at para 43), is located both within and outside the proposed tenement. However what is not pointed out, is the rest of the sentence of Ms Lindsay, who limits her statement about hunting on Kilfoyle Creek with this qualifier “on the Land Trust area”. It is clear that the hunting she deposes to on Kilfoyle Creek occurs on that portion of the Creek located within the Malak Malak Aboriginal Land Trust and not within the subject tenement.
[41] Ms Lindsay also refers to previously using the Litchfield Road to go hunting at Moon Billabong/Alligator Point on the Daly River. Again the particular hunting at Moon Billabong is outside the proposed tenement, and the only relationship to the subject area is the use of the Litchfield Road. She also mentions using the Road to go to Litchfield Station for camping. Again Litchfield Outstation is located a few kilometres from the northern boundary of the proposed tenement. If any camping occurred in the subject area, it is not addressed in the Affidavit.
[42] In addition, the activities described by Ms Lindsay clearly occurred in the distant past. She deposes that camping at Litchfield Outstation occurred “a long time ago” and she deposed that “we used to use Litchfield Road.” There is no reference to any contemporary activities occurring in this area, rather, it would seem, the activities being described are historical. Further, Ms Lindsay does not refer to any contemporary activities by other members of the claim group. If such activities take place then no evidence has been produced to that effect.
[43] Ms Foster deposes that she lives in Darwin, not having resided on a permanent basis in the locality of the proposed tenement since the 1960s. Nevertheless she does visit the area most weekends, and stays at the house built by her husband (located south of the proposed tenement) for up to two weeks at any given time.
[44] Particular mention is made of hunting, fishing and camping through the Kilfoyle Plains around Kilfoyle Creek. Particular mention is made of a big waterhole where Ms Foster and her family fish and hunt for prawns and turtles. In addition to her family, she also refers to people from the Daly River Mission going there.
[45] Ms Foster deposes that her son Mickey lives in the house south of the proposed tenement, and that another son (Francis Storer) regularly goes out onto that country for traditional hunting, gathering and camping.
[46] The last specific visit that Ms Foster deposes to is during late November 2001, when she and members of her family camped out one night and fished for turtles and prawns. As this area is subject to flooding during the Wet Season, the fact that no other camping or like activities were referred to since that time is not surprising. This view is reinforced by Ms Foster’s statements that (at para 10) “We went last year, before the rains set in.” and at (para 8) “we can’t go in the Wet; it’s all flooded.”
[47] I have no reason to doubt that there is quite extensive fishing, hunting, gathering and camping activities carried on by native title holders over the area of the Kilfoyle Plains. In particular, I accept that Ms Foster, her children and other persons from the Daly River Mission regularly engage in such activities.
[48] One difficulty with this evidence is that there is no reference to these activities actually occurring on the proposed tenement. Every reference to camping, hunting etc relates to areas that either fall outside the proposed tenement, or which are so broadly described that it is not possible to determine if they occur on the proposed tenement.
[49] The house where Ms Foster stays and her son Mickey lives, is located to the south of the proposed tenement. The waterhole on Kilfoyle Creek is not named or identified, but the map attached to her Affidavit has a “Kilfoyle Waterhole” marked on it, and it is located to the west of the proposed tenement. That map also has the “Kilfoyle Plains” marked on it as an area to the south and south west of the proposed tenement and to the north of the Daly River. Kilfoyle Creek itself is located on the western boundary of the proposed tenement, but it also extends to the far north of the proposed tenement. Where exactly on Kilfoyle Creek the activities occur (what section, both banks etc) is not made clear. Further there is a statement (at para 10) that she and her family go all around Kamu country, up to the “bottom edge way of the hill country.” Again there is no explanation where the country being referred to is located. It is possible to presuppose that it could relate to the elevated land from Mount Hayward in the south through to Mount Thomas in the eastern section of the proposed tenement and right through to Neds Knob in the area of Litchfield National Park. It is not appropriate, however, to speculate in such a manner. It is for the native title party to explain to the Tribunal and the other parties what is being referred to.
[50] Accordingly, the evidence before the Tribunal of activities that actually occur on the area of the tenement is, to say the least, quite vague. It is most probably the case that the vast majority of the hunting, fishing and other activities occur outside the proposed tenement, but that native title holders do engage in some activities on the licence area. For the purpose of this inquiry I have approached this matter on this basis, and therefore work on the assumption that some community or social activities are carried on in the area of the proposed tenement.
[51] There is no evidence that any previous exploration activity has had a negative impact on the community or social activities of native title holders, at least in the recent past. In fact there is no suggestion in the Affidavit of Ms Foster that she is opposed to exploration taking place. Rather she expresses the view that the explorer should speak to her sons before engaging in exploration activity so that they can be shown where they “can go”.
[52] The government party points out (GPCR at para 89) that Clause 18(a) of the Second Schedule Conditions of an Exploration Licence (pursuant to section 24A of the Mining Act) require a licensee: “prior to the commencement of exploration activities other than reconnaissance, (to) convene a meeting on the licence area … with registered native title claimants or holders to explain the exploration activities.” However it is also important to note Clause 18(c) which provides; “The Licensee must have regard to representations made to it at the meeting regarding any aspect of the exploration activities which raises concerns. These representations may deal with the avoidance access procedures of particular areas of land within the licence area.” The Second Schedule Conditions also impose a range of obligations on explorers to minimise impact to extant native title rights and interests (Cl 1) as well as to the environment (Cl 12). Explorers are not permitted to bring guns or traps onto the licence area or take or kill wildlife (Cl 15), nor are they (without permission) allowed to use fire (Cl 17). Clearing of vegetation is to be kept to a minimum (Cl 9), and rubbish/waste must be removed (Cl 14). Finally all precautions necessary have to be taken to prevent contamination of underground and surface waters (Cl 15).
[53] In short, the relevant regulatory regime in force in the Northern Territory aims at preventing (as far as possible) disturbance to community and social activities. The existence of these (and other) safeguards does not render a section 237(a) inquiry unnecessary, however, it is important to highlight these provisions as they do go some way towards minimising the likelihood of interference in some circumstances. Certainly the clear purport of Clause 18 of the Second Schedule is that an explorer is required to convene a meeting with native title holders and have regard to representations they may make. This does not mean that all representations will be acceded to, but it certainly does provide a mechanism and a forum for concerns of native title holders to be ventilated with an explorer before any activities take place.
[54] Of significance in this regard is the following statement by the grantee party 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 to closely liaise with native title holders and involve them in exploration activities.
[55] It is also important to have regard to the analysis of this paragraph by French J in Smith v Western Australia (2001) 108 FCR 442. His Honour made these observations (at 451-452):
“The criterion of direct interference in par (a) may be thought of more fruitfully as functional than as definitional. That is to say, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It 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.
The evaluation is contextual. The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial. It is that kind of assessment which the applicant in this case regards as impermissible. In my opinion, however, it reflects a commonsense approach to the question posed for the Tribunal which was reflected in the approach which it took in this case. 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. Counsel for the applicant accepted that it was this issue that was at the core of his argument. It was put to him in the course of oral argument that what the ground really boiled down to was that the Tribunal, by implication, had suggested that interference was not direct if there were other concurrent impacts in the light of which the impact of the proposed future act was assessed. It was the applicant’s position that what the Tribunal should have done was simply look at the impact of the proposed future act.”
[56] As French J highlights, the concept of interference is to some degree evaluative. Such interference must be substantial in its impact, with trivial impacts not being sufficient to invoke paragraph (a). In the context of this inquiry, the community or social activities are essentially periodic and short term. There is no evidence that they are carried on throughout the whole area of the proposed tenement, or indeed, what particular areas. There is no evidence that current mining activities or previous exploration activities have in any way interfered with, or had a substantial impact on, the community or social activities of native title holders. Having regard the regulatory regime in force, and, in particular the requirement for consultation with native title holders and limits on activities that could interfere with native title rights and interests, I find that it is unlikely that exploration activities would be likely to have a substantial impact on the hunting, gathering, fishing and camping activities previously discussed.
[57] His Honour also pointed out that any such evaluation is contextual, and that it was open and proper for the Tribunal to assess the risk of direct interference having regard to other factors that may or do impact on the social or community activities of native title holders.
[58] As mentioned, the proposed tenement is located wholly within two pastoral properties. The licensees in question (together with their employees) have a right, pursuant to the relevant leases, to carry out any activity permitted by law and such activity prevails over any native title rights and interests – see section 44H. As such there is the likelihood of ongoing impacts on the community or social activities of native title holders by pastoralists acting lawfully and pursuant to the relevant laws in place in the Northern Territory.
[59] It also has to be borne in mind that there is also a current mining tenement in force within the boundaries of the proposed exploration licence. This, possibly, is a further constraint on the community and social activities of native title holders.
[60] 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 social and community activities, the stated modus operandi of the grantee party would go some way to ensuring that this intersection does not result in major interference.
[61] In summary, while accepting that there are social and community 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 existence of other factors impacting on those community and social activities, 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
[62] There is no evidence before the Tribunal that there is or are any sites of particular significance located within or immediately adjacent to the proposed tenement. While there is a registered site on the proposed tenement (Tumjiji), neither Biddy Lindsay or Marjorie Foster made any reference to it, or the other recorded sites located on the boundaries of the tenement.
[63] The only sites specifically alluded to in the evidence, and which the native title party contends are sites of particular significance are:
(a)Marion Hill, which is a few kilometres (2 or 3) south of the proposed tenement;
(b)Litchfield Hill, which is some unspecified distance from the tenement area (it is to be noted that Mount Litchfield, which is a sacred site, is located approximately 6 kilometres from the north western boundary); and
(c)Wani Wuwen, which is to the south of the proposed tenement.
[64] I have previously found that Marion Hill is a site of particular significance. It is discussed at length by Biddy Lindsay, who views it as a dangerous place which confuses people and makes them sick. It is also mentioned by Marjorie Foster who deposes that it is poison country and a dangerous place. She claims that it is an important man’s site and that women are not allowed to go there.
[65] Whether Biddy Lindsay has the right to speak for Marion Hill is not clear (Marjorie Foster says that it is a man’s site). However, I have no reason to doubt the evidence given by both deponents, which is fundamentally consistent, and which highlights the particular importance placed on this site.
[66] The evidence given also highlights that Marion Hill forms part of a wider dangerous area. Biddy Lindsay says that Marion Hill “talks to” Litchfield Hill, and that she has a song for that country. Importantly she says that “that danger goes the same distance from my house at Daly River to the police station, about three kilometres. The danger area might go into the ELA area.”
[67] The native title party contends that a site should not be considered simply as a physical feature on a landscape, such as a billabong or a hill, occupying relatively little space, but rather as a place, the location of which is indicated by reference to the particular physical feature but which is not delimited by that feature. In the context of this inquiry it was submitted that Marion Hill is in fact the locus of danger and the spirit associated with the site. There was, it was said, a zone of influence of about 3 kilometres radius around the hill, where the danger associated with the site takes effect, and which might extend into the licence area. Consequently, it was contended that the site of particular significance was not Marion Hill as registered by the AAPA but the whole zone of influence – OSC at paras 59-60 and 63-64.
[68] It may well be that in some circumstances this contention would be correct. Certainly the fact that an area or site is recorded or registered by the AAPA is in no way determinative of whether that area or site is in fact of particular significance within the meaning of section 237(b). Further, the boundaries of an area or site are not determined by the AAPA for the purposes of section 237(b). The boundaries of a site of particular significance are determined in accordance with the evidence before the Tribunal.
[69] In this instance, though, Biddy Lindsay does not say that the zone of influence definitely extends into the proposed tenement. She simply says that it might go that far. Even if the zone does go that far, Marion Hill is somewhere between 2 and more than 3 kilometres from ELA 22495, and the intersection between the proposed tenement and the “zone” would be of very short physical duration. In short, if there be an overlap between the zone and the tenement it would be marginal to say the least, and it would be, in my mind, unrealistic to assume that making a predictive assessment under this paragraph, can be sensibly reduced to making highly sensitive distance measurements, having regard to the nature of the evidence before the Tribunal.
[70] The grantee party in its Contentions also gave this commitment (GR1 at p 1): “The Grantee Party undertakes to commission fresh heritage surveys of the area of the Licence prior to the conducting of exploration upon the Licence.” No doubt any heritage survey that would be conducted would deal with the issue of Marion Hill and the type of concerns expressed by Biddy Lindsay.
[71] The other site referred to by the native title party is Wani Wuwen (Dirk Kuwen). The native title party suggested that its importance was evident from the Report of Toohey J. In his report His Honour made these comments (at para 168):
“During the hearing we visited both 147 Wani-Woen, 195a Little Chigarranyi and 196 Chigarranyi. At these places a number of claimants gave evidence. Site 195a is of particular significance to women as appeared from the evidence given there by Kitty Waliwarara. The significance of that site is also discussed in Dr Bell’s report Exhibit 8. The spiritual importance of the places was evident. The claimants claim and exercise primary spiritual responsibility for those sites and for that land.”
[72] Even if I accept that Wani Wuwen is a site of particular significance within the meaning of section 237(b) (which I do not for the reasons outlined at [24]), there is no evidence before the Tribunal that the grant of the tenement would be likely to interfere with it in any manner. The site is located some distance from the proposed tenement and there is no evidence that any exploration activity would in any way impact on that site.
[73] Accordingly, there is no evidence before the Tribunal of areas or sites which are located on the proposed tenement. Further I find it unlikely that the grant of the tenement will interfere with Marion Hill, accepting as I do, that it is a site of particular significance. Insofar as the suggested zone of danger around Marion Hill may extend for a very short distance inside the extreme south western boundary of the proposed tenement, I note that the grantee party has undertaken to closely liaise with the traditional owners and involve them in exploration activities and, further, to commission a fresh heritage survey. I have no reason to doubt that the grantee party will involve the relevant native title holders and ensure that the impact of exploration activities is kept to an absolute minimum. I further have no reason to doubt that the proper protocols will be adopted to ensure that the proper people within the claim group will be involved. In short, the clear weight of evidence before the Tribunal is that there is no real likelihood that the grant of the tenement will result in any interference to any site of particular importance within the meaning of section 237(b).
Section 237(c) – Major disturbance to land or waters
[74] It is clear that there are some underlying concerns amongst members of the claim group about exploration 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 100) the experience of mining in previous years has given rise to a generalised concern about water pollution. This concern is of particular importance because as Ms Lindsay says: “It’s wet country there on the ELA area. It is still water, not running water.”
[75] In addition to Ms Lindsay, Ms Foster also expressed a generalised concern about exploration and what might happen to country.
[76] The native title party quite correctly points out that the area of the proposed tenement contains several billabongs, is subject to flooding during the wet season, is rich with wildlife and vegetation and is well suited to hunting and foraging.
[77] The government party contended that the subject area is already subject to ongoing pastoral activities (it points out that a pastoral lease allows all form of pastoral activities including the creation of tracks, fence and dam building and the movement of stock), has no sensitive geological or environmental areas and despite already being subject to extensive exploration activity no evidence has been produced of major disturbance.
[78] The grantee party made these submissions (Gr1 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.”
[79] It is clear that this part of the Northern Territory has been subject to extensive exploration and mining activity for many decades. In part this history is given clear resonance by the material contained in the Affidavit of Biddy Lindsay where she speaks of the ecological and societal damage caused by copper mining over seven decades ago, and there is some general discussion of mining and exploration activity in this general region in the Report of Toohey J (see pp 73-75).
[80] There is no material before the Tribunal that any contemporary or recent mining or exploration activity has resulted in any major disturbance to the land or waters. In fact the converse appears to be the case. Despite quite intensive exploration activity over (at least) the past two decades, this general area is still the subject of apparently extensive hunting, foraging, fishing and camping activities. I have no reason to doubt that previous mining activities and practices of many decades ago were both ecologically and culturally intrusive and damaging. In particular I note the evidence of Biddy Lindsay about the way in which mining practices of the early years of the previous century negatively impacted on the natural environment of the region.
[81] However, despite the apparently bad mining practices of the distant past, the Tribunal must focus on the evidence of contemporary exploration activities and the legal and regulatory regime they are subject to. In addition, it is important to remember that the issue under inquiry is an exploration licence, and not a right to mine. Whatever high impact activity may occur once a right to mine is granted this must be contrasted with the activities contemplated and permitted under the much less intrusive grant of a tenement permitting only exploration.
[82] In Moses Silver I explained at some length the regulatory regime in place governing exploration activities in the Northern Territory. Subsequently Deputy President Franklyn described the impact brought about by the Mining Management Act in Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported 27 March 2002 and Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motto Sakurai DO01/70-71, unreported 17 April 2002 (Angus Riley). I endorse the following observations of Deputy President Franklyn made in Angus Riley at [19]:
“In my opinion the provisions of the (Mining Management) Act have significantly added to the strength of the Northern Territory’s already strong regime for the management of mining exploration which, as Member Sosso says at paragraph [156] in Moses Silver (supra), is ‘well advanced, integrated, proactive’ and ‘pays significant regard to the native title rights and interests of traditional owners which, to a very large degree has succeeded in dove tailing native title considerations into the fabric of the decision making process’.”
[83] In this inquiry, the evidence regarding the Northern Territory’s regulatory regime governing exploration activities, is consistent with the previous findings of the Tribunal that it goes a considerable distance towards ensuring that the grant of an exploration tenement will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and the native title rights and interests of claimants are minimised as much as is practicable in the circumstances..
[84] However, no matter how advanced and proactive the legislative regime may be, it is not a complete response to a section 237(c) inquiry. Such an inquiry must consider a range of other issues and factors including the environmental and geological landscape of the tenement, the proposed exploration activities, the impact of previous, but relatively recent, exploration activities, the previous track record of an explorer (when that is relevant and at issue) and such other issues as may be pertinent. Amongst the other pertinent issues in this inquiry is the attitude of the deponents, who are speaking on behalf of the claim group. Neither deponent, it would appear, is opposed to exploration activities per se, or, indeed, in any general sense. Ms Lindsay says that it is “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.” Ms Foster expresses no objection to exploration, but rather the understandable desire that explorers take her sons to the tenement so that they can show the explorers where they can go. As such, it would appear that the main concern of the deponents is directed to mining activity and not to preliminary exploration, provided, of course, that the area around Marion Hill is not trespassed upon and that proper consultation will take place. In addition, there is no evidence of any particular environmental or geological factors which would render it likely that the proposed exploration activities of the grantee would result in the activation of section 237(c). While parts of the area of the proposed tenement are subject to flooding during the Wet Season and contain watercourses and billabongs, this does not of itself result in a finding of major disturbance. Moreover, there is no evidence that the grantee party’s statements should be discounted. The grantee party is a substantial corporate entity with an extensive exploration and mining record both in this locality and elsewhere. If there was any basis for discounting the evidence of the grantee party or its mode of operations, none was advanced in this inquiry. Insofar as the grantee party has some history of activity in this region, the fact that there is no suggestion of any previous unwarranted mining or exploration disturbances it has been responsible for, adds to the credibility of the material it has submitted.
[85] I am satisfied that the legal regime in place in the Northern Territory, together with the stated intentions of the grantee party, will address the concerns and the aspirations of the deponents. On a wider basis, I am also satisfied, based on the evidence of the impact of previous exploration activities, the current legal regime governing such activities in the Northern Territory, and the evidence of the grantee party, that it is not likely that the grant of the tenement would result in major disturbance within the meaning of that term in section 237(c).
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22495 to Troy Resources NL is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
0
3
0