Michael Page/ Northern Territory of Australia/Arafura Resources NL
[2002] NNTTA 14
•1 February 2002
NATIONAL NATIVE TITLE TRIBUNAL
Michael Page/ Northern Territory of Australia/Arafura Resources NL, [2002] NNTTA 14 (1 February 2002)
Application No: DO01/21
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of a Future Act Determination Application
MICHAEL PAGE (Native Title Party)
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ARAFURA RESOURCES NL (Grantee Party)
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NORTHERN TERRITORY OF AUSTRALIA (Government Party)
Tribunal: John Sosso
Place: Brisbane
Date: 1 February 2002
Hearing dates: 10, 22 October and 5, 30 November 2001, 24 January 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 John Goulevitch
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – protocols for guidance of parties – parties contentions – whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – major disturbance to land or waters – protection under existing legislation – no evidence of likelihood of major disturbance to land or waters – an act which attracts the expedited procedure.
Legislation: Mining Act (NT) s 24A
Native Title Act 1993 (Cth) ss 29, 32, 77, 146, 151, 237
Cases:Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13 1 February 2002 Member Sosso
Smith v Western Australia (2001) 108 FCR 442
Western Australia/Winnie McHenry WO98/125, 28 July 1999 Deputy President Franklyn
REASONS FOR DETERMINATION
Background
[1] On 13 December 2000 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 22269 (“the proposed tenement”) to Arafura Resources NL (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 18 blocks (a block is approximately 2.9 square kilometres) and is located wholly within Perpetual Pastoral Lease (“PPL”) 1134 which is known as “Mary River East”, PPL 1111 which is known as Ban Ban Springs and PPL 815 which is known as “Mary River West”.
[3] On 5 December 2000 a native title determination application was filed with the Federal Court (D6018/00). The name given to this application is “Mary River”, and the Applicant is Mr Michael Page. 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 within four months (9 April 2001) after the section 29(4) notification day (13 December 2000) – section 32(3). The named Objector, Mr Michael Page, is also the abovenamed Applicant. I have previously determined that the Form 4 Objection has been properly accepted by the Tribunal pursuant to section 77(2).
[5] Deputy President Sumner convened preliminary conferences of the parties on 3 May and 11 July 2001, and on the later date issued Directions for the conduct of the Inquiry. The various contentions made by the parties have been pursuant to those Directions. On 1 October 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 10 and 22 October, 5 and 30 November 2001 and 24 January 2002. On 22 October 2001 the Directions made by Deputy President Sumner were amended to take account of the late lodgement of Affidavits by the native title party and the matters consequential to that. At the hearing on 30 November 2001 I made further Directions for the supply of material in this inquiry.
[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, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 19-9-2001
Contentions in Reply (“GPCR”) dated 17-10-2001
Amended Contentions in Reply (“GPAC”) dated 31-10-2001
Final Contentions of the Government Party (“GPFC”) dated 21-12-2001
Native Title Party Contentions
Statement of Contentions of Objector (“OSC”) dated 3-10-2001
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 17-10-2001
Response to Tribunal Matters (“ORTM”) dated 5-12-2001
Reply to Final Contentions of Government Party (“ORFC”) dated 23-01-2002
Grantee Party Contentions
Statement of Contentions of Grantee Party (“GrSC”) dated 8-10-2001
Grantee Party Reply to Statement of Contentions (“GrRC”) dated 1-11-2001
Extra Contentions of Grantee Party (“GrEC”) dated 14-12-2001
Reply to Final Contentions of Government Party (“GrRFC”) dated 24-12-2001
.The Evidence
Witness Statements of Roy Anderson, Bessie Coleman and Lazarus Ford
[8] In addition to the above contentions, the native title party initially submitted a Witness Statement of Roy Anderson dated 28 September 2001 which was witnessed by Mr Mark Rumler, a Solicitor with the Northern Land Council.
[9] Although the Statement of Contentions of Objector made reference to an Affidavit by Bessie Coleman, no such document had, at that time, been lodged with the Tribunal and served on the other parties. On 18 October 2001, Mr John Goulevitch of Exploremin Pty Ltd, who represented the grantee party in this inquiry, submitted that the Tribunal should strike out references to Bessie Coleman in the relevant contentions and not give leave for the Affidavits to be lodged. On 19 October 2001 Mr Rumler, on behalf of the native title party, wrote to the Tribunal explaining that Affidavits of Bessie Coleman and Lazarus Ford had not been affirmed due to an oversight and that this would be remedied as soon as possible. Mr Rumler sought an extension of time to effect this course of action. This matter was dealt with at a Listings Hearing on 22 October 2001 where, after hearing from each of the parties, I determined to grant an extension of time to the native title party to lodge and serve Affidavits of Bessie Coleman and Lazarus Ford. Extensions of time were likewise granted to the government and grantee parties to respond to these Affidavits.
[10] Subsequently the native title party lodged with the Tribunal Affidavits of Bessie Coleman and Lazarus Ford, both of which were dated 28 October 2001 and both of which were witnessed by Mr Edward James Lowe a Commissioner for Oaths.
[11] Each of these Witness Statements is set out below:
Affidavit of Roy Anderson:
1.“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 22269. I have seen a map of the area of the ELA. Now produced and shown to me marked “RA- 22269” is a map of the ELA.
2. I live at Werenbun in the Northern Territory.
3. The area of ELA 22269 is Rodney Nelson’s country from his grandfather.
4. I’ve travelled through there on horseback doing mustering and buffalo shooting when I was a young fellow – Depression time. Sometimes I go looking around that country in a Toyota.
5. Andetdetla at Mary River station homestead is for young boys. It’s a ceremony place where they were taught culture, rock art, everything (grid reference 5371, at approximately 132° 01’ E, 13°29’ S). Them boys would be away from mother and sister for six months doing that business. They’d train them to walk properly and learn the country. I did that ceremony there, and I didn’t see my mother or my sisters for six months. One day we might go back and do that ceremony again.
6. If any of that oil or pollution gets put into that Frances Creek and comes down it’s no good. It might destroy that place, Andetdetla, which was my grandfathers’ ceremony place.
Affidavit of Bessie Coleman:
7.“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 22269. I have seen a map of the area of the ELA. Now produced and shown to me marked “BC-22269” 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. Makes us not want to go. I don’t like seeing that flagging and tape everywhere. If I see it 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. A lot of people used to camp around Frances Creek, and at Burrundie Siding and Mount Wells. I’ve been on the road from Mount Wells to Frances Creek and on to Mary River. I did fencing with my old husband, Geoffrey Coleman. We used to go fishing there along Frances Creek, a long time ago. Mum used to take us. We walked from Mount Wells to Frances Creek to the Mary River. We followed the railway line or a bush track.
8. We go to Frances Creek to dig yam, long yams. We go swimming in the dam at Frances Creek mine; we catch water goanna and porcupine. My mum and dad had a block called Speargrass Block on the McKinlay River, on Mount Wells road. That was a good place. McRobert’s billabong is nearby. We still use that road from Mt Wells across McKinlay River right into that Frances Creek area and through to the Mary River Station, through ELAs 9999, 10137, 9942, 22269 & 10167.
9. All around the Frances Creek area, including on the area of ELAs 22270 & 10137, we get that red ochre and flat rock, just next to it, for ceremony. There’s a lot at a hill just near the France Creek Mine, at about grid reference 1094. We use that flat rock for funerals: for the graves – to make them look real good; and that red ochre for funeral ceremonies; ceremonies when they become a young man; and for smoking the house. There’s a red ochre dreaming there somewhere.
Affidavit of Lazarus Ford:
“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 22269. I have seen a map of the area of the ELA. Now produced and shown to me marked “LF-22269” is a map of the ELA.
2. I live at Pine Creek in the Northern Territory.
3. Mary River station – there’s a site right there; Andetdetla. It’s a ceremony place right next to the station on the banks of the Frances Creek (grid reference 5371 at approximately 132° 01’ E, 13° 29’ S). Roy Anderson and Steve Wilika told me about it.
4. We go hunting up to the airstrip next to ELA 9942 (grid reference 5270- at approximately 131° 52’ E, 13° 31’ S). I do not need to ask permission to go up there. We drive along the road from Mount Wells up to the old airstrip, and down the gorge area in the northern part of ELAs 22269 (grid reference 5270 at approximately 131° 55’ E, 13° 33’ S), and along the road towards Mary River homestead. We shoot from the road. We also turn down to Frances Creek mine, going through the areas of ELAs 9999, 22270 & 10137. But you can’t go past the mine as that road is blocked off.
5. We go on the weekend, maybe every fortnight, with other traditional owners and family. In the school holidays in July this year, we went up there; with my kids and my brother’s kids. We go up at Easter.
6. We go shooting kangaroo, pigs, turkey. There’s good fishing at Frances Creek. Along the road where the Mount Wells track branches south to Frances Creek mine, going through ELAs 9999, 222710, & 10137, we get porcupine, long yam.
7. Exploration means drilling. It’ll scare away all the animals and ruin our hunting. All of those areas have got good water holes for kangaroo and pigs, and good roads and tracks for us to get around. If them fellas are out there they’ll scare off all those animals.
8. 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 get 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.
Land Claim Report
[12] The native title party also relied on certain findings by Mr Justice Kearney in his capacity as Aboriginal Land Rights Commissioner in the Jawoyn (Katherine area) Land Claim Report No 27 (referred to hereafter as “the Land Claim Report”). The native title party submitted to the Tribunal very short extracts from the Land Claim Report (pp 8, 20 and 36) and contended that the Tribunal should adopt the findings of the Commissioner, relying on section 146(b) of the Act (OSC at para 31). The government party’s response was that the correlation between the traditional owners as identified in the Report and the native title claim group was unknown, and even if there was a correlation, the extracts were of little, if any, relevance to the inquiry (GPCR at para 7(a)).
[13] The Tribunal has expressed its concern in other inquiries at the approach of the native title party submitting only short extracts of much longer Land Claim Reports, and then seeking that the Tribunal accept the relevance of the extracts without knowing the context in which the material was prepared. Certainly the contention of the government party has merit. As it is, the Tribunal has perused the whole Land Claim Report, and only on that basis will accept into evidence the short extracts referred to. The evidentiary worth of the extracts in this particular inquiry, however, is not great.
Aboriginal Communities
[14] There are no Aboriginal communities located on, or in the immediate vicinity of the proposed tenement. The native title party referred to Pine Creek Town Camp and Werebun Community as the nearest communities comprising members of the native title claim group. In fact both of these communities are located quite some distance from the proposed tenement, with Pine Creek, for example, being in excess of 20 km to the south, and Werebun Community being even further distant.
Registered or Recorded Sites
[15] The evidence before the Tribunal discloses that there are no sites on the area of the proposed tenement, registered or recorded by the Aboriginal Areas Protection Authority. There are two recorded sites located approximately 8 km to the south east of the proposed tenement.
[16] Both Roy Anderson and Lazarus Ford make reference to a ceremonial site named Andetdetla. It is situated, according to Mr Ford, next to the banks of Frances Creek. It is clear from the grid references given in Mr Ford’s Affidavit (at para 3) that this site is located outside the area of the proposed tenement. The grantee party has estimated (GrRC at p.2) that it is located more than 10 km from the proposed tenement.
Previous Exploration Activity
[17] The area of the proposed tenement has been the subject, over the past three decades, of numerous Exploration Licences. The government party informed the Tribunal that the following prior mining tenements were granted over the same area:
Exploration Licence: 84, 1093, 2047, 2094, 2996, 3174, 4246, 4460, 4744, 4750, 5721, 6130, 6336, 6397, 6507, 7138, 7486, 7513, 7705, 8032, 8138, 9104, 9172, 9193 and 9359.
[18] Of these Exploration Licences, the government party has provided information indicating that actual exploration activity occurred pursuant to EL 6336, 6397, 6507, 8032, 8138 and 9359. Maps provided by the government party show that exploration activity has occurred over most of the area of the proposed tenement, with particular activity in the central and far eastern portions, and with only the extreme north of the proposed tenement apparently not having been subject to activity by explorers.
The company reports provided by the government party would indicate the bulk of exploration activity occurred in the period 1989 to 1996 and included rock chip sampling, stream sediment sampling and rotary air blast drilling.
A number of small mining tenements (Mineral Claim Northern and Mineral Lease Northern) have been granted in the immediate vicinity of the proposed tenement, located mainly to the west and north west. In addition the proposed tenement is almost surrounded by land and waters which are the subject of applications for exploration licences. Finally there are two existing exploration licences in the vicinity of the proposed tenement - one to the west (EL 8313 – which is held by the grantee party) and the other to the east (EL 9104).
[19] In short, the area comprising the proposed tenement, as well as the land and waters immediately adjacent to it, have been subject to quite extensive exploration and mining activity for some time. Almost the entire area of the proposed tenement, it would appear, has been subject to mining exploration activity of one form or another over the past 15 years.
Nature of the Proposed Exploration Activity
[20] The government party lodged with the Tribunal a copy of the grantee party’s Application for the Grant of an Exploration Licence. In that document the grantee party indicated that its proposed work program for the first year would include stream sediment sampling, mapping and prospecting, R/C sampling and obtaining “aero mags”. The stated work program for subsequent years was described as: “further sampling with possible scout drilling – dependant upon 1st years results.”
[21] In its Statement of Contentions, the Grantee party outlined procedures it puts into place for consulting with traditional owners prior to the commencement of field operations (p 2), for inspection of the Sacred Sites Register (p 3) and for its adherence to the Code of Conduct for Mineral Explorers in the Northern Territory (p 4).
[22] The Tribunal has before it evidence of the grantee party’s intentions if the exploration licence is granted, and in these circumstances it is not appropriate to presume that the grantee party will exercise all of the rights available to it, as was contended by the native title party (OSC at para 16). It should be noted, however, that this submission of the native title party was made prior to the grantee party lodging its initial contentions.
Legal Principles
[23] I adopt, for the purposes of this inquiry, the legal principles set out by me in paragraphs 20 – 47, 49 – 62, 86 – 107 and 135 – 140 in Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13 1 February 2002.
[24] 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 the native title in relation to the land or waters concerned;
(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
[25] The native title party initially contended (OSC at para 43) that the community or social activities of the native title claim group include:
(a)foraging, with reliance placed on the findings in the Land Claim Report;
(b)hunting, fishing and gathering of bush tucker – Affidavit of Bessie Coleman at paras 3 and 6-8;
(c)gathering of mineral resources for manufacture of tools and implements – Affidavit of Bessie Coleman at para 9;
(d)teaching children about traditional laws and customs – Affidavit of Bessie Coleman at paras 5 and 8;
(e)religious activities – Affidavit of Bessie Coleman at para 8;
(f)quiet enjoyment and camping grounds – Affidavit of Bessie Coleman at para 3 and 6-8;
(g)native title holders actively looking after country by visiting and maintaining sites – Affidavit of Roy Anderson at para 4.
[26] Subsequently the native title party lodged the Affidavit of Lazarus Ford. In his Affidavit, Mr Ford deposed that he goes hunting up to the airstrip located next to ELA 9942. This airstrip is located approximately 5 km to the north west of the proposed tenement. From the airstrip, Mr Ford deposes that he drives along the road from the airstrip and down the gorge area in the northern portion of the proposed tenement, and then along the road towards the Mary River Homestead. He also drives towards the Frances Creek mine, going through the area comprised of ELA 9999, 22270 and 10137. He shoots kangaroos, pigs and turkey from the road, and fishes at Frances Creek. Going through the last mentioned mining tenements, he collects long yam and hunts porcupine. At Frances Creek mine the children swim in the dam and fish. In the mine area, red, white and yellow ochre is collected for funeral ceremonies and art work – see paras 4, 6 and 7.
[27] Mr Ford deposed that these trips occur at a weekend, and approximately once every fortnight and at Easter. Persons going include other “traditional owners” and family. During the July 2001 school holidays he went there with his children as well as his brother’s children – para 5.
[28] Bessie Coleman expressed concern (para 6) that exploration activity might disturb and change the country and change the way the claim group hunts. She was also concerned about pollution of watercourses killing fish and animals, and possibly making sick the children who swim and catch fish and turtles in them (para 5). She also expressed concern about men camping out on country and drilling everywhere and seeing flagging and tape (para 5).
It should be noted that the Second Schedule Conditions (section 24A of the Mining Act) specifically require explorers to ensure that survey markings must be of a temporary nature and removed from the licence area at the end of an exploration program (Condition 6 of the Second Schedule Conditions). Consequently if there is any concern about flagging and tape placed on the tenement by the grantee party, it would only a short term matter, and such material has to be removed at least by the end of exploration activities.
[29] The government party made these contentions in reply (GPAC at paras 14-15):
“14. … The specific locations at which the fishing, hunting, foraging and ceremonial activities are said to occur are patchily identified, the overall range where such activities can be carried out is not stated; the seasonal variations in the game, fish or item sought, the number of persons engaged in these activities; all are unstated.
15. As to frequency of excursions (presumably hunting/fishing), Mr Ford says somewhat confusingly ‘we go on the weekend, maybe every fortnight’ but then states ‘we went up there’ in July this year and they ‘go up at Easter’. Where ‘there’ is is uncertain.”
[30] The grantee party made an extensive reply to the material contained in each of the Affidavits, however, of particular relevance was its evidence about how it conducted its exploration activities (GrRC at p.3): “Apart from one occasion … all exploration conducted by the GRANTEE PARTY and its partners in the Frances Creek area over the past 6 years has been based out of Pine Creek. Personnel commuted to and from the exploration sites daily. The exception was when a soil sampling crew camped for approximately one week at one of the man-made dams at the abandoned iron ore mine.”
[31] As previously outlined, the only Aboriginal communities referred to by the native title party – Pine Creek Town Camp and Werebun are both located outside of the area of the proposed tenement and neither are in the immediate vicinity.
[32] There is little evidence before the Tribunal that members of the native title claim group make extensive, or prolonged use of the land or waters of the proposed tenement, for community or social activities.
[33] The evidence of Mr Anderson relates solely to the Andetdetla ceremonial site, which is located more than 10 km from the proposed tenement. He did not depose to engaging in any activities on the proposed tenement.
[34] Bessie Coleman’s evidence is also not particularly helpful in this regard. She points out at paragraph 7 of her Affidavit that people “used” to camp around Frances Creek etc and “we used to go fishing there along Frances Creek, a long time ago. Mum used to take us.” She also says that she walked from Mount Wells to Frances Creek following a railway line or bush track. All of this evidence apparently relates to activities that occurred a number of years ago when she was a child or when she was married to her previous husband (Geoffrey Coleman). She does not depose that any of these activities are current.
[35] Bessie Coleman, however, does depose that “we” go to Frances Creek to dig yams and swim and catch food in the dam at Frances Creek mine. However who “we” are is not made clear, nor is the frequency of the visits, their duration or their importance to the members participating.
[36] The grantee party contended that the distance between the proposed tenement and Burrundie Siding and Mount Wells, which were mentioned in paragraph 7, is over 20 km. Moreover it is pointed out that the bush track used by Bessie Coleman between Mount Wells and Frances Creek only passes through the proposed tenement for 1.5 km of its 40-50 km length. It also deposes that there is no railway line through the proposed tenement, with the old railway line servicing the Frances Creek iron ore mine terminating 3-4 km to the west of the proposed tenement (GrRC at pp 3-4).
[37] The vast bulk of the evidence given by Mr Ford relates to hunting and social activities that occur outside of the area of the proposed tenement. While I accept that hunting and fishing trips occur once a fortnight and during holiday periods (Easter and July school holidays), the nature of these activities seems to have little bearing on the land or waters of the proposed tenement. Mr Ford deposes that these trips seem to start at an airstrip to the west of the tenement and then proceed to areas to the north east, east and south east of the proposed tenement. Insofar as hunting occurs on the area of the proposed tenement, no detail is provided of which areas of the tenement are used, for what periods and for what purpose.
[38] Insofar as I accept that hunting, foraging and other activities may occur on the proposed tenement, there is no evidence that any of the previous exploration activity over the past 15 years has had a material and deleterious impact on such activities. The evidence of Bessie Coleman apparently relates to mining activities that occurred some decades ago (she refers to the Mary River Mine in the 1950s and 1960s – paragraphs 3 and 4), which have little relationship to the type of exploration activity currently permitted in the Northern Territory.
[39] Reliance by the native title party on the Land Claim Report so far as foraging on the proposed tenement is concerned, is less than satisfactory. A reading of that Report indicates that while Justice Kearney did find that the Jawoyn People had a traditional right to forage over traditional country, he said that the “evidence related largely to the southern part of the claim area” (p.36). The southern part of the claim area related to country to the east and south east of Katherine, which is a very significant distance from the area of the proposed tenement.
[40] In Smith v Western Australia (2001) 108 FCR 442, French J made these observations on the proper interpretation of section 237(a) (at 451):
“The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section.”
His Honour went on to point out that the evaluation was contextual (at 451):
“The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial.”
[41] In this inquiry the evidence discloses that:
(a) the area of the proposed tenement in relation to the area over which the stated community and social activities occur, is quite limited;
(b) those activities occur over land and waters that are already subject to exploration and mining activities;
(c) the proposed tenement and surrounding areas are wholly contained within pastoral holdings, the lessees of which have various legal rights to engage in pastoral activities;
(d) the unlimited and indiscriminate use of firearms to hunt for animals is already not allowed, and it is not clear whether the exploration activities on the proposed tenement would in any significant way substantially impact on the legal shooting by the native title claimants that already occurs;
(e) there is an extensive regulatory regime in force in the Northern Territory which would prohibit the pollution of watercourses of the nature feared by Bessie Coleman (GPAC at para 40), as well as a range of environmentally unsound practices by explorers (e.g. prohibition on using firearms, starting fires, killing wildlife etc – Second Schedule Conditions); and
(f) there is no evidence that previous exploration activity on the proposed tenement impacted on the community or social activities of the native title holders.
[42] Overall, there is insufficient evidence before the Tribunal for it to find that there is a real chance or likelihood that the act will directly interfere with the carrying on of the community or social activities of native title holders. Insofar as there is a likelihood of an intersection between exploration activities on the proposed tenement and the community and social activities of native title holders, it is likely to be an insignificant one. Any impact on native title holders would be insignificant and of very short duration. Certainly in the context of all the other legal activities on and around the proposed tenement, exploration activities on the proposed tenement would be likely to have an insignificant impact on the native title claim group’s activities.
Section 237(b) – Areas or sites of particular significance
[43] The native title party has adduced no evidence that there are any areas or sites of particular significance on the proposed tenement. The AAPA has provided information that there are no sites recorded or registered on the area of the proposed tenement.
The native title party has relied upon an Affidavit by Mr John Wilson Stead, an anthropologist employed by the Northern Land Council who alleges that the Register kept by the AAPA is unlikely to be accurate or complete for all sites or areas of significance within an area. However, the native title party failed to produce any evidence that the AAPA is deficient with respect to any areas or sites of particular significance on the proposed tenement. Although the native title party has adduced contentions with respect to other tenements (ORTM at para 10), nothing has been produced in relation to this tenement other than broad assertions.
If a native title party asserts that there is an area of site of particular significance, then, as Deputy President Franklyn has determined, both its location and particular significance must be capable of identification by the party making the assertion - Western Australia/Winnie McHenry WO98/125, 28 July 1999. As indicated, there is no material before the Tribunal which could lead to a conclusion that there are any areas or sites of particular significance on the proposed tenement.
[44] In fact, the only site brought to the attention of the Tribunal by the native title party is Andetdetla which is located downstream of Frances Creek. The grantee party estimated (GrSC at p 3 and GrRC at p 2) that Andetdetla is located at least 10 km from the proposed tenement.
While Bessie Coleman refers to a “red ochre dreaming there somewhere” (para 9) in relation to the Frances Creek Mine, no other information is given which would assist the Tribunal.
[45] Mr Anderson deposed that Andetdetla is a ceremony site for young boys where they were taught culture, rock art etc (paragraph 5). He seems to indicate that these ceremonies are historical only when he says (at para 5): “One day we might go back and do that ceremony again.” Mr Ford’s concern is that pollution might get into Frances Creek and destroy Andetdetla.
[46] Mr Ford also mentions Andetdetla, but says (at para 3): “Roy Anderson and Steve Wilika told me about it.” In short, there is no direct evidence from Mr Ford about the site, rather his passing reference is limited to the fact that he was told about it by Mr Anderson and Mr Wilika. He does not seem to have any personal knowledge of the site or any involvement in ceremonies conducted there.
[47] The government party’s contention in this regard is as follows (GPAC at para 23):
“The affidavit material posited by the Objectors simply does not establish the how, when, where and why the substantial impact on any area or site of particular significance is likely to occur. The Andetdetla site is seemingly unused and unfrequented and there is no allegation that the many years of pastoral activities – for example from Mr Anderson who worked in the pastoral industry as a buffalo hunter there – have interfered with or damaged it in any way.”
[48] Even if the Tribunal accepts that the Andetdetla site is one of “particular significance” (and there is not enough evidence to that effect), there is certainly little if any material indicating that the future act would be likely to interfere with it.
[49] The Tribunal has before it a range of evidence on the regulatory regime in force in the Northern Territory, which has been designed to protect sites of significance. It also has extensive evidence concerning conditions imposed on grantees, designed to prevent the type of action (eg polluting watercourses) which in this instance is the perceived threat of interference to the site. A licensee will be required to minimise disturbance to creeks and watercourses (condition 12 of the Second Schedule Conditions), to remove rubbish and waste (condition 14) and to take all precautions necessary to prevent contamination of underground and surface waters (condition 15).
[50] There is no evidence, or suggestion, that previous exploration activity in the area around Frances Creek has resulted in pollution discharges that have damaged the site in any way. Likewise, as the government party contends, there is no evidence that pastoral activity has interfered with the site.
[51] French J explained in Smith that the word likely (at 450): “requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s.237.” In this inquiry not only is there insufficient evidence that the site in question is of particular significance to the native title claim group, but even if it were, there is no evidence that the doing of the future act would pose any risk of interference to it.
Section 237(c) – Major disturbance to land or waters
[52] The native title party made these submissions regarding concerns related to section 237(c) (OSC at para 70):
“The Objector is concerned about major disturbance to land or waters within or in the vicinity of the licence area:
a. Bessie Coleman is concerned about miners leaving their rubbish everywhere, and about poison, cyanide or dirty water getting into the rivers and affecting their fishing and swimming places [4]. She doesn’t like seeing flagging and tape everywhere. She worries about chemicals affecting her kids and the food they eat [5]. She says that drilling disturbs the hunting areas and changes the country. It will change the way they hunt on country [6].
b. Roy Anderson is worried about oil or pollution destroying the site at Andetdetla.”
[53] Subsequently Mr Ford’s Affidavit was lodged in which he expressed concerns about drilling scaring away animals and ruining hunting (paragraph 7).
[54] The previously mentioned material on past exploration activity adduced by the government party, indicates that the proposed tenement has been subjected to considerable exploration activity. In addition, large areas of the proposed tenement have been subject to various forms of exploration.
[55] The Tribunal also has before it a considerable array of evidence produced by the government party on the regulatory regime in force governing the exercise of rights under exploration licences and requiring the rehabilitation of land or waters subject to exploration activities.
[56] There is no primary evidence before the Tribunal that any of the previous exploration activities have resulted in any major disturbance to land or waters in the area of the proposed tenement.
While Bessie Coleman recounts her experiences working at the Mary River Mine in the 1950s and 1960s, the government party has produced to the Tribunal detailed information on the extensive and relatively strict regime in force now for controlling the activities of persons engaging in exploration and mining activity. Whatever the law and practices may have been four decades ago in the Northern Territory, it is clear that currently a much stricter regulatory framework is in place to govern mining activity.
[57] It must also be appreciated that this is an exploration licence. There is a considerable difference between the activities permitted under an exploration licence and those that can be accommodated under a mining tenement. The grantee party lodged with the Tribunal a series of photographs which compared “major disturbance” under mineral leases with “substantial disturbance” under exploration licences – Affidavit of John Goulevitch, Attachment JG 7. While the Tribunal does not place any particular weight on these particular photographs, nevertheless they are illustrative of the fact that mining leases almost inevitably entail much higher impact activities than those contemplated by, and allowed pursuant to, exploration licences.
[58] The grant of an exploration licence does not inevitably lead to the grant of a mining tenement. As the government party pointed out, this is a separate future act, and one requiring a completely distinct process under the Act (GPAC at para 35).
[59] While there is a large body of material about the incidence and range of exploration activities on the proposed tenement, there is nothing said in either the Affidavit of Mr Lazarus Ford or that of Mr Roy Anderson, that any of the previous exploration activities on the proposed tenement, or indeed any previous or current exploration or mining activity in surrounding areas, has materially impacted on the land or waters such as to interfere with social or community activities, or otherwise cause concern.
Insofar as Mr Ford has travelled around this country for decades, having engaged in cattle mustering and buffalo shooting as far back as the “Depression time” (presumably the Great Depression of 1929-1939), and still looks “around that country in a Toyota”, it would be sensible to assume that if there had been major disturbance to any land or waters, he would have informed the Tribunal. Instead, Mr Anderson, who I have no reason to doubt is an Elder who can speak on behalf of this country, does not mention any particular damaging by-product to the land or watercourses which he has observed as having resulted from recent exploration activity.
[60] While it is appropriate and germane to the Tribunal’s inquiry that the native title party raises the concerns of native title holders, in weighing up the risk of exploration activities causing major disturbance, the lack of any evidence of problems resulting from any of the extensive exploration activity carried on in this area, is a significant omission by the native title party.
[61] Consequently, the evidence before the Tribunal indicates that:
(a) hunting and gathering activities by the native title claim group appears to be concentrated in the northern portion of the proposed tenement (along Frances Creek and the gorge area – see Affidavit of Lazarus Ford at para 4);
(b) the area of the proposed tenement has been subject to previous exploration activity;
(c) the area immediately surrounding the proposed tenement has also been the subject of previous exploration activity and has current mining tenements;
(d) there is no material indicating that previous exploration activity has had a deleterious impact on the land or waters comprising the area of the proposed tenement;
(e) there are no Aboriginal communities on or near the proposed tenement;
(f) there is no evidence that previous exploration activity on the proposed tenement has resulted in Frances Creek or other watercourses being polluted;
(g) there is no evidence that the geological make up of the tenement area is in any way fragile, or there is any other special physical circumstances such that exploration activity of the type identified could result in disturbance to land or waters;
(h) the proposed tenement is wholly contained within three pastoral properties, with ongoing pastoral activity impacting on the land and waters concerned;
(i) there is an extensive regulatory regime in force aimed at strictly controlling the exercise of rights under an exploration licence and preventing environmental damage to land and waters;
(j) the grantee party has lodged with the Tribunal, evidence of how it has conducted exploration activities previously, particularly focusing on successful rehabilitation of sites and its compliance with the Code of Conduct for Mineral Explorers in the Northern Territory.
[62] I am unable to find on the evidence adduced 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 22269 to Arafura Resources NL is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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