Michael Page/Northern Territory/Norman Sydney McCleary
[2002] NNTTA 72
•3 May 2002
NATIONAL NATIVE TITLE TRIBUNAL
Michael Page/Northern Territory/Norman Sydney McCleary, [2002] NNTTA 72 (3 May 2002)
DO 01/78Application No:
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Michael Page (Native Title Party)
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The Northern Territory of Australia (Government Party)
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Norman Sydney McCleary (Grantee Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: John Sosso
Place: Brisbane
Date: 3 May 2002
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – misdescription of Objector in Form 4 – whether objection should be dismissed – recorded or registered sites – previous exploration/mining activity – legal principles – whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – whether there is likelihood of major disturbance to land or waters – presumption of regularity – protection under existing legislation – grantee party’s intentions – an act which attracts the expedited procedure.
Legislation: Native Title Act 1993 (Cth) ss 29, 32, 44H, 151, 237
Acts Interpretation Act 1901 (Cth) s 36
Cases: Angus Riley & May Forster on behalf of the Wirntiku, Milwayijarra and Ngapa
Groups/Northern Territory/Rodney Johnston & Motoo Sakurai DO01/70-71 Deputy President Franklyn, 17 April 2002
Chubby Jones & Ors/Western Australia/Taipan Resources N L WO99/621-622,
Deputy President Franklyn, 1 November 2000
Gabriel Hazelbane & Ors/Northern Territory/Johnston DO01/40/41, Deputy President Franklyn, 27 March 2002
Hazelbane, Luwanbi, Tambling & Ors/McCleary/Northern Territory DO01/79-81, Member Sosso, 26 April 2002
Little v Western Australia [2001] FCA 1706
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member
Sosso, 1 February 2002
Northern Territory/Ben Ward & Ors/Ashton Exploration & Ors DO01/3,
DO01/13, DO01/19-DO01/23, Member Sosso 21 December 2001
Page/Archer, Kastrissios, Langley/Northern Territory DO01/20, Member Sosso, 1
February 2002
Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440
Richard Evans on behalf of the Koara People/Western Australia/Australian Gold
Resources Ltd WO99/660, Hon C J Sumner 28 February 2000
Smith v Western Australia (2001) 108 FCR 442
Western Australia/Winnie McHenry WO98/125, Deputy President Franklyn,
28 July 1999
Temme v Automotion Australia P/L [2000] NSWSC 467
Vulcan-Hart Corp v Vulcan Australia Ltd (1994) AIPC 91-110.
Whittam v W J Daniel & Co Ltd [1961] 3 All ER 796
Hearing Dates: 12 February, 12 March 2002
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Government Party: Mr Daniel Lavery and Mr N Papandonakis Solicitor for the Northern Territory
Grantee Party: Mr John Goulevitch
REASONS FOR DETERMINATION
Background
[1] On 2 May 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 10004 (“the proposed tenement”) to Norman Sydney McCleary (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 18 blocks (approximately 41.1 square kilometres) and is located wholly within Perpetual Pastoral Lease (PPL) 1134, which is known as “Mary River”.
[3] On 5 December 2000 a native title determination application was filed with the Federal Court (D6018/2000). The name given to this application is “Mary River”, and the Applicant is Michael Page on behalf of the Jawoyn People. The application was entered on the Register of Native Title Claims on 4 January 2001. The Mary River application wholly covers the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 3 September 2001. Technically this was more than four months after the section 29(4) notification day of 2 May 2001 (section 32(3)), however 2 September 2001 was a Sunday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
[5] The Objector named in the Form 4 which was lodged, was one “Michael John Porter”. When contacted by the Tribunal, the solicitors for the native title party explained that this was an error and in fact, the Objector was Michael Page. In all subsequent documentation the native title party referred to Michael Page as the Objector. Michael Page is the Applicant for D6018/00.
[6] The grantee party made these submissions (GPCR at pp 2-3):
“The objector named in the objection lodged on the last day possible, 3 September 2001, is MICHAEL JOHN PORTER. It appears from email correspondence attached to the objection, between an officer of the NNTT and the representative for the OBJECTOR, that MICHAEL JOHN PORTER was not, at the time, a ‘claimant’ in the matter of DC00/18 and hence not a registered native title party [NTA S30(1)(a)]. As such the GRANTEE PARTY contends that the objection lodged on 3 September 2001, is invalid and should not have been accepted. It should now be rejected.
On 6 September 2001, after enquiry by an NNTT officer of the representative of the OBJECTOR (?PORTER/?PAGE), the name of the OBJECTOR was changed to MICHAEL PAGE (who, it appears, was a ‘claimant’ in the matter of DCOO/18). The change of OBJECTOR constituted the lodgement of a new objection on 6 September, 2001, which is 3 days outside the statutory 4 month period after the date of S29 advertisement (2 May, 2001). S32 (3) of the NTA provides no avenue for extension of the objection period. As such the GRANTEE PARTY contends that the objection lodged on 6 September, 2001, is invalid and should not have been accepted. It should now be rejected.”
[7] The native title party submitted (OCRGr at para 25) that the name “Michael John Porter” was included in the Form 4 by way of a typographical error, and that the Tribunal apply the “slip rule”.
[8] The government party did not make any submissions on this matter.
[9] The Tribunal has previously determined that a misdescription of the relevant claim number in a Form 4 did not justify the dismissal of the objection where it was clear that the objector was a registered native title claimant over the area of the proposed tenement – see Richard Evans on behalf of the Koara People/Western Australia/Australian Gold Resources Ltd WO99/660, unreported, Hon C J Sumner 28 February 2000.
[10] It must be borne in mind that Paragraph 1 of the Form 4 reads as follows:
“I, Michael John Porter, on behalf of the native title claim group referred to in Schedule A of an application for determination of native title filed in the Federal Court on 21 June 2001 (D6018 of 2000) (‘the application’), object...”
In short the naming of Michael John Porter is in the context of that person acting on behalf of the clearly (and correctly) described registered native title claim group. There is no doubt as to the identity of the relevant registered native title claim group. It is of relevance that both section 32(3) and section 75, make it clear that an expedited procedure objection is made by a native title party. A native title party, in turn, is defined by section 30 by reference to a registered native title claim (and claimants). All references to the lodgement of an expedited procedure objection application in the Act are focused on the lodgement and subsequent management (see also section 30(2) and (4)) of the objection by registered native title claimants. Accordingly in the context of the legislation the reference in paragraph 1 of Form 4 to the registered native title claim is, to my mind, the key descriptor. The named Objector in paragraph 1 in this matter is making the objection on behalf of the native title party and not on his own behalf.
[11] There are many Court decisions on the correction of misnomers, clerical errors and misdescription of parties (both plaintiffs and defendants). Leaving aside decisions based on the wording of specific statutes and rules of court, it is clear that in those instances where through a clerical error a party’s name is misspelt or otherwise incorrectly described, but that the other party (or parties) could be left in no reasonable doubt as to the identity of the misdescribed party, then the Courts will allow the correction of the error. This is not the case of the substitution of a new party, simply the correction of an error, and accordingly a statute of limitations will not prevent the correction – see e.g. Whittam v W J Daniel & Co Ltd [1961] 3 All ER 796 (where the word “Ltd” was omitted from the name of the defendant company) and Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440 (where the plaintiff was originally described as “Rainbow Spray Irrigation Pty. Limited” and was allowed to correct this error to refer to “Rainbow Spray Sales Pty. Limited”). In contradistinction when a totally distinct (and incorrect) person or entity is named as a party, and this mistake is sought to be remedied out of time, the Courts weigh up issues such as whether the mistake was misleading, whether it would cause reasonable doubt as to the identity of the parties and the nature and extent of the prejudice caused to the other parties by the mistake – see e.g. Temme v Automotion Australia P/L [2000] NSWSC 467.
[12] In this matter the expedited procedure objection application has identified the registered native title claim group. Neither the government and grantee parties were misled or confused as to the existence of the registered native title claim which is the foundation for the objection. The fact that the objector was misdescribed was unfortunate, but this misdescription is not of such a nature that it could be said that either the government or grantee parties were prejudiced. It would be different, for example, if both the objector and the claim group were misdescribed. It may well be that in such an instance that it could be said that the government and grantee parties were misled and that they would be prejudiced if the Tribunal permitted the correction of the error – see generally the comments of Olney J in Vulcan-Hart Corp v Vulcan Australia Ltd (1994) AIPC 91-110.
[13] Accordingly, the present misdescription of the objector is not a matter that warrants the dismissal of the objection on the basis of non-compliance with the requirements of Form 4. In this regard I refer to the following comments I made in Northern Territory/Ben Ward & Ors/Ashton Exploration & Ors DO01/3, DO01/13, DO01/19-DO01/23, unreported Member Sosso 21 December 2001:
“[68] A Form 4 is directed primarily to a government party and a grantee party. The type of information required in paragraphs 1-6 while of great importance (names and addresses), could not be said to be of such vital and unique significance that any sort of failure to strictly comply with all applicable paragraphs at the date of lodgment would render the objection application invalid such that the relevant information could not be provided during the inquiry process. Of course, if a Form 4 is lodged without a name and address of an objector, an argument could arise whether there is a valid Form 4 before the Tribunal. While it is not necessary to deal with this sort of hypothetical situation, an argument could be raised that the Tribunal does not have before it an objection as the document discloses no objector.
[69] While each matter has to be dealt with on its own terms, the ramifications of not accepting an expedited procedure objection application are so significant, that clearly it would not be consistent with the scheme and purpose of the Act to readily imply strict compliance with all applicable paragraphs 1-6 of Form 4 unless in a particular case it was shown by either the government party or grantee party that material injustice was caused by the failure to comply.”
[14] I determined in those proceedings that a Form 4 cannot be amended in a substantive manner after the expiry of the statutory four month time limit has expired. The Tribunal’s practice with respect to amendment of expedited procedure applications is set out in Part 3.4 of the Procedures Under the Right to Negotiate Scheme (as consolidated on 27 March 2002). In this matter the clarification of the misdescription of the Objector does not constitute a substantive amendment. A Form 4 provides the platform for an expedited procedure inquiry. While of critical importance, neither a native title party nor the government or grantee parties are limited by the information in that Form 4 in terms of contentions and other evidence they can present to the Tribunal. Obviously paragraph 7 of Form 4 is of central importance to the objection process, but providing the native title party has not supplied in its Form 4 patently incorrect, misleading and potentially prejudicial information, an error of the type currently before the Tribunal can be corrected at any time during the inquiry process. This is so, as the other information in the Form 4 correctly described the registered native title claim group, and it could not be said that the other parties were misled or prejudiced by the clerical error of inserting the wrong name of the Objector.
[15] Deputy President Sumner issued Directions for the conduct of the Inquiry and granted amendments to those Directions on 5 November 2001. A preliminary conference of the parties was convened on 1 October 2001 and on 5 November 2001 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. Following my appointment listings hearings were convened on 12 February 2002 and 12 March 2002.
[16] 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”.
[17] The parties have submitted written contentions to the Tribunal which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 12 December 2001
Contentions in Reply (“GPCR”) dated 27 February 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 17 December 2001
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 12 February 2002
Objectors’ Reply to the Contentions of the Grantee Party (“OCRGr”) dated 13 February 2002
Objectors’ Contentions re the Land Claim Report (“OCLC”) dated 5 March 2002
Grantee Party Contentions
Statement of Contentions of Grantee Party (“Gr1”) dated 20 December 2001
Grantee Party Reply to Statements of Contentions (“Gr2”) dated 25 January 2002
Evidence
Affidavits of Lazarus Ford, Roy Anderson and Bessie Coleman
[18] The native title party lodged Affidavits of Lazarus Ford, Roy Anderson and Bessie Coleman. Mr Ford’s Affidavit was affirmed on 7 October 2001 before Mr E J Lowe, a Commissioner for Oaths, Mr Anderson’s was affirmed on 28 September 2001 before Mr Mark Rumler, a Solicitor and that of Mrs Coleman was affirmed on 1 October 2001 before E C Ah Toy JP a Commissioner for Oaths.
[19] Each of these Affidavits is set out below:
Affidavit of Bessie Coleman
“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 10004. I have seen a map of the area of the ELA. Now produced and shown to me marked “BC-10004” is a map of the ELA.
2. There are a lot of sites on the map from men’s side, so I can’t know them. But them fellas ought to know and the young ones need to be taught. My uncles probably put those sites on that map when they were still alive.
3. I grew up at Mary River Station until my teenage years. I worked from 15 at Mary River Mine. My mum and my uncle were there. She took us all round there, digging yam and looking for porcupine.
4. I got involved in mining in the fifties and sixties. I’m not going to see that happen again. They leave their rubbish everywhere. That exploration will make it hard for our fishing places. Pollution and cyanide or any dirty water getting into our rivers. We want to go along and see what they are doing, and make sure they’re doing the right thing.
5. Me, I don’t like mining. Them men camping out there and drilling everywhere; I worry about pollution, them leaving rubbish everywhere. If I see I won’t go fishing, I won’t take our kids there with all that chemical stuff. I am worried about exploration putting things in the water and killing off fish and animals. I don’t want the kids to go swimming there. I don’t want them eating fish or turtle’ it might make them sick. Are they going to test the fish and foods we eat up there?
6. To me its all the same thing: mining, exploration, digging – its all disturbing the country. Drilling disturbs those hunting areas and changes the country. It will change the way we hunt on country. We don’t follow the roads. We go through the bush. We know the country. We go by motor car and footwalking to catch porcupine and kangaroo.
7. The area of ELA 10004 is for hunting and fishing both sides of the Mary River all the way upstream. We do all the time. I’ve been out there this year. I take the family. We camp on both sides of the river: Kakadu National Park side and station side. The ELA area is on the Mary River Station side of the Mary River. Kakadu National Park is on the other side of the river.”
Affidavit of Roy Anderson:
“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 10004. I have seen a map of the area of the ELA. Now produced and shown to me marked “RA-10004” is a map of the ELA.
2. I used to walk all over that country in ELA 10004. Not anymore, but I’ve been over in a chopper with Kakadu Parks mob. That one’s upstream from Jikoymarrawa (5370-6).
3. I’ve been out to Coronet mine, inside the area of ELA 10004, with them old men and with the pastoral mob. We used to muster cattle through there. I’ve been back in the last few years to look around and go camping and hunting.
4. I don’t want them to damage that country.”
Affidavit of Lazarus Ford:
“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 10004. I have seen a map of the area of the ELA. Now produced and shown to me marked “LF-10004” is a map of the ELA.
2. I live at Pine Creek in the Northern Territory.
3. We use the area of ELA 10004 for hunting and fishing. We go shooting kangaroo, pigs, and turkey. I last went up there in July this year with Owen Thompson and Shane Thompson. We drive up and go footwalking.
4. Exploration means drilling. It’ll scare away all the animals and ruin our hunting.
5. We’d be worried to keep going out shooting if the mining company mob is around. We might have an accident and shoot one of them. They might mad with us and tell us to stay out of their way or get off their track. They’ll complain if we are there, or if we are firing shots. If the mining company is there, we don’t go.”
[20] The government party points out (GPCR at paras 78, 84 and 87) that in every case the abovementioned deponents did not depose to be a member of the native title claim group. It is implicit in the various Contentions lodged by the native title party that each deponent is a member of the native title claim group, and in the case of Lazarus Ford and Bessie Coleman this is explicitly dealt with (OCLC at para 6). I have assumed for the purposes of this determination that each of the deponents is a member of the claim group.
[21] I have previously expressed the view that a person providing an Affidavit or Witness Statement should in that document expressly identify whether they are a member of the relevant native title claim group or whether they are a native title holder. Moreover, if they suggest that they are speaking either on behalf of certain land or waters, sacred sites or the claim group per se, they should also deal with their authority to do so. This issue was dealt with by R D Nicholson J in Little v Western Australia [2001] FCA 1706. His Honour considered an Affidavit by a Mr Bynder suggesting that there was a sacred quality attached to the whole of Lake Moore. The grantee party contended, inter alia, that Mr Bynder had failed to establish that he was properly qualified to speak about the native title party’s traditions in relation to areas or sites of significance. In accepting this contention, His Honour said (at [79]): “it is the case that Mr Bynder does not establish his qualifications to speak for the Badimia people so that his evidence has the weight of one Badimia person.” The same could be said of the deponents in this matter. None of the deponents has dealt with their qualifications to speak on behalf of the Jawoyn People, and this failure is a matter of some concern. I am prepared to accept their evidence, and I have not, for the purposes of this inquiry, given less weight to it, but again I highlight this matter because the manner in which this evidence is presented to the Tribunal is not ideal and a native title party does run the risk that the weight given to the evidence will be less than would otherwise be the case.
Expert Evidence adduced by the native title party
[22] In addition to the abovementioned Affidavits, the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy as well as the standard documents relating to rights conferred under exploration licences and the adequacy of the legislation dealing with sacred sites.
[23] I have considered this material in a number of previous expedited procedure objection inquiries, and, so far as is relevant to this matter, I adopt my analysis of this evidence which is set out in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, 1 February 2002. Moreover, I also adopt, so far as is relevant, the analysis of this material by Deputy President Franklyn in Gabriel Hazelbane & Ors/Northern Territory/Johnston DO01/40-41, unreported, 27 March 2002 (“Gabriel Hazelbane”) and Angus Riley & May Forster on behalf of the Wirntiku, Milwayijarra and Ngapa Groups/Northern Territory/Rodney Johnston & Motoo Sakurai DO01/70-71, unreported, 17 April 2002 (“Angus Riley”).
Land Claim Reports
[24] The native title party has sought to rely on two Reports by Aboriginal Land Commissioners appointed pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976, namely:
(a)the Jawoyn (Katherine area) Land Claim Report (No 27) of Kearney J; and
(b)the Jawoyn (Gimbat Area) Land Claim Alligator Rivers Area III (Gimbat Resumption-Waterfall Creek) (No.2) Repeat Land Claim Report (No 48) of Gray J.
[25] In both cases the land, the subject of the land claims, fell outside the boundaries of the proposed tenement. In Report No 27 the land claim was to the south, and in Report No 48 the land was to the east. I have previously dealt with the relevance of both of these Reports and so far as is relevant I adopt my analysis which is set out in paragraphs [20] – [30] of Hazelbane, Luwanbi, Tambling & Ors/McCleary/Northern Territory DO01/79-81, unreported, 26 April 2002. Although the subject proposed tenement is to the east of the tenement considered in DO01/79-81, nonetheless the reasons I outlined for weighing the relevance of these Reports, have direct application to this inquiry.
[26] I find that neither of these Reports is of much assistance to the Tribunal, and neither materially advances the position of the native title party.
Aboriginal Communities
[27] There are no Aboriginal communities located on or near to the proposed tenement. The native title party identified in its Contentions (OSC at para 39) two communities, namely Werebun and Pine Creek Town Camp. In the Form 4, however, the native title party also identified Kybrook Farm and Mary River Ranger Station as areas where members of the native title claim group reside. In that Form, both Pine Creek and Kybrook Farm are said to be 50 kilometres south west of ELA 10004 and Mary River Ranger Station is said to be approximately 10 kilometres north. The grantee party estimated (Gr 2 at p.3) that Werebun is 50 kilometres south of the proposed tenement, and this estimation of distance was not challenged.
Recorded or Registered Sites
[28] There are no areas or sites recorded or registered by the Aboriginal Areas Protection Authority within the area of the proposed tenement.
[29] In the Form 4 the following information was provided:
”There are several registered sites in the vicinity of the ELA area. It is likely that there are additional
sites in the vicinity. Registered and potential sites include:
(a) The ELA area is located within 10-20 km of the Bula Sickness Country, which is a regionally powerful area of cultural sensitivity with boundaries that remain undefined.
(b) Seven sites are recorded by AAPA within a 5-6 km radius of the ELA area, including 5370-3 Bombom, 5370-6 Jikoymarrwa, 5370-7 Lelerkiyn, 5370-9 Lurlkmoram, 5370-13 Yamarrkarni, 5370-20 an undocumented art site, 5370-21.
(c) Four sites have been recorded by AAPA within a 10 km radius of the ELA area, including 5370-5 Goli, 5370-14, 5370-17 Borlarri, and 5370-19.”
[30] Despite this very comprehensive list of recorded and registered sites, the actual Contentions of the native title party as well as the Affidavits lodged by members of the native title claim group, are devoid of any material identifying and explaining an area or site said to be of particular significance. In fact the only reference to a site is that given by Mr Anderson who makes a passing reference in his Affidavit (at para 2) to Jikoymarrawa. This is a recorded site (with a status rating of 10) located about 5 km from the northern boundary of ELA 10004.
Previous Exploration Activity
[31] The area of the proposed tenement has been subject to numerous grants of exploration and mining tenements over the past 50 years. Information supplied by the government party indicates that since at least 1951, tenements have been granted over the area comprising ELA 10004. Outlined below are details of previous mining and exploration tenements as supplied by the government party.
Mineral Lease A (Agicondi) – ML 36 A, 224 A, 225 A, 226 A.
Mineral Lease (Northern) – MLN 20, 34, 35, 36.
Mineral Claim (Northern) – MCN 4076, 4077, 4078, 4079, 4089, 4090, 4091, 4092, 4093, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4103, 4379, 4380, 4381, 4382, 4384, 4385, 4386, 4387.
Exploration Licence – EL 44, 4091, 4498, 5220, 5929, 6391, 7481, 7740, 7773, 8486, 8968.
Unfortunately the government party has not supplied in this inquiry, either information or mapping which would indicate whether any mining or exploration actually took place, and, if it did, during what period, over what areas and of what nature.
[32] Despite the absence of any information from the government party on previous exploration and mining activity in this area, the grantee party provided in Attachment “A” to the Contentions in Reply an extract from a document prepared by Andrew Drummond & Associates which is said to be an Independent Consulting Geologist’s Report for Arafura Resources N L. In this document the abovementioned firm of geologists set out at length the mining and geological background to the area covered by the proposed tenement. The extract outlines previous exploration activity by:
(a) United Uranium NL, 1967;
(b) Geopeko, 1981;
(c) Australian Coal & Gold Holdings Ltd and Troy Resources Ltd, 1985-1991;
(d) Mineral Resources Corporation Pty Ltd and Kakadu Resources NL, 1988-1990;(e) Aztec Mining Co Ltd, Dominion Mining Limited, Territory Goldfields NL and Northern Gold NL, 1990-1996;
(f) Aztec Mining Co Ltd, Normandy Metals Ltd and Northern Gold NL, 1992-1996;
(g) Aztec Mining Company Ltd and Normandy Metals, 1991-1994;
(h) Troy Resources, Aztec Mining Co Ltd and Northern Gold NL, to 1992;
(i) Aztec Mining Co Ltd, Troy Resources N L and Northern Gold N L, to 1998; and
(j) Dominion Mining and Minotaur Gold N L, 1994-1996.
[33] The document details the nature of the exploration activity undertaken in a very helpful manner. For example, with respect to the exploration by Mineral Resources Corporation Pty Ltd and Kakadu Resources between 1988 and 1990, the following information is provided:
“EL5220 CR90-166
The tenement was originally assessed by a 55 sample stream BLEG survey.
During the second year, 84 soil samples and 24 rock chip samples were taken in the northern parts of the tenement and along the north-western extent of the Coronet Fault. No near surface indication of extensive mineralisation was found.”
[34] No material is before the Tribunal which would in any way discount the accuracy of this analysis of previous mining and exploration activity. Accordingly I have formed the view that the area of the proposed tenement has been subject to extensive (and intrusive) mining and exploration activity for a number of decades.
Nature of the Proposed Exploration Activity
[35] In his Application for the Grant of an Exploration Licence, Mr McCleary provided this information on the proposed work program for the first year: “Literature review, obtain aerial photography, check previous ground work and do further … as required.” As for any exploration activity in subsequent years, Mr McCleary made the following statement: “Funding will be based on first years results. This E.L. will form part of a new public company ‘Arafura Resources’.” One matter which arose during the inquiry was the relationship of Mr McCleary to a number of companies referred to in the grantee party’s contentions, including Arafura Resources N L and Star Money Lenders Pty Ltd. In addition, the native title party contested the relevance of exploration activities conducted by Star Money Lenders Pty Ltd on EL 9672 which was dealt with in an Affidavit of Mr Goulevitch and attached to the grantee party’s initial contentions. In the event, the grantee party clarified (Gr2 at pp 1-2) the relationship of Mr McCleary to the abovementioned companies, and I was satisfied with the explanation. However, I have not taken into account in this determination the material supplied by Mr Goulevitch with respect to exploration activities on EL 9672.
Legal Principles
[36] 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 (“Moses Silver”).
[37] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
Section 237(a) – Interference with the carrying on of community or social activities
[38] The native title party contends (OSC at para 42) that the community or social activities of the native title claim group include:
(a)foraging;
(b)hunting, fishing and gathering of bush tucker;
(c)teaching children about traditional laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas or sites;
(d)quiet enjoyment and camping; and
(e)the community of native title holders looking after country, by visiting and maintaining sites. This activity is conducted by individuals with specific responsibility for that area.
However, the native title party goes on to contend “(t)hese activities occur over some or all of the licence area, and in its vicinity.”
[39] The evidence produced by the native title party, however, does not convincingly support these assertions. Mr Anderson deposes that he used to walk over the area comprising the proposed tenement. While referring to mustering cattle in this area, the only reference to relatively recent activity he has engaged in is a statement that he had “been back in the last few years to look around and go camping and hunting”. Clearly the purport of Mr Anderson’s evidence is that the activities he engaged in were some time in the past, and that he now either does not visit the subject area, or if he does so it is on an irregular basis.
[40] Mr Ford deposes to visiting the subject area for hunting and fishing and identifies two persons who accompanied him. Unfortunately it is not clear if the persons accompanying Mr Ford are also members of the claim group. However, even assuming that they are, it is clear from his Affidavit that such visits are not regular. Mr Ford affirmed his Affidavit in October 2001, yet the only visit to the site he mentions is one during July 2001. While I have no reason to doubt the veracity of Mr Ford’s evidence, it indicates that the social and community activities he engages in on the subject land are infrequent.
[41] Mrs Coleman deposes that she hunts and fishes on both sides of the Mary River with her family. Further she indicates that “we do it all the time. I’ve been out there this year. I take the family. We camp on both sides of the river.” Again while accepting this evidence, it suggests that the activities engaged in are localised and infrequent. Mrs Coleman’s Affidavit is dated 1 October 2001, yet it would seem that between January and September 2001 she had only visited the area of the proposed tenement on one occasion and then for an indefinite period of time.
[42] It is also of significance that no evidence is given of previous exploration or mining activities interfering with these activities. While Mrs Coleman deposes is a very general sense to the suggested deleterious impact that exploration and mining can have, and both Mr Anderson and Mr Ford express concerns about the possible impact of granting the proposed tenement, there is no reference to any specific damage to country or interference with hunting, gathering, teaching or even quiet enjoyment, caused by the exercise of rights under any of the numerous previous tenement grants.
[43] In summary, the evidence presented of community or social activities is limited. I accept that members of the native title claim group do use the subject area for hunting, gathering, fishing and other activities. I also accept that there is some concern about the impact that the grant of the tenement may have on these activities. However, the clear purport of the evidence presented is that the subject area is used only on an intermittent basis by members of the claim group, and then, it would appear, in localised portions. Moreover it is not clear from the evidence how many people visit the area on any one occasion, the duration of the visits and the significance placed on those visits. Further, there are no Aboriginal communities located on or adjacent to the proposed tenement. There is no suggestion or evidence that any of the Aboriginal communities previously mentioned will be directly and physically affected by the grant of the tenement.
[44] Regard also must be had to the fact that the proposed tenement is wholly contained within a pastoral lease, and that the holder of the pastoral lease has various legal rights to engage in lawful activities pursuant to the terms of the lease. Any activity carried on in accordance with the lease prevails over any native title rights and interests - see s 44H.
[45] The Tribunal has been presented with a considerable body of evidence from the government party about the legal regime in force in the Northern Territory which would prohibit the pollution of watercourses (as raised by Mrs Coleman) as well as a range of environmentally unsound practices by explorers (e.g. the prohibition on using firearms, starting fires, killing wildlife etc). There is no material before the Tribunal which would prevent the application of the presumption of regularity to the grantee party. The application of the presumption, in conjunction with the legal regime in force governing the exercise of rights of explorers leads to the conclusion that there is no real likelihood of the explorer directly interfering with the community or social activities of any of the deponents.
[46] In Smith v Western Australia (2001) 108 FCR 442, French J pointed out that the direct interference referred to in section 237(a) must be substantial in its impact upon community or social activities. Trivial impacts fall outside the scope of the kind of interference contemplated by the section. Moreover His Honour also explained that in assessing the risk of direct interference the Tribunal is entitled to have regard to other factors that so affect community or social activities that the impact of the proposed future act is insubstantial.
[47] In this matter, there is no material before me which could lead to the conclusion that the grant of the proposed tenement is likely to have a substantial impact on the community or social activities of the native title party. The past history of exploration and mining and the infrequent nature of the activities are such that if there is an intersection between exploration and these activities, it is likely to be restricted in time and place and minor in impact. Moreover, the ongoing use of the land and waters for pastoral activities also has to be taken into consideration in determining whether the impact of exploration on the community and social activities would be substantial.
[48] I find that on the material before the Tribunal that the grant of the exploration licence is not likely to directly interfere with the carrying on of the community or social activities of the native title claim group.
Section 237(b) – Areas or sites of particular significance
[49] The Tribunal has before it no evidence of any areas or sites of particular significance on or near the proposed tenement.
[50] While there is evidence of sites recorded and registered by the AAPA in the vicinity of ELA 10004 there is no suggestion in either the Contentions of the native title party and (more importantly) in the evidence of Messrs Anderson or Ford or that of Mrs Coleman of any specific area or site that is of particular importance to the native title party.
[51] Mrs Coleman says that there are “lots of sites from men’s side, so I can’t know them. But them fellas ought to know.” However neither of the male members of the native title claim group deposed to any such sites. As previously mentioned, the only reference to a site is by Mr Anderson who refers in passing to Jikoymarrawa. While mentioning this site, Mr Anderson specifically does not say that it is of any particular importance or significance.
[52] The fact that an area or site is recorded or registered by the AAPA does not of itself provide an answer to whether there is an area or site of particular significance within the meaning of section 237(b). While information about the recording or registering of an area or site can be helpful to the Tribunal, it is no way is determinative of an inquiry pursuant to this section.
[53] In addition, the mere assertion by the native title party that there are areas or sites of significance without identifying them, is unsatisfactory. On more than one occasion I have quoted with approval the following observations of Deputy President Franklyn in Western Australia/Winnie McHenry WO98/125, unreported, 28 July 1999 (at pp 16-17): “S 237(b) is concerned with sites of ‘particular significance in accordance with their tradition to the holders of native title’ … The Honourable C J Sumner held that the word ‘particular’ there used means ‘special or more than ordinary’. I would add the further qualification that the particularity of the significance be capable of identification … evidence of any such particular significance, unless clearly documented in circumstances having evidentiary value, is peculiarly within the knowledge of those claiming it.”
[54] There are two issues of identification that the Tribunal must have before it:
(a) the identification of a specific area or site; and
(b) identification of the particular significance or sacredness of that area or site.
In this inquiry the native title party has not dealt with either of these issues. It is not sufficient to make general assertions about areas or sites without specifying their location and then clearly enunciating the nature of the sacredness of the area or site to the native title holders. When a native title party fails to identify an area or site, let alone move on and deal with its significance, there is no foundation for the commencement of a section 237(b) inquiry by the Tribunal. As Deputy President Franklyn said in Chubby Jones & Ors/Western Australia/Taipan Resources N L WO99/621-622, unreported, 1 November 2000 (at p.9): “No question can arise as to likelihood of interference of such a site unless there is evidence of its existence.”
Section 237(c) – Major disturbance to land or waters
[55] All three native title party deponents express concern about the possible disruption to community and social activities and environmental damage that the grant of the proposed tenement may bring about. I have no reason to doubt that these concerns are genuine and that there is a level of unease amongst members of the native title claim group about further exploration activities on the land and waters that comprise ELA 10004.
[56] Nonetheless it is clear that there are no Aboriginal communities residing on or near to the area of the proposed tenement. In addition the subject tenement contains no areas or sites of particular significance, or, indeed any areas or sites that have been recorded or registered by the AAPA.
[57] This area has been subjected to extensive mining and exploration activities for a number of decades. The document prepared by Andrew Drummond & Associates Pty Ltd which I previously referred to, outlines at some length the exploration and mining history of this area going back to 1919 when Dr Jensen, the Chief Geologist of the Commonwealth Home and Territories Department praised the Coronet Hills area, advocating it as a site for a smelter to service the mines of the district and recommending a light railway connection to Pine Creek. Yet despite the extensive, and, at times, intensive, exploration activity that has occurred on and near to the proposed tenement, there is no evidence that this activity has resulted in major disturbance to the subject land or waters.
[58] The concerns expressed by Mrs Coleman are identical to those which were contained in an Affidavit she affirmed which I considered in Page/Archer, Kastrissios, Langley/Northern Territory DO01/20, unreported, 1 February 2002 at [40] – [41]. I adopt for the purposes of this inquiry my findings in that matter.
[59] The government party has submitted a considerable body of material outlining the regulatory regime in force in the Northern Territory which governs the exercise of rights of explorers. I considered that regime in some depth in Moses Silver and I adopt my findings for the purpose of this inquiry. However, on 1 January 2002 the Mining Management Act (NT) came into force which has modified the regulatory regime in some respects. This Act has been considered at some length by Deputy President Franklyn in Gabriel Hazelbane and Angus Riley and I adopt his analysis and findings for the purpose of this inquiry. In particular I agree with the following observations of Deputy President Franklyn in Angus Riley (at [19]): “the provisions of the Amendment Act have significantly added to the strength of the Northern Territory’s already strong legal regime for the management of mining exploration.” In essence, the Northern Territory has an extensive and well integrated regime which has attempted to recognise and accommodate native title rights and interests as part of the process for the granting and supervision of exploration licences. While this regulatory regime does not constitute on its own a complete answer to the type of questions that are posed as part of a section 237(c) inquiry, nonetheless, the existence of such a regulatory superstructure goes some way towards rendering it unlikely that that the grant of a tenement will result in major disturbance to the relevant land or waters.
[60] However, in addition to the evidence of the regulatory regime, the grantee party has also submitted that he will conduct any exploration activity in accordance with the Code of Conduct of Mineral Explorers in the Northern Territory.
[61] One issue which is of central importance in a section 237(c) inquiry, is whether there are any geological or environmental considerations peculiar to the subject tenement, that render it likely that the proposed exploration activity will result in major disturbance to land or waters. The native title party has submitted (OCR at para 51) that at least part of the licence area is likely to have a low water table, and, therefore, to give rise to dust upon drilling. The fact of the low water table, it was submitted, can be inferred from the evidence already before the Tribunal.
[62] There is no doubt that if there is evidence that an explorer may or will be drilling on a proposed tenement, and that due to a low water table, or the geological composition of the subsoil, dust will be caused, that this is a serious issue that has to be properly evaluated. In some situations where there are Aboriginal communities in close proximity to where the drilling may occur, or where the area of the drilling is rich in plant or animal life, the Tribunal may well determine that there is a likelihood of major disturbance. The existence of the regulatory regime previously discussed, will not, in these circumstances, resolve the matter. Moreover, the application of the presumption of regularity will also take the matter no further for either the government or grantee parties.
[63] There are two problems however, with the submission of the native title party. First, there is no specific evidence of the level of the water table or the nature of the subsoil on the proposed tenement. Nor is there any evidence about the climatic conditions that may render it more likely that dust would be distributed over a wider area. Secondly, even if I was prepared to make the inference suggested, there is no evidence of Aboriginal communities that would be affected by the dust (if there was any), nor any evidence of extensive community or social activities that would be interfered with, nor, finally, any evidence about plant or animal life that may be deleteriously impacted.
[64] Finally, as the proposed tenement forms part of a pastoral lease, the land and waters are already subject to the exercise of the lawful rights of the lessee. The exercise of these rights not only results in ongoing activities on the subject tenement but also impact on the exercise of the community and social activities of the native title party. In weighing up the likelihood of major disturbance, the existence of ongoing pastoral activities is one factor (although in the context of section 237(c), not a major one) that needs to be taken into account.
[65] I am unable to find, on the material presented to the Tribunal, that the grant of the proposed tenement 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 Licence 10004 to Norman Sydney McCleary is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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