Kathleen Parry, Albert Myoung, Paddy Huddlestone, & Marjorie Foster on behalf of the Wagiman, Ngangiwumeri, Malak Malak and Kamu Peoples and April Bright, Pavalina Henwood & Ann Majar on behalf of the Mak Mak...
[2002] NNTTA 239
•22 November 2002
NATIONAL NATIVE TITLE TRIBUNAL
Kathleen Parry, Albert Myoung, Paddy Huddlestone, & Marjorie Foster on behalf of the Wagiman, Ngangiwumeri, Malak Malak and Kamu Peoples and April Bright, Pavalina Henwood & Ann Majar on behalf of the Mak Mak Maranunggu and Werat Groups/Falconbridge (Australia) Pty Ltd/Northern Territory, [2002] NNTTA 239
(22 November 2002)
APPLICATIONS NO: DO 02/48 & DO 02/49
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an Inquiry into Expedited Procedure Objection Applications
KATHLEEN PARRY, ALBERT MYOUNG, PADDY HUDDLESTONE, & MARJORIE FOSTER on behalf of the Wagiman, Ngangiwumeri, Malak Malak and Kamu Peoples
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APRIL BRIGHT, PAVALINA HENWOOD & ANN MAJAR on behalf of the Mak Mak Maranunggu and Werat Groups (native title parties)
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FALCONBRIDGE (AUSTRALIA) PTY LTD (grantee party)
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NORTHERN TERRITORY OF AUSTRALIA (government party)
INQUIRY INTO EXPEDITED PROCEDURE OBJECTION APPLICATIONS
Tribunal: John Sosso
Place: Brisbane
Date: 22 November 2002
Hearing dates: 30 August 2002
Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Neil Provins
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications - parties contentions – Land Claim Reports – Aboriginal communities – recorded or registered sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – whether act interferes with areas and sites of particular significance – no likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation: Mining Act (NT) ss 24, 24A, 166
Mining Management Act (NT) Parts 3, 4
Native Title Act 1993 (Cth) ss 29, 32, 44H, 151, 154, 155, 237
Northern Territory Aboriginal Sacred Sites Act (NT) ss 33, 34, 35, 36, 37
Cases:Allan Griffiths/Northern Territory/BHP Billiton Minerals Pty Ltd DO01/100, unreported, Member Sosso, 5 July 2002
Andy Andrews & Ors/Exploration & Resource Development Pty Ltd/Northern Territory DO01/123-125, unreported, Member Sosso, 19 August 2002
Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002
Charlie Lapthorne & Ors on behalf of the Thudgari People/Western Australia/Global Stone Group Inc WO01/581, unreported, Deputy President Franklyn, 13 November 2002
Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002
Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002
Kathleen Parry & Ors/Buchanan Exploration Pty Ltd/Northern Territory DO01/139, unreported, Member Sosso, 21 October 2002
May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, Member Sosso, 25 June 2002
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002
Smith v Western Australia (2001) 108 FCR 442
Violet Drury & Ors/Western Australia/Bywood Holdings WO01/111, unreported, Deputy President Franklyn, 20 August 2002
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Smith (2000) 163 FLR 32
Wik Peoples v Queensland (1996) 187 CLR 1
Wilma Freddie/Western Australia/Stephen Grant Povey WO99/882, unreported, Member Stuckey-Clarke, 19 December 2001
REASONS FOR DETERMINATION
Background
[1] On 12 December 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 Licences 22961 and 22959 (“the proposed tenements”) to Falconbridge (Australia) Pty Ltd (“the grantee party”) and included a statement that it considered these acts attracted the expedited procedure.
[2] Both of the proposed tenements are located south-south west of Darwin and in the general region of the Litchfield National Park. ELA 22961 is located near to the community of Nauiyu and in its north-eastern portion intersects the Daly River. The proposed tenement covers an area of 234 blocks (approximately 763 square kilometres) and is comprised of a number of tenures:
Perpetual Pastoral Lease (PPL) 1005, which is known as “Elizabeth Downs”;
Perpetual Pastoral Lease (PPL) 1004, which is known as “Tipperary”;
Crown Leases in Perpetuity (CLP) 204, 435 and 815; andVacant Crown land.
Despite the multiplicity of tenures, mapping produced by the Department of Business, Industry and Resource Development indicates that the vast majority of the underlying tenure is perpetual pastoral lease.
ELA 22959 is located to the north of ELA 22961 and is intersected in an east-west direction by the Reynolds River. LaBelle Downs Outstation is situated some six kilometres to the north west of the subject area. The proposed tenement is also much smaller than ELA 22961 comprising an area of 10 blocks (approximately 33 square kilometres). The underlying tenure in this instance is wholly perpetual pastoral lease, namely:
Perpetual Pastoral Lease (PPL) 1087, which is known as “Welltree”.
[3] The following native title determination applications, each of which wholly covers the respective area of the proposed tenements, have been filed with the Federal Court:
(a) Application D6028/01, “Fish River”, was lodged on 24 April 2001. This application was entered on the Register of Native Title Claims on 24 May 2001. The applicants are Kathleen Parry, Albert Myoung, Paddy Huddleston and Marjorie Foster on behalf of the Wagiman, Ngangiwumeri, Malak Malak and Kamu Peoples.
(b)Application D6004/02, “Welltree”, was lodged on 12 March 2002. This application was entered on the Register of Native Title Claims on 12 April 2002. The applicants are Pavalina Henwood and Ann Majar on behalf of the Mak Mak Maranunggu and Werat Groups.
[4] On 12 April 2002, each registered native title claim group lodged a Form 4 (Objection to inclusion in an Expedited Procedure Application) with the Tribunal. This was within four months after the section 29(4) notification day of 12 December 2001 – section 32(3).
[5] On 16 April 2002 Deputy President Sumner directed that I constitute the Tribunal for the purpose of these expedited procedure objection applications and on 17 April 2002 Directions were issued for the conduct of the matters. The various contentions made by the parties have been pursuant to those Directions and subsequent variations. A Listings Hearing was convened on 30 August 2002.
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. 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 extensive written contentions. When a reference is made to Contentions lodged with respect to a particular objection, the identification of the objection will be included in the citation. For ease of reference the various Contentions, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 1 August 2002;
Contentions in Reply (“GPCR DO 02/48”) dated 28 August 2002; and
Contentions in Reply (“GPCR DO 02/49”) dated 29 August 2002.
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 9 August 2002;
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 23 August 2002;
Objectors’ Reply to the Contentions of the Grantee Party (“OC Gr”) dated 23 August 2002; and
Statement of Contentions – Authorisation (“OSC-A DO 02/48”) dated 11 September 2002.
Grantee Party Contentions
Grantee Party Statement of Contentions (“Gr1”) dated 13 August 2002;
Supplement to Grantee Party Statement of Contentions (Gr2”) dated 22 August 2002; and
Reply to Statements of Contentions (“Gr3 DO 01/48”) dated 12 September 2002.
Evidence
[8] In addition to the abovementioned Contentions, the native title party in each matter lodged Affidavits of native title holders. In Objection DO02/48 an Affidavit of Mr William Marranya, which was affirmed on the 9 August 2002 before Mr Mark Rumler, a Commissioner for Oaths, was lodged. In objection DO02/49 an Affidavit of Ms Ann Majar which was affirmed on 7 August 2002 before Mr David J Mearns, a Commissioner for Oaths, was lodged. Each of these Affidavits is set out in full below:
Affidavit of William Marranya
“I, William Marranya of Nauiyu Nambiu Community, Daly River Mission in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1. I am a member of the native title claim group in the Fish River native title determination application (DC01/28). Kathleen Parry is my cousin. She knows that I am making this affidavit in support of the objection, and approves of it. My mother and her father were sister and brother. They had the same mother and father.
2. The area of the application includes the area of ELA 22961. I have seen a map of the area of the ELA. Now produced and shown to me marked “WM 22961” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. Most of the ELA area is on Elizabeth Downs station. Most of it is up from the Port Keats Road, which passes through the south western corner of the ELA. The north eastern part of the ELA area crosses the Daly River, upstream of Daly River Community.
4. The Daly River is on the north eastern boundary of the ELA. Muldiva Creek and Chilling Creek flow through the southern and western parts of the licence area into the Daly River.
5. Emu Point is along the road from Daly River to Port Keats, on the left hand side. That is Ruk Maren country. I can speak for that country. The language for the country is Nanggiwumerri. Ludig is another country along that road. People from Ludig and Emu Point go hunting there, on the east side of the hills, across to Chilling Creek. The country for Nanggiwumerri language country goes from Fish River mob, south east of Daly River community; west to Ludig country; west to Emu Point country (Ruk Maren country); and west again to Miriam Rose’s country.
6. The Ruk Maren mob from Emu Point go to Alligator Billabong, not Chilling Creek. That is my country from my father. Ruk Maren mob and Ludig mob are the Emu Point mob together. They are both Nanggiwumerri.
7. We take the kids fishing and camping there when it gets really dry, in the holiday time in June. I take my family. I go out in a vehicle with my wife and six kids, and the grandkids. I have three boys and three girls, and three grandkids. Sometimes it takes two trips in the car to get everybody there.
8. We go to Alligator Billabong and Chumunda. We have a hunting ground there. It is on past Chilling Creek on Elizabeth Downs station. We go out for 4 weeks. We camp at Alligator Billabong. We get turtle there. It’s on Elizabeth Downs, away from the river. We get wild yam, honey, bush food, porcupine, rock python, turtle, fish, bream, snake.
9. That is my Ruk Maren Country through my father. It is Nanggiwumerri language. We talk that language a little bit light, compared to other people.
10. We go there to Alligator Billabong at other times too, at weekends. We might go another two times a year. When we go, we go hunting with the car. We take it right back to Fletcher’s Gully, which is further up from the Port Keats Road. Patsy Brown is for that country at Fletcher’s Gully. She lives in Katherine.
11. Sometimes we go up Chilling Creek. There is a road up the creek, right up to Fish River. I go when it is properly dry. My family goes hunting with me. We go every year, four or five times. We go for the weekend. We go camping and fishing. Sometimes, we go for the day.
12. When we go hunting, we drive up as far as we can go, and then walk. Sometimes we have to walk into the creek. Kids love the country up there.
13. I also take schoolkids out there on an excursion for the day to Alligator Billabong. We collect crocodile eggs, and get turtle and bream. I take the school teachers from Daly River school, and their classes, by turns; the small kids and the big kids. We do it every year. I take four classes every year. I just take the kids who are from Nanggiwumerri country.
14. Other groups can go on my country if they ask my permission. We put water on their heads to introduce them to our country. People living in Daly River community ask my permission. There are about five or six hundred people living at Daly River.
15. Everyone in Daly River community goes to Daly River, on the other side of Hillcrest, just near the community. Nanggiwumerri and Marathiel people go there; people with country in that direction. Malak Malak people don’t go there. I went there on the weekend of 20 and 21 April 2002. I got yams and fish.
16. Mount Mancar: we call it Dangerous Gap. The women dig for yam there. My nephew and others went there in 2001 with rangers and Glenn Wightman (of the Parks and Wildlife Commission N.T.). They were writing down Nanggiwumerri names for plants, animals, and what we got from the country.
17. I will still go fishing and hunting if the exploration company is there. Sometimes Kathleen Parry goes.
18. If the company goes out, it should take me or Angus or Roderick or Terry to show us what it is doing. It should not go near the billabongs or the creeks; it might spoil them. That’s our hunting ground.
19. I don’t know if anyone else has done any mining there. Muldiva Mine is some holes on top of a hill from a long time ago. They were supposed to close them up, but they are still there.
20. People should not go up the north bank of the Daly River past the police station at Daly River Crossing. I am not allowed to talk about it, according to our law.
21. There are no sites across the Daly River from Daly River community, in the ELA. There are some further from the river.
22. My old man said that there is a Barramundi Dreaming at Alligator Billabong. There was a barramundi in the waterhole. It looked back and said that the country was not its land. Then it went back to Hermit Hill. The Barramundi is called Awalangerr.
23. Alligator Billabong floods in the wet. It has water all year round. The creeks get dry. Chilling Creek dries up. They come back in the wet.”
Affidavit of Ann Majar
“I, Ann Majar of 19 Castor St, Woodroffe in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1. I am an applicant and a member of the native title claim group in the Welltree native title determination application (DC02/03). I am Werat.
2. The area of the application includes the area of ELA 22959. I have seen a map of the area of the ELA. Now produced and shown to me marked “AM 22959” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. The ELA is on Welltree. The Reynolds River runs through it. There are lots of billabongs near the river. The ELA is all black soil country.
4. Labelle Downs is my country and the Reynolds. I can talk for that country in the ELA. Before the Station was there, when I was a little girl, I went down there to the Daly. I have not been able to go on since Peter Camm has been there.
5. We use English and language: Werat, Marununggu, Marithiel. My language is Werat. I know the words for turtle, tucker, goanna and goose. I am teaching language.
6. There is a track north of the ELA area, from Litchfield Park Road to Labelle Outstation. There is a community, Mungalimba, where the track crosses McCallum Creek on the Delissaville/Wagait, Larrakia Land Trust area. There is a big alligator there at McCallum Creek. It has been there a long time.
7. We used to go through the gate onto Labelle from the Land Trust area, and through the Homestead, through the Homestead yard, down to the Reynolds River. I did it in 1997, 1998, 1999, 2000, until the end of 2001, when the new fellow came in.
8. Labelle has got a new manager. He has only been there this year. He stops people going on to Labelle. We are trying to fix up the access issue. This is the only road in to Channel Point and Balgul community. It is a private road. The people from Balgul are having a hassle getting through Labelle to their community.
9. Henry Townsend owned Labelle. He put the road in. Henry sold Labelle to Peter Camm. Peter Camm is living at Labelle Outstation. Part of his access road is on the Land Trust area. He dug a trench and is destroying a Dreaming track – King Brown and Death Adder.
10. There is a different manager at Welltree to the one at Labelle. We can go on there. The Wangi mob has a problem with people going in. They locked the gates.
11. I go and check up my country once a week. I stay there every year during the school holidays. In April and May I usually go to Bob’s Knob and Murranja and Nowgli, to the west and north west of the ELA, hunting for turtle. Before, we told the manager and it was OK. Now, there is a new manager.
12. McKeddies is a billabong at the south west corner of the ELA. Kunadawol is there. We go there every weekend from the end of the wet into the dry: from April until July. We always have gone on weekends, from Friday to Sunday. I take my daughter and her two kids. I’ve got six grandchildren. If they’ve got a vehicle, they all come along. My sister Daisy goes there too very often, on her own, or with her husband, Tom, her son, Glenn, and her three grandchildren. Daisy lives at Wolaning, about eight kilometres north east of the ELA. She owns the Drovers’ Rest kiosk near Petheridge Rainforest. She goes to McKeddies just for the day. We want access there too. They won’t let us on.
13. It is wet country in the ELA. We drive in; we don’t walk. There is black soil there. If it is too wet, we can’t get in. We’d get bogged to the axle. It is all swamp. It is under water in the wet, even the road.
14. I’ve been on a floating mattress in the ELA area, looking for turtle. We’ve been going there all the time.
15. Water lily stem is good for high blood pressure.
16. There are two kinds of cheeky yam. One you put in running water for three weeks; peel the skin; bake it; put it on paperbark or green plum leaves; and cook it on coals. It is like flour.
17. There are heaps of Xamia Palm at Woolaning. We eat the nut. You have to wait until the dry to eat them. It you eat green ones you get diarrhoea.
18. In the early wet, we look for bush fruit. We go hunting into Litchfield Station, south of the ELA. We get goanna, lily pad, sweet potato and wild banana – it starts to fruit in April. I tell stories to the kids. We go to Pundurung on the Reynolds River.
19. Pundurung on the Reynolds is my Dreaming area, Sleepy Cod. It is my conception site. I was born at Coomallie Creek, opposite Welltree Station, south of the ELA. My dad and mum used to have a big camp there.
20. Litchfield Station is Wedge tail eagle country; we share it. We can go hunting there. I call them, and they take me in June and July. When I was six or seven, we camped near where Petherick’s saw mill, back towards Litchfield. There is quicksand there.
21. On Wangi station, east of the ELA, we go fishing and get turtles. We get goose, anything, duck.
22. There are Dreaming Sites near the ELA area. These Dreaming Sites all have ‘eyes’; pools of spring water, watching the country. They can see if there are strangers on the country, and can cause them to get sick if they are not properly introduced to the country. Bob’s Knob, Murrenja, Nowgli, west of the ELA area, and the end of Mt John on area E3 on the Wagait Land Trust all have eyes. All these sites are connected to each other and are in touch with each other. They pass information about strangers to each other, and if none of them recognise the stranger, the stranger is in danger of getting sick. We have to put water on the head of strangers, and talk to the eyes in language.
23. There is one at Collins Creek, Flagon Creek, and at McCallum Creek near Patj Patj, where the Mungalimba outstation is. They are not supposed to be touched. There’s one at Twin Hills too.
24. I will worry if the company goes out by itself. There are poison places like Bob’s Knob and Murrenja. They are eyes for Mount John, at the top of Murrenja, west of the ELA, on the Land Trust area. There is a track from Woolaning to Patj Patj to Didjini Nalgal. It sends out a cloud, which goes in a straight line from place to place. If the other Dreaming places don’t agree, they close them up at Mount John.
25. Kunadawol is a While Owl at McKeddies. It is a poison place. There is a white rock there that goes straight down (t)o the water. The Owl gives them warning. The old people said not to touch that rock. The Owl looks after the Dreaming. It is very sacred. There was a boat ramp there.
26. There is a Pulipuli track to Mount Tolmer at Wangi, east of the ELA. When I was a little girl, about 7-8 years old, the Rainbow Snake, called Pulipuli, came up the Reynolds River. From south of Bob’s Knob it went north right up to the Wangi Falls towards Litchfield. It went through the ELA area. The country was all burnt where it passed through and the banks of the river caved in. There was a fire burning the pandanus.
27. My mother and father used to tell me about the places I should avoid because they are dangerous. They said “don’t go to this place; you might get sick”. They told me where I can fish and where I can’t fish. There are some really important areas, which I have not even shown to my husband Alan, because they are too secret. I have showed them to my kids.
28. When I go out there, I teach the kids stories about Dreaming places there, after we come back from hunting. I tell them things like what the water lily root means; what to hunt and what not to hunt; which trees not to touch; which roots not to pick up; and about poison places there and at Mount John. I tell them where they can go and where they can’t go.
29. If I take visitors onto this country they have to be introduced to the country. I have to talk to the country in language, and wash their heads with water mixed with the sweat of countrymen. Then they can go and get turtle. Europeans have got to take one of us with them. Newcomers only have to have this done once, but it might take about three or four years for the country to get used to them. I would have to do this for you if you visited the country.
30. Minerals exploration happened at Mungalimba in the 70s and 80s. It destroyed a lot of fish: catfish, archer fish, and turtle. There is a site at Patj Patj. Now you are lucky to get barramundi; you only get them in a big flood. They started digging it up and washed ore in a sluice. The water got away into the creek and killed the fish. Now there is no decent water and the bore is dry. It is on the Land Trust area.
31. I have stopped exploration at Flagon Creek in the Land Trust area. I told Mike Stokes of the mining company not to let it go ahead. We can tell them not to explore or mine there.
32. I want to talk to the mining company before they start exploration.
33. I don’t like me or them stepping on the places. If anyone tampers with those places, the spirits will come down on us. Like at a Taipan place; my son nearly got bitten. That was on the Land Trust area, a kilometre from the community at McCallum Creek.
34. I don’t like them chipping rocks and taking samples.”
[9] The government party challenged the authority of Mr Marranya to provide the evidence outlined in his Affidavit. Although the government party’s contentions on this point are quite lengthy, insofar as they raise some important principles, they are set out below (GPCR DO02/48 at paras 86-88):
“86. Mr Marranya is not a registered native title claimant in DC01/28. Yet there is no independent evidence before the Tribunal (e.g. from Ms Parry herself, or Messrs Myoung, Huddlestone or Ms Foster, being all of the registered native title claimants) that this deponent has been ‘authorised’ to speak on behalf of the claim group or part of it. The deponent claims to gain his authority from the fact that his cousin, Kathleen Parry, “knows I am making this affidavit in support of the objection, and approves of it” (in paragraph 1). This self-warranting, seemingly, is a delegation of her authority. It is unknown whether this is purported to occur under traditional law or the general law. Division 1 of Part 3 of the NTA does not permit such a delegation and does not recognise any parallel delegation under traditional law.
87. In Ward v Northern Territory, [2002] FCA 171, 8 February 2002, an affidavit-maker claimed to be ‘authorised’ and cited in his affidavit a meeting date at which this ‘authorisation’ was said (to) occur. This self-proclamation was given short shrift and O’Loughlin J stated:
The information concerning the meeting that was held on 27 January 2002, the date of Mr Carlton’s affidavit, is wholly deficient. There is no information about that meeting. Who convened it and why was it convened? To whom was notice given and how was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded? [at 24]
88. The Tribunal is not the Federal Court but it may be loath to act on a self-asserted (and hearsay) basis when the fact of any such authorisation could have been so readily evidenced. The statutory scheme is clear and Drummond J had occasion to set it out in Ankamuthi People v State of Queensland[2002] FCA 897, 17 July 2002, as paragraphs 7 and 8:
The provisions of that Act are clear. Section 61 makes provision for, among other things, a person authorised by all members of the native title claim group to bring an application for determination of native title on behalf of the claim group. Such a proceeding is obviously a representative proceeding. By s 61(2), it is provided that where a person authorised by a claim group to bring an application of native title on behalf of the group makes such an application, that person is the applicant and none of the other members of the claim group is the applicant.
It is clear enough from that provision that it is only the named applicant who has control of the litigation instituted by the filing of the application for a determination of native title on behalf of the claim group. The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in the proceedings, have no authority to take any step in the proceedings. That follows, by implication from s 61(2), from identifying the person who makes the application as the applicant and declaring that no other member of the claim group is the applicant. But if more were needed, it is to be found in s 62A, which explicitly states that to be the position.
Section 62A speaks of the applicant dealing “with all matters arising under this Act in relation to the application.” One cannot contemplate that Parliament intended the principal application to be so driven yet leave future act processes and other subsidiary proceedings – also representative in their nature – to be driven under another set of principles.”
[10] These contentions are similar to those which I considered in Kathleen Parry & Ors/Buchanan Exploration Pty Ltd/Northern Territory DO01/139, unreported, 21 October 2002. In that inquiry I pointed out that the government party was confusing the type of authorisation required in a native title determination application with the status of a native title holder to give evidence about areas or sites said to be of particular significance. In the former case the authorisation in question is grounded in various statutory provisions and is a fundamental requirement of the Native Title Act 1993. In contradistinction, authorisation of the present type is focused on the weight that should be given to particular evidence in the context of a section 237(b) assessment.
[11] The native title party in DO02/48 made extensive submissions on the question of authorisation. On the whole those contentions are soundly based. When the Tribunal is conducting a section 237 inquiry the best evidence that can be provided by a native title party is direct evidence from a native title holder. That evidence may be supplemented by other material, including information stored by government agencies as well as analysis and opinions provided by professionals and specific physical evidence about the land and waters that comprise a proposed tenement. Nonetheless, except when making an assessment about the risk of major disturbance, it is the case that the Tribunal will primarily look to the native title party to assist the Tribunal by the provision of affidavits, witness statements or oral testimony from members of the relevant native title claim group who have direct knowledge about community or social activities or about areas or sites said to be of particular significance.
[12] If a person is identified as a member of the native title claim group, as Mr Marranya is, then such person can, prima facie, give appropriate evidence about activities. There is no need to inquire into that person’s “status” within the claim group, or his or her “authorisation” to talk about those activities. The simple issue for the Tribunal to determine is whether the deponent has given credible evidence about these matters, and then undertake an assessment based on the material lodged. In the absence of any suggestion that evidence by a native title holder about activities is factually incorrect or is exaggerated, the Tribunal is not obliged to inquire further into the particular position of a deponent within the claim group.
[13] Evidence about areas or sites said to be of particular significance is conceptually different. In order to determine if a person has the requisite authority to provide evidence about areas or sites said to be of particular significance the Tribunal needs to take into account a number of factors. I set out some of those factors in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002 at [28] and in Allan Griffiths/Northern Territory/BHP Billiton Minerals Pty Ltd DO01/100, 5 July 2002.
[14] The native title party, after setting out the considerations I outlined in those determinations, contended that Mr Marranya had the requisite authority to provide evidence on the relevant areas and sites on behalf of the claim group. The particular contentions are set out below (OSC – A DO02/48 at paras 8 -13):
“8. The evidence is that:
a. William Marranya is a member of the native title claim group in the Fish River native title determination application (DC01/28) [affidavit of William Marranya [1]]. He can be identified as the William Marranja referred to as a great grandchild of Kityuilyn, the Ngangiwumeri apical ancestor, in the application (Schedule A paragraph 4).
b. He is a cousin of Kathleen Parry, who is an applicant in the application. She approves of William Marranya making the affidavit in support of the application. His mother and her father were sister and brother. They had the same mother and father [affidavit of William Marranya [1]].
c. He knows the licence area, and states that he can speak for the Ruk Meren part of it [affidavit of William Marranya [5]]. It is his country from his father [affidavit of William Marranya [6], [9]]. Ruk Meren Country is Nanggiwumerri language [affidavit of William Marranya [9]].
d. Other people can go on his Ruk Meren Country if they ask his permission. Other people do ask his permission [affidavit of William Marranya [14]]. Implicitly, this process is governed by the requirements of the traditions of the native title holders.
e. He speaks Ngangiwumeri. He talks it in a way that sounds a little ‘light’ in comparison to other people [affidavit of William Marranya [9]].
f. He knows:
i.The location, identity, and story for Barramundi Dreaming site at Alligator Billabong [affidavit of William Marranya [22]].
ii.Law concerning the area upstream of the police station at Daly River Crossing, on the north bank. That law prevents him from talking about that area [affidavit of William Marranya [20]].
9. No other evidence contradicting this evidence has been brought by the other parties. Neither has produced any substantive basis for refuting it, or casting it in doubt.
10. In each inquiry the Tribunal must carefully weigh the evidence before it. Expedited procedure inquiries are short form inquiries. There is no need for the objectors to produce voluminous material as if these were court proceedings. That would be unrealistic and unfair, and inconsistent with the Tribunal’s requirement to carry out is functions in a way that is fair just economical informal and prompt (s109).
11. This evidence shows that William Marranya is properly qualified to speak about the applicants’ traditions in relation to areas or sites of significance. He knows the licence area and can speak for Ruk Meren Country. He took that country from his father. Other Aboriginal people acknowledge that he can speak for that country. According to traditional law and custom, he has the right to control access to that country.
12. Further, his evidence is consistent with that contemplated by RD Nicholson J as potentially being sufficient to satisfy the Tribunal as to a witness’s qualifications. There is evidence that:
a. William Maranya holds a particular position within the community of the native title claim group. He is a great grandchild of the Ngangiwumeri apical ancestor, at the same generational level as the Ngangiwumeri applicant, Kathleen Parry. He can speak for Ruk Meren Country. He takes that country from his father;
b. He has actively maintained contact with that community and its traditions. He lives at the community (Nauiyu Nambiu) close by his country, and the licence area. He knows Dreaming stories, and law concerning speaking about a certain area (at [20]). He complies with that law by declining to speak about that area.
13. The evidence as to William Marranya’s qualifications to speak for areas or sites of particular significance on Ruk Meren Country, according to the traditions of the native title holders, should be accepted by the Tribunal.”
[15] The government party raised a number of further issues about Mr Marranya’s “authorisation” apart from the matters previously outlined. In particular it was pointed out (GPCR DO02/48 at para 89) that while Mr Marranya deposed to being “Nanggiwumerri”, this was only one part of a composite group of specified native title holders. It was contended that he could only speak for one of the four sub-groups that comprise the composite native title claim group. It was further submitted that the particular land and waters he could speak for were not clearly set out in the material before the Tribunal. In particular it was said (at para 90): “ … there is no evidence from the Fish River mob or the Ludig or Miriam Rose as to their boundaries. Without more, it is indecipherable.”
[16] The material presented to the Tribunal clearly indicates that Mr Marranya is a member of the claim group. There is no reason to doubt that Kathleen Parry, one of the applicants, is his cousin. Despite suggestions to the contrary by the government party, I also see no reason to question Mr Marranya’s statement that Ms Parry knew of, and “approved”, his deposing to the material in his Affidavit.
[17] In expedited procedure objection inquiries a commonsense approach to evidence is not only mandated by the Act, but is clearly apposite in short form inquiries conducted by the consent of all of the parties on the papers. While the government party may be correct to categorise Mr Marranya’s statement as “self warranting”, provided that the credibility of the person so warranting is not seriously challenged I see nothing inherently inappropriate in this. Clearly the Northern Land Council is currently managing a multiplicity of expedited procedure objections, as well as other matters under the Act, and the claim groups it represents are widely dispersed. Neither it, nor the Northern Territory Government, have unlimited resources, whether monetary or human, to expend on these inquires. The Tribunal does not conduct these inquiries in a vacuum, making determinations in blissful ignorance of the pressures placed on the various parties. While this does not provide any excuse for non compliance with the procedures adopted by the Tribunal, it does inform the Tribunal about how to conduct inquiries so that real justice is dispensed.
[18] Mr Marranya’s Affidavit contains comparatively little evidence about areas or sites of particular significance. Importantly he says (at para 21) that there are no sites across the Daly River from the Daly River Community in ELA 22961. I take it from this statement, that Mr Marranya is personally unaware of any sacred sites south of the Daly River which area includes the entirety of the proposed tenement excepting a very small area in the north eastern panhandle.
[19] Mr Marranya mentions that people should not go up the north bank of the Daly River past the police station at Daly River Crossing, but he says that he is not allowed to talk about it according to “our law”. Mapping provided by both the government and native title parties would indicate that the area referred to is outside of the proposed tenement. In any event, the scant nature of Mr Marranya’s evidence is such that it is not possible to make a finding that there is an area or site of particular significance. If this area is of particular significance, then no such evidence has been provided. It may be that Mr Marranya does not have the requisite authority in accordance with traditional laws and customs to speak for this area. Alternatively it may be that he could not provide such evidence in his Affidavit. Nonetheless if that was the case no application was made for the Tribunal to deal with this issue in a culturally sensitive manner. In short, the bald statement of Mr Marranya provides an inadequate platform for making a finding of particular significance pursuant to section 237(b).
[20] Finally, Mr Marranya states that there is a Barramundi Dreaming at Alligator Billabong. The fact that a site is part of a Dreaming track or has a Dreaming story, while of relevance when conducting a section 237(b) assessment, does not inexorably result in a finding that it is a site of particular significance. Not all Dreaming sites are of equal importance or equal significance to native title holders. In each case it is critical that the Tribunal be presented with some evidence from a native title holder or holders with the relevant knowledge about the particular significance of a Dreaming site. Only in this way can the Tribunal sensibly weigh up the particular sacredness of a site. In the absence of such evidence it is, in most instances, not possible to make a finding that an area or site is of particular significance: see generally on the question of dreaming tracks Andy Andrews & Ors/Exploration & Resource Development Pty Ltd/Northern Territory DO01/123-125, unreported, Member Sosso, 19 August 2002 at [123] – [124]. In this instance there clearly is not sufficient material before the Tribunal that Alligator Billabong is a site of particular significance, even if one was to work on the assumption that Mr Marranya has the relevant “authority” or “status” to speak for it.
[21] Accordingly, the evidence of Mr Marranya does not substantiate a finding that any of the places he refers to are areas or sites of particular significance. This conclusion flows even if I accepted the contentions of the native title party about Mr Marranya’s authority. However, on the balance, the contentions of the government party on the issue of Mr Marranya’s authority to speak for sacred sites is preferable, and for the record I accept those contentions on that question.
[22] Ms Majar, unlike Mr Marranya, is a registered native title claimant. The government party made the following concession (GPCR DO02/49 at para 86): “no questions of authority arise other than that she can speak for only one – the Werat Group – of the three sub-groups that comprise the composite native title claim group.” This contention is only partially correct. Ms Majar can provide evidence about community and social activities as well as about the physical characteristics of the proposed tenement and historical events (e.g. previous exploration and mining activity). This type of evidence can be given even if it transcends the country of the Werat People or involves activities of non-Werat People. Nonetheless if Ms Majar gave evidence about sites of significance for non-Werat People, then squarely at issue would be her authority to speak for those sites. For present purposes, however, no serious question arises about Ms Majar’s authority and her ability to provide the evidence outlined in her Affidavit.
Aboriginal Communities
[23] There are no Aboriginal communities within the boundaries of either of the proposed tenements. Nonetheless ELA 22961 is located in very close proximity to the Daly River Community (Nauiyu). This is a community which the native title party in DO02/48 asserts is comprised by members of the relevant native title claim group. With respect to ELA 22959 the native title party contends (OSC DO02/49 at para 63) that Mungalimba on the Delissaville/Wagait/Larrakia Aboriginal Land Trust Area and Woolaning (which is approximately 8 km north east of the subject area) are communities occupied by members of the relevant native title claim group.
Recorded or Registered Sites
ELA 22961 –
[24] There are 7 recorded sites and 5 registered sites located within the boundaries of ELA 22961, and a further 8 recorded sites and 3 registered sites within close proximity of part of the northern boundary, mainly along the Daly River. The sites located within the boundaries of the proposed tenement are set out below with the short form information as provided by the AAPA. A site ascribed a status of 40 or above by the AAPA is a registered site. If a site has a status between 10 and 40 it has been recorded, and the higher the status the more intense has been the investigation by the Authority.
5069-1Native Cat Dreaming – A site on the Native Cat Dreaming track; location is approximate – Recorded site - status 10;
5070-9Barramundi Dreaming Site – An area located nearby Alligator Lagoon – Recorded site - status 10;
5070-21Walngajak – Ironstone reef on the south side of the Daly River approximately 4 km downstream from the Woolliana Community – Registered site – status 40;
5070-43Nangi-Wumerri Burial Site – Isolated grave north of track approx 1.5 km south of Nanaar Billabong – Registered site - status 40;
5070-213Yirriwaya – Nancar billabong to the east of the Daly River – Recorded site – status 10;
5070-212Wunbal – A site characterised by rocks on the river bank, Daly River – Recorded site – status 10;
5070-41Nangi-Wumerri Burial – Five graves close to ruins of Bob Judge’s farm to the south from Daly River Crossing – Registered site – status 40;
5070-42Nangi-Wumerri Burial – Burial to the north of the ruins of Bob Judge’s farm some 150m east of the track on the western slopes of Nene Billabong – Registered site – status 40;
5070-8Chilling – An area approx 3 km upstream from Daly River Crossing – Recorded site – status 10;
5070-54Pai’e – A small billabong on southern side of the road to the west from the Daly River Crossing – Recorded site – status 10;
5070-17Nambaendi – Area north of billabong approximately 1.5 k east of Daly River Police Station – Registered site – status 40; and
5070-50Nambarundai Cave Site – A cave at the end of a gorge located in escarpment country east of Red Lilly Lagoon – Recorded site – status 10.
ELA 22959
There are 3 recorded sites within the boundaries of the proposed tenement and a further 6 sites within close proximity. The recorded sites located within ELA 22959 are set out below:
5071-24Nanggalarriny – Billabong on Reynolds River – status 10;
5071-25Mandulma – South arm of a channel of the Reynolds River – status 10; and
5071-36Witukany – Small billabong near Reynolds River – status 10.
Previous Exploration Activity
[25] From information supplied by the government party, it is clear that both proposed tenements have been subject to previous exploration and mining grants by the Northern Territory dating back to at least 1962 in the case of ELA 22961 and at least 1976 in the case of ELA 22959.
[26] ELA 22961, in particular, has been the subject of prolific exploration activity covering most of the northern, eastern and southern sectors with only small areas in the central west and far north east of the tenement remaining untouched. This activity has predominantly included stream sediment sampling, soil sampling and rock chip sampling. Mapping provided by the Department of Business, Industry and Resource Development also highlights that the areas to the east, south and south west of the proposed tenement have also been extensively explored, with a particular exploration focus in the area to the south-west.
[27] There are a number of abandoned mines located in the southern portion of the proposed tenement. “Big Mouth” is one such abandoned mine. It would appear that this mine operated between 1905 and 1946 for the purposes of obtaining gold. Other abandoned mines in this vicinity and to the south west of “Big Mouth” include “Pang Quees”, “New Show”, “Grants” and “Boiler”. Again the major deposit in each case was gold, with minor deposits of tin. No details were provided of the time period when these mines were operational.
[28] In addition, there are a number of granted mining tenements in the general vicinity of ELA 22961, most being located to the south west, namely:
Mineral Claim Northern (MCN) 2588, 2589, 2590, 2591, 3994 and 3995.
[29] The land and waters comprising ELA 22959 have been subjected to much less intensive and extensive exploration activity. However, the central northern and south eastern portions of the proposed tenement have been the subject of ground magnetic surveys, percussion drilling and RAB drilling. In particular, it would appear that fairly extensive RAB drilling has occurred in the south eastern sector. In contradistinction, mapping supplied by the Department of Business, Industry and Resource Development indicates that there has been no recent exploration activity in the western and south central portions of the subject area.
[30] Outlined below are details of previous mining and exploration tenements granted over the land and waters of both ELA 22961 and ELA 22959:
ELA 22961
Authority to Prospect – AP 954, 1243, 1393, 1744, 1944, 2325, 2343, 3341
Exploration Licence – EL 356, 656, 677, 1236, 1340, 1356, 1357, 1405, 1408, 1597, 1965, 1997, 2056, 2763, 3023, 3455, 4042, 4070, 4495, 4650, 4693, 4746, 4987, 5110, 5294, 5337, 5339, 5448, 5586, 6338, 6519, 6538, 6648, 6651, 6698, 6902, 7016, 7380, 7580, 7704, 7912, 8211, 8569, 8606, 8894, 9556
Exploration Retention Licence – ERL 71
Extractive Authority – EA 295
ELA 22959
Exploration Licence – EL 71, 971, 1731, 2090, 3101, 4653, 9507
[31] There are no current mining tenements on either of the proposed tenements.
[32] Existing mining tenements in the immediate vicinity of ELA 22961 are as follows:
EL – 22495, 22066, 22496, 10081, 22498, 23106, 23405, 22348, 6551, 10140, 22738, 6517, 1639, 22218, 10434, 10381, 9630, 9629
Nature of the Proposed Exploration Activity
[33] In its Applications for the Grant of an Exploration Licence, the grantee party made the following comments about its proposed work program for the first year:
“1) Detailed research, compilation and assessment of existing exploration data.
2) Bedrock, soil and stream sediment sampling and geological mapping
3) Airborne EM”
[34] Further information in regard to the grantee party’s proposed work program was included in its contentions (Gr1) in regard to both ELA 22959 and ELA 22961.
“Work Program:
It is FL’s plan to conduct a work program in the first year of grant that will be of minimal impact to the area included in the Exploration Licence Application. Proposed first year work will include an Airborne Electromagnetic Survey flown over portions of the affected area in an effort to identify potential targets that might host mineralisation. Such a survey will be flown at 250-meter line spacings at an approximate height of 60 meters. Impact to the region will be negligible with no on-ground activity. Coincident with such a survey and upon assessment of data collected, a small field crew may be directed to conduct a field reconnaissance program through which the quality of targets may be assessed. This assessment may include sampling of rock and/or soils in order to determine the potential values of a target for follow-up work. Such field reconnaissance will be subject to accessibility and only completed with the cooperation of Traditional Owners in order to minimise impact to land and ensure all Heritage and Sacred Sites are properly acknowledged and respected.
Upon completion of reconnaissance assessment, subsequent exploration work will involve better defining targets worthy of more detailed exploration work. Any further work will be subject to acceptable access clearances in order to recognize and ensure sensitive regions are properly protected. Follow-up work will include ground based geophysical traverses, possibly detailed mapping and geochemical surveys. Access routes and travel lines will be designed to minimise any environmental impact.
The ultimate objective in exploration is to discover economic mineralization. In order to assess potential properly, drilling might be required. All exploration activity that might have significant impact will be properly cleared by the respective land stewards and modern practices will be employed to minimise impact in the region – be it environmental or social. Reclamation of sites disturbed in any such activity will be completed before abandonment.
It is worth noting that planning for drilling, costeaning or any other “high impact” programs is not possible at this time. The vast majority of exploration programs fail to identify targets worthy of advanced exploration.
For all potential work programs, all parties with a vested interest in the tenement region that might be affected will be informed of pending activity and provided with as much detail as practically possible in order to conduct such activities with the informed consent of the relevant land stewards.
During all stages of exploration, it is intended that most work will occur during the dry season to minimise any environmental impact on waterways and access routes. Full cooperation from Traditional Owners will be sought to ensure all sites of significant social and cultural importance are protected and a spirit of cooperation and peace is maintained. Best practice technology will be employed in all aspects of exploration programs to ensure impact to the region is minimized and respect for the land is ensured”
Expert Evidence Adduced by the native title party
[35] In addition to the Affidavits of William Marranya and Ann Majar, the native title parties 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.
[36] I have considered all of this material in a number of inquiries, and for the purposes of this inquiry I adopt my comments at paragraph 23 of Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002. So far as is relevant, I also adopt the analysis and comments of Deputy President Franklyn in Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].
Land Claim Reports
[37] The native title party in objection DO02/49 sought to rely on particular findings in two Land Claim Reports and in both objections reliance was placed on some general findings made by Maurice J in the Mataranka Area Land Claim Report.
[38] The first Report relied upon was the Finniss River Land Claim Report. This Report was prepared by Mr Justice Toohey and presented to the then Minister for Aboriginal Affairs in May 1981. Basically His Honour heard evidence between August and November 1980. In short, the evidence before His Honour was given more than two decades ago. In addition the land and waters under claim fell outside the boundaries of ELA 22959. Toohey J divided the area under claim into five separate areas. The native title party points out (OSC DO02/49 at para 45) that the proposed tenement is located some 30 kilometres to the south of Area 1.
[39] The native title party contends that several people identifiable as members of the native title claim group were found by Toohey J to have carried on activities within the land and waters comprising the Delissaville/Wagait/Larrakia Aboriginal Land Trust. While that may well be the case, the southern boundary of this extensive parcel of land is located some 4 kilometres to the north of the proposed tenement. In any event, a reading of His Honour’s analysis of the evidence presented to him would indicate that the focus of the community and social activities he outlines is in the northern section of the Land Trust area, the land and waters between the Wagait Reserve and Area 1 which borders the Finniss River. In short, the evidence he was considering about activities (at least as outlined in paragraphs 187 and 188) would appear to be some distance from the land and waters under consideration in this inquiry.
[40] Reliance is also placed by the native title party (OSC DO02/49 at para 49) on findings that the Maranunggu had a right to forage in Areas 1 and 2 and occupied the eastern part of the Wagait Reserve and moved around the country to the north, east and south of the Reserve. Area 2, in fact, is also located quite some distance from the proposed tenement, on the northern bank of the Finniss River. Furthermore a close reading of Toohey J’s comments about the Maranunggu residing on the eastern part of Wagait Reserve and moving around that area gives no indication that there was an intersection with such movements and the proposed tenement. Even if there was (and this does not appear likely from my reading of the Report), such movements occurred at least 20 years ago, and unless there is more contemporary evidence before the Tribunal such findings would be of little assistance.
[41] In summary, I found the Finniss River Land Claim Report of marginal utility in this inquiry. Not only is it a Report based on evidence given two decades ago, the focus of the Report and the testimony provided, relates to the land and waters outside the boundaries of the proposed tenement. Insofar as it is possible to say that there is any intersection between the proposed tenement and the evidence presented to Toohey J, the intersection is extremely marginal.
[42] The second Land Claim Report relied upon was the Daly River (Malak Malak) Land Claim Report which was presented by Toohey J to the then Minister for Aboriginal Affairs in March 1982. His Honour heard evidence in this matter between October and November 1981. In short this is another instance of reliance being placed on evidence and findings made more than 20 years ago.
[43] In addition, there is also no overlap between the land under consideration by Toohey J and ELA 22959. The native title party points out (OSC DO02/49 at para 50) that the proposed tenement is located some 38 km to the north of the area the subject of the Land Claim Report.
[44] The native title party suggests (OSC DO02/49 at para 53) that a relevant finding made by Toohey J is that the claimants had a right to forage over the claim area. While that may well be the case there are three problems which such a contention. First, the evidence before His Honour is now more than two decades old. The Tribunal must be presented with evidence of contemporary community or social activities in order for it to sensibly make a predictive risk assessment pursuant to section 237(a). Secondly, the finding relates to a right to forage. Again the focus of a section 237(a) is about activities not entitlements. The Tribunal must be presented with evidence of how a right or entitlement is exercised rather than simply an assertion of the finding that such a right exists. Finally, and most tellingly, the findings of Toohey J would appear to be focused on the area under claim. As stated that area is located quite some distance from the proposed tenement. Findings about entitlements or activities such a distance away from an area the subject of an expedited procedure objection inquiry are of little, if any, utility.
[45] In both objections the native title parties referred the Tribunal (OSC DO02/48 at para 44a and DO02/49 at para 66a) to findings made by Maurice J in the Mataranka Area Land Claim Report (at 7.1.1 – 7.2.6) on defining the context in which foraging (including hunting, fishing and the gathering of bush tucker) takes place.
[46] In both instances the government party objected to reliance being placed on the findings of Maurice J.
[47] Maurice J submitted his Report in December 1988 having heard testimony from traditional owners in December 1986. As with the Land Claim Reports discussed above, the evidence upon which His Honour made his findings was given some time ago. However, what is particularly important is the fact that His Honour was considering five parcels of land and water stretching from Mataranka to Warloch Ponds in the east. In short the land and waters over which he made findings on foraging and related matters is more than 300 km to the south east of both proposed tenements.
[48] While I appreciate that the native title parties only seek to rely upon findings of Maurice J in a secondary and contextual way, nonetheless having regard to the age of the Report, the extreme distance of the land and waters subject to that Land Claim from the proposed tenements and the lack of any evidence of the relationship (if any) between the members of either of the claim groups and the traditional owners who gave evidence in 1986, I am not convinced that the Mataranka Area Land Claim Report is of any material assistance in these matters.
Legal Principles
[49] 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.
[50] 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.”
[51] In both matters the native title parties made general submissions about the manner in which, it was suggested, the Tribunal should proceed. In each instance the relevant native title party referred the Tribunal to section 3 of the Act which sets out the main objects, and in particular to the object in paragraph (a) which is “to provide for the recognition and protection of native title”. Reference was also made to the Preamble and to various decisions of the Federal Court which have held that the Act is beneficial and protective in character. It was then contended that the procedural and substantive rights and interests of native title parties must be afforded full protection in order to give expression to the purposes of the Native Title Act. The following submissions were also made (OSC DO02/49 at paras 12-14):
“12. Thus, the evidence before the NNTT is to be dealt with in a manner that accords and is consistent with the traditions, laws, customs, and usages of the Objectors and the native title claim group. This contention is supported by reference to ss 190(2) NTA, which enable the NNTT, in carrying out its functions, to take account of the cultural and customary concerns of Aboriginal peoples, but not so as to prejudice unduly any party to any proceedings that may be involved.
13. The special right to negotiate applies in the case of all the situations described in s 26 NTA, except where the expedited procedure has been attracted. The fundamental effect of a decision that an act attracts the expedited procedure is to deny native title parties the capacity to negotiate in good faith with the grantee party. Therefore, the grantee party may carry on its activities on country in respect of which a longstanding native title has been asserted, without the need to negotiate with the Native Title Parties.
14. Such a potential result must be considered against the purposes of the legislation, the nature of the right to negotiate and the effect on the Objectors and the native title party.”
[52] In contradistinction, the government party contended that any suggestion that the Tribunal commence its reasoning at a point where the full right to negotiate is assumed, is not consistent with either the decisions of the Federal Court or the statutory scheme in the Native Title Act.
[53] The government party referred to the decision of Carr J in Ward v Western Australia (1996) 69 FCR 208. In that matter His Honour considered a ground of appeal to the effect that the Tribunal had erred in law by failing to construe section 237 consistently with the assertion that the expedited procedure was exceptional to the normal negotiation procedure under section 31 and with the objects and Preamble to the Act. This ground of appeal was worded in a manner not inconsistent with the tenor of the native title parties’ contentions in these matters. Carr J dealt with this ground of appeal in the following manner (at 231):
“This ground, in my view, amounts to no more than a basis upon which to supplement or support the grounds of appeal relating to matters of onus of proof and construction of s 237(a) and (c). I have already dealt with those matters but, in deference to the arguments advanced by the parties, I will venture a few observations.
It is true that the heading to s 31(1) reads “Normal negotiation procedure” while the subheading to s 32(1) reads “Expedited procedure”. I do not regard the difference between these subheadings as being at all helpful. The introductory words to s 31(1) themselves qualify what the subheading suggests is normal negotiation procedure by the phrase “Except where the notice includes a statement that the Government party considers the Act attracts the expedited procedure … “. However, there is much in the preamble to the Act which is consistent with a construction beneficial to the native title parties. I do not consider that, in dealing with submissions concerning onus of proof, the Tribunal could be criticised as failing to construe s 237 in a manner sympathetic to the objects of and preamble to the Act. It should also be remembered that in the Second Reading Speech there was specific reference to the expedited procedure in the following terms:
“Provision is made for expedited processes where a particular grant would not involve major disturbance to land or interference with the life of Aboriginal communities.”
Parliament has, in my opinion, provided for two sets of circumstances. One is where there is no interference of any of the three types referred to in s 237, in which case the expedited procedure applies. The other is where there may be such interference, in which case the right to negotiate procedure must be embarked upon followed by, if necessary, a determination. There are insufficient indications in the Act to suggest that one procedure is normal and the other exceptional. They are simply different procedures to be applied depending upon the factual circumstances.”
[54] From time to time it has been suggested that the expedited procedure operates as a limited exception to the right to negotiate – see e.g. Aboriginal and Torres Strait Islander Commissioner Native Title Report 2001 at p.16. Again this was the tenor of the native title parties’ contentions in these matters. However, as Carr J held in Ward v Western Australia this is an incorrect interpretation of the legislative scheme. It is a misconception to view the expedited procedure as a limited exception or as somehow extraordinary. The framers of the legislation envisaged two sets of circumstances. On the one hand where the likely impact from the proposed grant of the tenement would be minimal in terms of the matters outlined in section 237, then the expedited procedure is attracted. Conversely where the likely impact of the grant of the future act would be such as to cause the interference or major disturbance outlined in section 237, then the right to negotiate must apply. It is not the case that that one scenario is exceptional or not. It is, rather, simply the application of a predictive risk assessment in conformity with the statutory criteria enumerated in section 237. Normal principles of statutory interpretation apply. While the Tribunal does apply a beneficial interpretation, it does so without any overarching preconception about the expedited procedure which has no basis in the clear wording of the Act.
[55] Accordingly, the tenor of the native title parties’ submissions about the expedited procedure is misconceived and contrary to the findings of Carr J. While the Tribunal is bound by those findings, it is manifestly clear that His Honour’s interpretation is consistent with a clear reading of the Act. The expedited procedure was inserted in the legislation to deal with proposed future acts which would be likely to have a low impact upon community or social activities, areas or sites of particular significance or on the land and waters concerned. When carrying out a predictive risk assessment the Tribunal will, in appropriate instances, give the benefit of the doubt (to use common parlance) to Objectors in accordance with a beneficial interpretation. However, while applying a beneficial interpretation, there is no basis for the Tribunal assuming that the expedited procedure is exceptional and assessing the section 237 criteria in such a manner. In this matter I have followed the interpretation of the Act as outlined above by Carr J.
Section 237(a) – Interference with the carrying on of community or social activities
[56] Mr Marranya provided the primary evidence of community and social activities for the Objectors in DO02/48. He deposed that “we” take “the kids” fishing and camping to Alligator Billabong in June of each year. He specifically mentions taking his family on such occasions, which includes his wife, six children and three grandchildren to Alligator Billabong and Chumunda.
[57] It would appear that Mr Marranya and his family camp at Alligator Billabong where they fish, hunt and gather bush food. Chumunda is a hunting ground. Such trips last for approximately four weeks. However, apart from the annual four week camp, Mr Marranya also visits Alligator Billabong occasionally on weekends. He specifies that two such additional camping trips may occur each year. On such occasions he and his companions hunt from a car, and go as far as Fletcher’s Gully.
[58] In addition to camping at Alligator Billabong, Mr Marranya also goes camping, hunting and fishing along Chilling Creek up to the Fish River. Chilling Creek flows through the centre of ELA 22961 and the Fish River is located to the south. These trips occur on weekends and about four or five times a year.
[59] Mr Marranya also deposes to taking schoolchildren on daily excursions from Daly River School to Alligator Billabong. It would appear that he takes four classes a year and this is organised with the school as school teachers accompany the children who are taught traditional hunting and gathering skills. Moreover such trips are limited to children from Nanggiwumerri country.
[60] The government party highlighted (amongst other things) the ambiguities in Mr Marranya’s Affidavit about the various places mentioned. In particular the following point was made (GPCR DO02/48 at para 91): “Then he says: ‘We take the kids out there when it gets really dry, in the holiday time in June’. Where is ‘there’? Is it Alligator Billabong from the preceding paragraph or Alligator Billabong and Chumunda from the subsequent paragraph? Where is Chumunda? Where is Dangerous Gap? Where is Fletcher’s Gully?”
[61] At the Listings Hearing of 30 August 2002 I put to Mr Rumler some of the problems experienced with an Affidavit of this type which mentions a plethora of places where community and social activities are said to occur, but either the location of a specific place in relation to the proposed tenement is unclear or there is a reference to a watercourse without any attempt to locate the part or section of the watercourse which is being used for such purposes. While I have subsequently managed to locate most of the places mentioned by Mr Marranya it is not helpful that the map attached to his Affidavit was not fully marked at the outset. For the purposes of this inquiry, it should be noted that Alligator Billabong is located in the central western portion and both Chilling and Muldiva Creeks traverse the eastern and south eastern portions of the proposed tenement. Some other places have not been specifically located including Fletcher’s Gully and Chumunda. However the description of these places in Mr Marranya’s Affidavit renders it likely that both are located outside of the proposed tenement. In any event the cumulative effect of Mr Marranya’s testimony is the description of intensive access to the area of the proposed tenement by himself and members of his extended family. That access would appear to take place mostly in the dry season, but at other times of the year there is also contact with the subject land and waters. The fact that Mr Marranya plays a traditional teaching role and uses the subject area in that regard is also a matter of some importance.
[62] The government party queried (GPCR DO02/48 at para 54) whether Nauiyu Nambiyu (Daly River Mission) is wholly or partially a community of relevant native title claimants and further submitted that the material before the Tribunal failed to disclose the number of residents and whether those persons residing there did so on a seasonal or permanent basis. There is little substance in this contention. Mr Marranya deposes that he lives at Nauiyu Nambiyu and it is open for the Tribunal to infer that at least some other members of his extended family also reside there or in the locality. More importantly he refers to members of that community engaging in community and social activities and specifically, that children from Nanggiwumerri country who attend Daly River School, are taken on country and taught traditional skills. The information provided in this and other inquiries in this part of the Northern Territory disclose that Nauiyu Nambiyu is a community of indigenous persons, and the material before this inquiry provides ample evidence that at least some members of that community are native title holders for present purposes.
[63] In summary, despite some inherent difficulties with the manner in which Mr Marranya’s Affidavit is composed, it does provide clear evidence of community and social activities being carried out on ELA 22961 by members of the relevant native title claim group. Nonetheless this does not dispose of the assessment pursuant to section 237(a), rather it provides the starting point for one to be properly conducted.
[64] The leading decision on the proper interpretation of section 237(a) post the 1998 amendments to the Native Title Act 1993 is Smith v Western Australia (2001) 108 FCR 442. French J pointed out that the Tribunal is required to conduct a predictive assessment, and that a future act is likely to result in interference with community or social activities if it involves a real chance or risk of interference. However, the interference referred to in section 237(a) (at 451) “must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.” His Honour also said that:
“in assessing the risk of direct interference the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed act is insubstantial. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”
[65] In assessing the likelihood of the future act interfering directly with the carrying on of the community or social activities of native title holders in objection DO02/48, I have taken into account the following factors:
(a)ELA 22961 forms part, inter alia, of Perpetual Pastoral Leases 1004 and 1005. Although these pastoral leases do not comprise all of the area of ELA 22961, mapping produced by the Department of Business, Industry and Resource Development indicates that with the exception of a small area in the south east and north east, the remaining area is entirely pastoral lease. In short I would estimate that around 90 per cent of the land and waters comprising the proposed tenement, falls within the above-mentioned perpetual pastoral leases. The lessees of those leases together with any employees or agents of the lessees have a right, pursuant to the terms of the lease and the law governing that lease, to carry out lawful activities. To the extent that a pastoral licensee (or persons authorised by the licensee) lawfully exercise rights granted, such activity prevails over any native title rights and interests – s 44H. Toohey J pointed out 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 rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.” French J highlighted in Smith v Western Australia that when assessing the risk of direct interference the Tribunal is entitled to have regard to constraints already imposed on community or social activities by third parties. In this instance the Tribunal has had regard to the fact that community or social activities on the proposed tenement by native title holders are already subject to lawful activities of the grantees of Perpetual Pastoral Leases 1004 and 1005;
(b)the area comprising ELA 22961 has been the subject of intensive and extensive exploration activity of various kinds over an extended period of time. With the exception of the area in the extreme north east of the proposed tenement and a relatively small area in the south-west, it would appear that remaining area, as well as the area to the south of the proposed tenement, has been extensively explored. In particular exploration appears to have been particularly focused on the areas in the vicinity of Chilling and Muldiva Creeks. Despite the level of previous exploration activity, Mr Marranya does not depose that this had impacted on traditional hunting, fishing, gathering or cultural activities. In fact the only mention he makes to exploration or mining is to the Muldiva Mine, which is in fact an abandoned mine situated about 8 kilometres to the south east of the subject area. In conducting a risk assessment, the fact that there is no evidence at all that previous intensive exploration activity has had any impact on community or social activities is an issue of some importance. As Deputy President Franklyn recently said: “One would then expect evidence from the Objector of present or prior relevant interference resulting from such prospecting or exploration activities. That no complaint of such interference is made is relevant to the issue of likelihood of relevant interference arising from the grant of the PLA.” – Charlie Lapthorne & Ors on behalf of the Thudgari People/Western Australia/Global Stone Group Inc WO01/581, unreported, 13 November 2002 at [2.4].
(c)there are no Aboriginal communities located within the proposed tenement, although I have taken into account that the Daly River Community (Nauiyu Nambiu) is located only a short distance away from the subject area;
(d)the evidence of community and social activities is basically limited to the material deposed by Mr Marranya. As previously indicated I have experienced some difficulties with this Affidavit insofar as it mentions various locations without those locations being either marked on the map attached to the Affidavit, or being identified by the native title party in relation to the area of the proposed tenement. Despite these problems, at least some of the locations he mentions can be identified, and it is possible to form a sensible view about the intersection of traditional activities with the subject land and waters;
(e)it would appear that the hub of much of the community and social activities deposed to by Mr Marranya is in the vicinity of Alligator Billabong and along Chilling Creek. Whilst other country is visited, nonetheless these areas appear to be the most significant parts of the proposed tenement for traditional activities. It is of relevance that the area around Chilling Creek has also been the focus of extensive exploration. Insofar as I accept that traditional activities do take place on a fairly regular basis by a number of traditional owners throughout the year (but especially during the Dry Season), it is noteworthy that these activities have, apparently, not been the subject of any stated interference by explorers in the past;
(f)the regulatory regime in force in the Northern Territory contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities. In previous inquiries I have referred to the conditions imposed on grantees pursuant to section 24A of the Mining Act. It should be noted that the Conditions were re-issued in August 2002 and as a result the numbering of some of the Conditions has altered from those quoted in previous inquiries. Basically, however, the Conditions remain very similar in wording and effect as those considered earlier. I will not repeat each and every one of the relevant conditions, however the first two Conditions are of particular relevance to a section 237(a) assessment:
[86] The native title party referred to seven particular sites which appear on the AAPA Sites Register. In the absence of any primary or other secondary evidence (e.g. in a Land Claims Report – see my comments in Kathleen Parry & Ors/Buchanan Exploration Pty Ltd/Northern Territory DO01/139, unreported, 21 October 2002 at [36] – [37]) which explains the particular sacredness of a recorded or registered site to the relevant native title holders, no sensible finding can be made that particular sites on the Register are of particular significance. For the purposes of this inquiry, in the absence of any direct evidence by Ms Majar, I am unable to ascertain the particular sacredness of any such site on the Register.
[87] Ms Majar provides direct evidence about a number of sites.
[88] Firstly, she refers to various Dreaming sites located off the subject area which have “eyes” with which the country is watched. Dreaming sites falling within this category include Bob’s Knob, Murrenja, Nowgli, Mt John, Collins Creek, Flagon Creek, McCallum Creek and Twin Hills. Ms Majar describes each of these sites in a manner consistent with their location outside of the proposed tenement. The mapping provide to the Tribunal confirms that in those cases where some of the abovementioned sites are marked, that they are in fact off-site, and in some instances located quite some distance from ELA 22959.
[89] While it not necessary that an area or site be located within the boundaries of a proposed tenement, nonetheless there must be a clear nexus between the granting of the future act and the apprehended interference. The government party submitted (GPCR DO02/49 at para 67(b)): “Other sites are located outside the proposed EL but within some kilometres of the boundary. It is submitted that no evidence has been proffered of these other sites as to raise a likelihood that they would be directly or physically affected by exploration activities on the proposed licence area.” It is not clear from the material submitted by the native title party how it could be found that these sites would be likely to be interfered with. The native title party made extensive submissions about interference with sites of significance, yet despite the length of those submissions there is nothing contained therein which would objectively enable a Tribunal to make a finding that the named sites would be likely to be interfered with. This is working on the assumption that such sites are of particular significance.
[90] The material before the Tribunal is relatively scant about the particular sacredness of the off tenement sites. The fact that a site is part of a Dreaming track does not automatically result in a finding that it is a site of particular significance within the meaning of section 237(b). In Andy Andrews & Ors./Exploration & Resource Development Pty Ltd/Northern Territory DO01/123-125, unreported, 19 August 2002 I made the following observations (at [124]): “while Dreaming Tracks are significant, not all Dreaming Tracks are of equal importance, and not all places along a Track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance.” However, for the purposes of this inquiry I am prepared to find that the various off tenement Dreaming sites mentioned are sites of particular significance having regard to the totality of the evidence provided by Ms Majar. Nonetheless there is insufficient material before the Tribunal to support a finding that the grant of the exploration licence would be likely to result in any interference with those sites.
[91] This leaves those sites mentioned by Ms Majar which are located within the boundaries of the proposed tenement. The first site mentioned is Kunadawol which is a White Owl Dreaming site located at McKeddies Lagoon in the south west corner of the proposed tenement. The particular description of that site in Ms Majar’s Affidavit clearly identifies it as a site of particular significance within the meaning of section 237(b). The second is the Pulipuli Dreaming track which is some distance ranging from south of Bob’s Knob west of the proposed tenement to Wangi, which is to the east of the subject area. It is not clear from this description exactly where this Dreaming track is located in relation to the proposed tenement, or if any aspects of the track within the boundaries of the proposed tenement are particularly sacred. While Ms Majar deposed to particularly important (and dangerous) places along the Track no evidence was provided to the Tribunal of any such places within the subject area. It is necessary for a native title holder to provide to the Tribunal evidence about the location and nature of a site which is said to be sacred: see e.g. Violet Drury & Ors/Western Australia/Bywood Holdings WO01/111, unreported, 20 August 2002, Deputy President Franklyn. If there is a need to maintain confidentiality the Tribunal is empowered, pursuant to sections 154 and 155, to conduct its proceedings in such a way that the cultural and customary concerns of traditional owners are accommodated. In this matter no request was made for the Tribunal to prohibit the disclosure of evidence pursuant to section 155. Accordingly, in the absence of any evidence of the location and nature of sites along the Pulipuli Dreaming track, the Tribunal is not in a position to find that any part of the Pulipuli Dreaming track which is located within the subject area is of particular significance.
[92] The government party made the following submissions which have relevance to this stage of the inquiry (GPCR DO02/49 at paras 68 – 70):
“68. In any event, assuming that the materials posited by the Objectors do establish to the satisfaction of the Tribunal that a site is of particular significance, the materials simply do not establish the how, when, where and why any interference to any area or site of particular significance is likely to occur. There must be apprehended interference and that must be demonstrated to be likely. It is not. There is no allegation by the deponent that either Kunadawol or any of the mentioned sites of these sites has been damaged or interfered with by any of the previous exploration activities.
69. Other factors to be borne in mind is the predictive risk assessment include the statutory site protection regime under the Sacred Sites Act (which can only be labelled as strict) and the onerous conditions placed on this proposed exploration licence which seek to ameliorate the impact on native title rights and interests (and which are jurisdictionally unique in the Expedited Procedure in Australia).
70. The onerous Second Schedule of Conditions (of August 2002 and particularized in our Contentions) includes conditions that specifically reduce the likelihood of interference with any sites of particular significance. The Tribunal is referred to Conditions 1(b), 6, 7, 8, and 25 as especially relevant to paragraph 237(b) NTA issues. The compulsory inspection of the Register of Sacred Sites (as required by Condition 8) and the mandatory on-site consultation with any registered native title claimants or holders (as required by Condition 6) are seen as mechanisms to significantly reduce the likelihood of interference with any such sites. The Second Schedule Conditions ensure that the grantee will be aware of relevant recorded or registered sites and that the registered native title claimants are presented the opportunity to raise any issues or concerns.”
[93] In previous determinations I have given careful attention to the relevant provisions of the Northern Territory Aboriginal Sacred Sites Act (in particular ss 33-37). Moreover section 24 of the Mining Act provides that every exploration licence shall, unless expressly waived, varied or suspended by the Minister, be granted subject to a condition that the licensee will:
“(k) not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory, otherwise than in accordance with that law.”
[94] The above provisions, are, of course, directed at areas or sites processed under the abovementioned sacred sites legislation. However, there are also other provisions that deal with areas or sites in a broader sense. Condition 1 of the section 24A (Second Schedule) Conditions (set out previously) specifically requires a licensee to carry out its activities in such a way as to minimise any interference with areas or sites of particular significance. Other Conditions of relevance are set out below:
(a)Condition 7 requires that all exploration personnel and their contractors and agents must be instructed on the legal necessity to protect sacred sites and other significant archaeological sites and structures which may exist within a licence area;
(b)Condition 8 requires a licensee to consult with the AAPA and inspect the Sites Register before commencing any work in the licence area; and
(c)Condition 6 imposes an obligation on a licensee prior to the commencement of exploration activities to convene a meeting on the licence area (or nearest convenient locality) with registered native title claimants to explain the proposed exploration activities. The licensee is required to have regard to any representations made in relation to any concerns of native title holders. Specifically Condition 6 (c) says: “These representations may deal with access procedures to particular areas of land within the licence area.” There is also a complaint mechanism in Condition 25 allowing dissatisfied native title holders to complain to the Minister, and empowering the Minister to intervene.
[95] The cumulative effect of these (and other) provisions is to put in a place a comprehensive and well integrated regime designed to ensure that the risk of interference with areas or sites or particular significance is minimised. Of course, the operation of this regime does not inexorably lead to the conclusion in every inquiry that there is not a real risk or chance of interference within the meaning of section 237(b). Nonetheless, in making an assessment of the likelihood of interference, the fact that the Northern Territory has put in place a series of a provisions designed to address and minimise the risk such interference, is a relevant and very important consideration.
[96] In this matter there is no evidence of any previous exploration or mining activity resulting in any interference to Kunadawol in particular, or McKeddies Billabong in general. Further the grantee party (Gr1) submitted that it would seek full co-operation from traditional owners to ensure that all sites of social and cultural importance would be protected and that, inter alia, during all stages of exploration the legislation governing sacred sites would be “adhered to” by its employees and contractors. The evidence before the Tribunal does not disclose that this general area is “site rich” and the only site of particular significance is located in the south-western portion of the proposed tenement.
[97] The combination of the legal regime protecting sacred sites, the evidence of the grantee party and the absence of evidence disclosing that this is a site rich area, all lead to the conclusion that there is no likelihood that the grant of the proposed tenement would result in interference to Kundawol within the meaning of section 237(b).
Section 237(c) – Major disturbance to land or waters
[98] In both objections DO02/48 and DO02/49 the native title parties made extensive submissions on the issue of major disturbance. Despite the length of the submissions, and the many interesting legal points that were raised, the vast bulk of the submissions were not directed to the particular circumstances of the proposed tenements, but were of a generic type received in most Northern Territory expedited procedure objection inquiries.
[99] In Moses Silver I set out key provisions of the then regulatory regime governing exploration activities in the Northern Territory. Subsequently Deputy President Franklyn described the changes brought about by the Mining Management Act in Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, 27 March 2002 and Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported 17 April 2002. More recently I considered the relevant provisions of the Mining Management Act in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002. I adopt, for the purposes of this inquiry, the analysis of the regulatory regime set out in the abovementioned determinations. In particular I have considered the following provisions in this inquiry: sections 24(j), 24A (in particular Conditions (as re-issued in August 2002) 2, 3, 6, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24), 166(1A), (1B) and (2) of the Mining Act and Parts 3 and 4 of the Mining Management Act. The evidence submitted in this inquiry about the regulatory regime is consistent with previous findings of the Tribunal that it goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and to native title rights and interests are minimised as far as is practicable in the circumstances. Nevertheless despite the advanced and proactive nature of this regime, it is never a complete response to a predictive assessment by the Tribunal under section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant and has been raised), and such other issues as may be pertinent.
[100] No evidence has been led in objection DO02/48 about previous exploration activity resulting in any disturbance to the land and waters comprising ELA 22961. Mr Marranya does refer in his Affidavit (para 19) to the Muldiva Mine. This is an abandoned mine on a hill which is still marked with holes which were never filled in. It is of relevance to note that the Muldiva Mine is located some distance to the south-east of the proposed tenement, and the environmental damage referred to resulted from mining (as distinct from exploration) activity many years ago. Despite the history of extremely intensive exploration activity on and near to the proposed tenement in recent years, no primary or secondary evidence was led that this has resulted in any major disturbance to the relevant land or waters.
[101] In objection DO02/49 Ms Majar gave evidence of mineral exploration at Mungalimba in the 1970s and 1980s. According to Ms Majar the explorers allowed polluted water to enter into the nearby watercourse resulting in the killing of fish and the general pollution of the waters. According to Ms Majar the impact of this environmental pollution persists to this day.
[102] The incident that Ms Majar refers to apparently occurred on the land now comprising the Delissaville/Wagait/Larrakia Land Trust rather than on the proposed tenement. In addition the particular incident occurred 20 or 30 years ago and prior to the current mining and environmental regulatory regime coming into force. As mentioned previously, the grantee party has never explored in this part of the Northern Territory and there is no suggestion that it was the responsible party. While incidents of this type are of potential relevance in making an assessment pursuant to section 237(c), the particular occurrence related by Ms Majar, for the reasons enumerated, does not have a bearing on whether the grant of ELA 22959 would be likely to result in major disturbance to the relevant land and waters.
[103] In neither objection has the relevant native title party highlighted any convincing special physical circumstances of the subject land and waters that would render exploration of the type proposed by Falconbridge (Australia) Pty Ltd more likely to result in major disturbance. In DO02/48 the native title party suggested (OSC DO02/48 at para 98) that the fact that Alligator Billabong floods in the wet would result in such a characterisation and in DO02/49 (OSC DO02/49 at para 125) it raised the fact that the Reynolds River flows through much of the licence area and that whole of the subject area was black soil country.
[104] With respect to the suggestion that the annual flooding of Alligator Billabong would constitute a special circumstance is unsustainable. Most watercourses, flowing or not, flood during the Northern Territory wet season. Exactly why the flooding of this lagoon during the wet season would render it more likely that exploration would result in major disturbance is difficult to fathom. If anything the flooding of the billabong and surrounding country in the wet season would make it more likely that exploration would cease. Certainly there is no evidence before the Tribunal that this Billabong or the country surrounding it will be the subject of any exploration during the wet. Indeed the express intention of the grantee party is that “most work will occur during the dry season to minimise any environmental impact on waterways and access routes.” In addition, the fact that Alligator Billabong is a site of both community and cultural significance is also of importance as the grantee party has said that “cooperation of Traditional Owners will be sought to ensure all sites of significant social and cultural importance are protected.” In short, the stated intentions of the grantee party as to how it will operate are such as to render it unlikely that the annual flooding of this Billabong would result in major disturbance.
[105] The intended mode of operation of the grantee party is also of relevance to the contentions made in DO02/49. Again, the grantee party has specifically submitted that it will conduct its operations in a consultative and environmentally sensitive fashion. I have set out previously (at [34]) the grantee party’s contentions on its work program, and specifically its stated intention that “All exploration activity that might have significant impact will be properly cleared by the respective land stewards and modern practices will be employed to minimise impact on the region – be it environmental or social.”
[106] In previous inquiries the Tribunal has found that the existence of watercourses within a proposed tenement is not of itself a special circumstance in assessing the likelihood of major disturbance. In addition, in the context of the risk of exploration negatively impacting on watercourses, it is relevant to highlight Conditions 19-20 made pursuant to section 24A:
“19. The Licensee shall take such steps as are practical to minimise disturbance to the soil, rocks, rock formations, creeks and watercourses.
20. The Licensee shall take all precautions necessary to prevent contamination of underground and surface waters in the licence area.”
[107] The native title party quite properly has highlighted that ELA 22959 is located in black soil country. The Tribunal’s attention was drawn to certain factual findings of Toohey J about the Kilfoyle Plain to the south of the proposed tenement in the Daly River (Malak Malak) Land Claim Report. I have read the paragraphs referred to, but they offer little assistance in assessing the risks of exploration causing major disturbance to the particular land and waters under consideration in this matter. It is inherently difficult to try to juxtapose Land Claim Report factual findings about country some distance from the land and waters the subject of an expedited procedure objection inquiry. This is no exception. Certainly I am prepared to accept that the proposed tenement is comprised of black soil and that the land is subject to flooding in the Wet Season. These two circumstances of themselves do not establish that this area is environmentally or geologically sensitive. In fact there are huge areas of this part of the Northern Territory that are subject to flooding and which are comprised of black soil. The reference to Toohey J’s findings about the Kilfoyle Plain is illustrative of this. If there was evidence that exploration would be occurring at a time in a place such that it would result in interference with fauna, flora or community activities, bearing in mind the difficulties connected with the flood prone black soil country, then different considerations would arise. As it is, however, the grantee party had made it abundantly clear that it will conduct its operations in a manner designed to minimise environmental impacts and specifically will conduct most exploration activities in the dry season (in part) for this reason.
[108] I have formed the view that in neither matter does the evidence before the Tribunal establish that there is a likelihood of major disturbance within the meaning of section 237(c). Particular factors I have taken into account include:
(a)the absence of any communities located within the boundaries of either proposed tenement;
(b)the absence of any evidence that previous exploration activities has resulted in any major disturbance to the land and waters comprising the subject areas;
(c)in the case of DO02/48 evidence of extensive exploration and mining activity on and near ELA 22961;
(d)the absence of any evidence that either area contains environmental or geological features requiring special consideration;
(e)the fact that both proposed tenements are either wholly or substantially located within pastoral leases, with the likelihood of ongoing pastoral activity impacting on the relevant land and waters;
(f)the regulatory regime in force in the Northern Territory governing disturbance to land and waters by explorers;
(g)in DO02/48, the lack of opposition to exploration by Mr Marranya;
(h)the stated intention of the grantee party to carry out most exploration activity in the Dry Season, thus minimising any intersection with exploration activity and the times when flooding occurs;
the proposed work program as outlined by the grantee party;
(j)the absence of any evidence that the grantee party has either in the Northern Territory or in Australia generally, conducted its exploration activities in a manner which has unnecessarily caused damage to the human or physical environment of its operations;
(k)the stated intention of the grantee party to comply with all relevant legal requirements and to conduct its operations in a spirit of active consultation and cooperation and with the object of minimising impacts on the environment; and
(l)the application of the presumption of regularity to the grantee party.
[109] In these circumstances I am unable to find that the grant of the proposed tenements is likely to involve major disturbance to any land or waters concerned, or create rights, the exercise of which is likely to involve major disturbance to any land or waters concerned.
Determination
The determination of the Tribunal is that the grant of Exploration Licences 22959 and 22961 to Falconbridge (Australia) Pty Ltd are acts which attract the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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