Michael Page/Northern Territory of Australia/Grant Robert Archer; Demetrios Jim Kastrissios; David John Langley

[2002] NNTTA 19

NATIONAL NATIVE TITLE TRIBUNAL

Michael Page/Northern Territory of Australia/Grant Robert Archer; Demetrios Jim Kastrissios; David John Langley, [2002] NNTTA 19 (1 February 2002)

Application No:  DO01/20

IN THE MATTER of the Native Title Act 1993 (Cth)

-     and  -

IN THE MATTER of a Future Act Determination Application

Michael Page (Native Title Party)

-     and  -

Northern Territory of Australia (Government Party)

-     and  -

Grant Robert Archer, Demetrios Jim Kastrissios, David John Langley (Grantee Party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:       John Sosso

Place:             Brisbane

Date:              1 February 2002

Hearing dates:          10 October, 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:         Self represented

Catchwords:  Native Title – future act – proposed grant of exploration licence – expedited procedure objection application – 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 – an act which attracts the expedited procedure.

Legislation:    Native Title Act 1993 (Cth) ss29, 32, 77, 146, 151, 237

Cases:Chubby Jones & Ors/Western Australia/Taipan Resources NL WO99/621-622 Deputy President Franklyn 1 November 2000

Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory

DO01/13 Member Sosso 1 February 2002

Violet Drury/Western Australia/Giralia Resources N.L. WO00/93, 18 May 2001 Deputy President Franklyn

REASONS FOR DETERMINATION

Background

[1] On 13 December 2000 the Northern Territory (“the government party”) issue a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 10418 (“the proposed tenement”) to Grant Robert Archer, Demetrios Jim Kastrissios and David John Langley (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.

[2] The proposed tenement covers an area of 22 blocks (a block is approximately 2.9 square kilometres) and is located wholly within Perpetual Pastoral Lease 1134, which is known as “Mary River East”.

[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 October, 5 and 30 November 2001, and 24 January 2002.  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

Final Contentions of the Government Party (“GPFC”) dated 21-12-2001

Native Title Party Contentions

Statement of Contentions of Objector (“OSC”) dated 4-10-2001
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

Letter from Mr Kastrissios (“Gr1”) dated 9-10-2001.

The Evidence

Witness Statement of Bessie Coleman

[8] In addition to the above contentions, the native title party also submitted a Witness Statement of Bessie Coleman dated 1 October 2001. Although the native title party referred in its Statement of Contentions of Objector to an Affidavit of Roy Anderson, no such Affidavit was ever lodged with the Tribunal or circulated to the other parties.  Accordingly the only Witness Statement before the Tribunal in this Inquiry is that of Bessie Coleman.

The Witness Statement of Bessie Coleman was signed and witnessed by E C Ah Toy JP. This Statement is set out in full below:

“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 

10418.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “BC-10418”   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.   We go along Evelyn Creek for fishing.  Near the old Oenpelli Road and the crossing there’s a place called Blue Hole; a real good fishing place on the Mary River.  We go any time we want.

5.   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.

6.   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?

7.   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. 

8.   I’ve been to Wandie Mine.  We use that road from Pine Creek to get to the Wandie Mine and Wandie Creek.  We followed the creek up looking for turtle.  We go fishing in that country all along Wandie Creek, looking for fish and turtle

9.   The road through the ELA goes all the way through.  It’s a shortcut to Werenbun.  I’ve been on that back road.  That Werenbun mob use it all the time.”

Land Claim Report

[9] 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 that 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 were a correlation, the extracts were of little, if any, relevance to the inquiry (GPCR at para 7(a)).

[10] The Tribunal has expressed its concern in other inquiries at the approach of the native title party in 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.  The evidentiary worth of the extracts in this particular inquiry, however, is not great.

Aboriginal Communities

[11] The evidence before the Tribunal discloses that there are no Aboriginal communities situated on the area of the proposed tenement. The native title party refers to Aboriginal communities at Pine Creek Town Camp and Werenbun Community. Pine Creek is approximately 38 km west of the proposed tenement.

Recorded or Registered Sites

[12] There is no evidence before the Tribunal of any recorded or registered site in the area of the proposed tenement. The Tribunal has been supplied with a map which indicates that in the vicinity of the proposed tenement there are three recorded sites, and a further recorded site is located in excess of 15 km to the north of the proposed tenement. There are no registered sites located in the vicinity of the proposed tenement.

[13] In addition there is no identification in the Witness Statement of Bessie Coleman of any  site or area of particular significance, or indeed of significance per se. Insofar as reference is made to areas or sites, it is limited to a general statement about sites known to men, which she doesn’t know.

Previous Exploration Activity

[14] The area of the proposed tenement has been subject to numerous previous exploration and mining grants by the Northern Territory Government. Outlined below are details of previous mining tenements over the same area as initially supplied by the government party:

Exploration Licence: 4492, 4851, 5094, 5516, 6506, 6537, 6546, 6792, 6793, 7007, 7584, 7678, 7886, 7988, 8519, 8555, 9051, 9212, 9597.

Mineral Lease (Northern): 64, 66,

Mineral Claim (Northern): 241, 242, 934, 1913, 1927-1930, 2399-2403, 2435-2438, 2451-2457, 2461, 2944-2948, 2958, 2978-2995, 3042-3056, 3062, 3063, 3068-3076, 3864-3870.

The proposed tenement also has in the south eastern section a current Mining Lease (Northern) – (MLN 66).  This lease was granted on 8 November, 1963.

[15] The government party has also provided the Tribunal with detailed maps setting out the areas of the proposed tenement subject to previous exploration and mining activities. It would appear that the following Exploration Licences have resulted in exploration activity: ELA 5094, 5516, 7584, 7678, 8198, 8519 and 9051. In addition the grantees of Mineral Claims 2435, 2436, 2437, 2438, 2399, 2400, 2401, 2402 and 2403 have also engaged in activities on the proposed tenement.

[16] Almost the entire area of the proposed tenement has been subject to some form of exploration activity. The type of activities reported by grantees as having occurred, include reverse circulation drilling, rock chip sampling, stream sediment sampling and soil sampling. Company Reports of these activities range from the early 1980s through to the late 1990s.

[17] In short, the area of the proposed tenement has been subject to intensive and various exploration activities for some years, with almost no portion of the tenement not subjected to some form of exploration activity. Maps supplied by the government party also indicate that the areas to the north, north east and west of the proposed tenement have been the subject of fairly intensive exploration and mining activity.

Nature of the Proposed Exploration Activity

[18] Although the grantee party gave no information to the Tribunal on their intentions, 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 indicates that their work program for the first year will be research of previous exploration, stream sediment sampling, rock chip sampling and assaying. If there are “encouraging results”, this will be followed up by further stream sediment and rock sampling followed by other exploration activity.

[19] The native title party submitted that, in the absence of any material before the Tribunal of the grantee party’s intentions with respect to work programs and the like, the Tribunal should decide the objection on the basis that the grantee party will exercise all of the rights available to it (OSC at para 16).

[20] In the absence of any evidence by a grantee party of its intentions, the Tribunal is entitled to work on the assumption that the grantee party will, subject to the regulatory regime in force, fully exercise its legal entitlements. For the purposes of this inquiry, the Tribunal has operated on that assumption.

Expert Evidence Adduced by Native Title Party

[21] In addition to the Witness Statement of Bessie Coleman, the native title party also lodged an Affidavit by Jeffrey John Wilson Stead, who is the Manager Anthropological for the Northern Land Council. In his Affidavit, Mr Stead deposed that he thought it unlikely that the Register of Sacred Sites kept by the Aboriginal Areas Protection Authority (“AAPA”) would be accurate or complete for all of the sites or areas of significance within the area. He indicated that the only way that a site becomes registered is if an area has been surveyed, and this usually only occurs if some development or mining occurs in the area. He also suggested that the risk of desecration to an area or site had to be extreme and immediate before Aboriginal People will look for protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

[22] Mr Stead gave evidence before Member Stuckey-Clarke on 3 December 2000, and it was agreed that the transcript of those proceedings could be used in this inquiry. I have before me detailed contentions on the evidence given by Mr Stead.

[23] The native title party also submitted a document entitled “Exploration Activities”, which provides a useful background to exploration activities. Subsequently (4 December 2001) the author of that document, Mr Mark Frederick Foy, testified before Member Stuckey-Clarke. A transcript of those proceedings is in evidence before the Tribunal in this inquiry, and I have received detailed contentions on the evidence given.

[24] In other inquiries where the evidence of either Mr Stead or Mr Foy has been relied upon, I have found that evidence useful. I have found it useful because it has relevance to the primary evidence adduced by native title holders or persons who contend that they have a right to speak for the land or waters at issue. However, expert evidence can never be a substitute for primary evidence. The native title party has produced to this inquiry an impressive array of legal and technical arguments to support its case. Yet this impressive array of legal and technical contentions is superimposed on an inadequate base of primary evidence.

[25] Even if one accepts, for example, that the Register of Sacred Sites is inadequate, the Tribunal would need to have some material before it as to the existence of areas or sites on the proposed tenement. There is no onus or burden of proof in these proceedings, but the best evidence of the existence of sites must come from those traditional owners who assert their existence. It is not appropriate for the native title party to assert in the abstract, the possible existence of sites, and then attempt to bolster this proposition by contending that the Register is deficient, without providing details of deficiencies so far as they relate to the proposed tenement or generally, such that the Tribunal could discern a pattern.

[26] A not totally dissimilar situation to that before the Tribunal arose in Violet Drury/Western Australia/Giralia Resources N.L. WO00/93, 18 May 2001 before Deputy President Franklyn. After considering the Affidavits of two anthropologists and a geologist in the employ of the relevant representative body, Deputy President Franklyn said (at [9]):

“I accept that each of them, Mr Hill, Mr Robinson and Mr Davies are experienced, capable and have expertise within their respective fields. I do not dispute the evidence of Mr Hill and Mr Robinson that the Register of Aboriginal Sites under the Aboriginal Heritage Act 1972 does not necessarily record all Aboriginal sites of significance within any particular area. That is clear from the terms of that Act. It does not follow, however, that within any specific area there is, or is likely to be, in fact, a site or area of ‘particular significance’ within the meaning of section 237(b). For a site or area to be significant it must be significant to someone and for it to have a relevant ‘particular significance’ ie. a special or out of the ordinary significance, that special or out of the ordinary significance must be known to the holders of native title and be in accordance with their traditions.

The apparent inability of the Native Title Party to provide the relevant particulars as directed, is strong evidence that the Native Title Party are unaware of any site of relevant significance on the proposed tenement. The question posed by section 237(b) is whether an area or site of particular significance is likely (or more properly ‘is not likely’) to be interfered with by the exercise of the rights conferred by a mining tenement. That question cannot be answered by an assertion that, within or in the vicinity of a proposed tenement where there are no known areas or sites of relevant particular significance, some might exist.  Unless there is evidence of the existence of a relevant site there is no call for an inquiry under section 237(b). The relevant question under section 237(c) is whether the exercise of rights conferred by the proposed tenement is likely to involve major disturbance from the viewpoint of the community generally, taking into account the concerns of the Aboriginal community. (Dann v Western Australia (1997) 74 FCR 391).  It is not to be answered by the expert opinion of a geologist, no matter how well qualified in his field, as to what disturbance may result, but by the circumstances and evidence adduced.”

Legal Principles

[27] I adopt, for the purposes of this inquiry, the legal principles set out by me at 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.

[28] 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

[29] There is uncontested evidence before the Tribunal that there are no Aboriginal communities situated on the proposed tenement.

[30] There is very little evidence of any community or social activities of the native title party. Bessie Coleman deposes that she  (and presumably others) goes fishing along Evelyn Creek, as well as a place on the Mary River called “Blue Hole” (para 4). She also informed the Tribunal that she goes to Wandie Creek both for fishing and hunting turtles (para 8). Finally she deposes that she and others go onto the country to catch porcupine and kangaroo.

[31] There is some doubt whether all or any of the named fishing locations are on the proposed tenement.  However, even if one assumes that they are (which is doubtful) and one also accepts that there is hunting of kangaroo and porcupine, there is no evidence of:

(a)the identity of persons, other than Bessie Coleman, who engage in this activity;

(b)whether those other persons are members of the native title claim group or other holders of native title;

(c)the frequency of this activity;

(d)the duration of the activity;

(e)the location of the hunting on the proposed tenement.

No assistance is obtained from the findings of the Aboriginal Land Commissioner with respect to the right to forage.  While the Tribunal accepts His Honour’s finding that the Jawoyn People have a traditional right to forage over their traditional country, there is no finding by His Honour with respect to foraging on the area of the proposed tenement. Indeed His Honour points out (at p.36) that the “evidence related largely to the southern part of the claim area”. The southern part of the claim before His Honour related to country in the vicinity of Katherine.

[32] Further, even if better particulars were provided, the native title party would have been confronted with the situation whereby this area of land and waters has been subject to extensive exploration activity for many years. In those circumstances, no specific evidence was adduced that this activity has previously had a deleterious affect on hunting and fishing in the area of the proposed tenement. Certainly, Bessie Coleman refers to mining activity resulting in cyanide or dirty water getting into the rivers and killing off fish and animals, but as the government party contended (GPCR at para 39): “whilst Mrs Coleman may find an expression of her speculative fears, the grantee, acting lawfully and within the conditional restraints of the licence, cannot pollute the creeks.” In addition, there is no evidence that any of the exploration activity carried out on the proposed tenement has resulted in pollution of watercourses or the killing of bush animals or tucker. Rather, the absence of such evidence and the existence of this activity, points to a conclusion that the regulatory regime in force in recent years has ensured that environmentally hazardous activity by miners has been substantially dealt with. I mention these matters, not because it is necessary on the evidence before me, but simply to highlight how far the native title party needed to go, in addition to the material before me, in addressing the issues to be dealt with pursuant to section 237(a).

[33] Basically there is almost no evidence before the Tribunal about community or social activities, and certainly there is insufficient material for me to find that there is a real chance that the grant of the proposed tenement will directly interfere with the carrying on of the community or social activities of the native title party.

Section 237(b) – Areas or sites of particular significance

[34] There is no evidence that there are any areas or sites of particular significance on the proposed tenement. Bessie Coleman says (para 2) that there are a lot of sites “from the men’s side, so I can’t know them. But them fellas ought to know.” However, the Tribunal was presented with no evidence from any male native title holder as to the existence of areas or sites of particular significance.

[35] If a site is not disclosed to the Tribunal, then obviously there is no basis for an inquiry pursuant to section 237(b). Deputy President Franklyn’s observation in Chubby Jones & Ors/Western Australia/Taipan Resources NL WO99/621-622 1 November 2000 is relevant in this regard          (p 9): “No question can arise as to the likelihood or otherwise of interference of such a site unless there is evidence of its existence.”

[36] The Tribunal has referred to four recorded sites outside of the proposed tenement but within a reasonable distance from it. Again there is no evidence that those sites are of particular significance to native title holders, let alone that there is a likelihood of interference with them.

[37] Consequently, there is no evidence before the Tribunal that there is a likelihood of interference with any areas or sites of particular significance to native title holders.

Section 237(c) – Major disturbance to land or waters

[38] The evidence before the inquiry discloses that the proposed tenement has been the subject of very intensive exploration activity for some time. The evidence also illustrates that exploration activity has occurred over almost the entire area of the proposed tenement.

[39] Whilst I will assume, in the absence of any evidence of intention, that the grantee party will exercise their legal rights to the maximum, the Tribunal also has before it detailed evidence from the government party on the regulatory regime in force governing the exercise of rights under an exploration licence and for the rehabilitation of sites.

[40] There is no evidence that previous exploration activity on the proposed tenement has resulted in a major disturbance to land or waters. Certainly Bessie Coleman refers to her experiences in the 1950s and 1960s when she worked at the Mary River Mine. She drew the Tribunal’s attention to the leaving of rubbish and to pollution of watercourses. However, in assessing the likelihood of major disturbance, it must be borne in mind that this is an exploration licence.  Mining operations are totally distinct, and prior to mining activity proper taking place a separate future act process is required. A right to explore does not inexorably lead to a right to mine.  Moreover, the activities discussed relate to mining practices a number of decades ago.  There is no evidence before the Tribunal that the unfortunate and environmentally unsound practices of four or five decades ago are still being practised.

[41] In addition, Bessie Coleman refers (at para 6) to her concern about “them men camping out there and drilling everywhere … I don’t like seeing that flagging and red tape everywhere. If I see it I won’t go fishing.”  Later she says (at para 7): “Drilling disturbs those hunting areas and changes the country. It will change the way we hunt on country.”  These statements are made in connection with country where this very activity has been occurring for decades. If in fact Bessie Coleman has been using the area of the proposed tenement for hunting and other purposes in the way she described, then either exploration activities have not interfered with her traditional activities or she has overstated the degree of interference. 

[42] The Tribunal also has taken into account the absence of any Aboriginal communities on the area of the proposed tenement or in the immediate vicinity and the fact that it is situated on a pastoral lease with concurrent lawful rights being exercised by the grantee of the lease. This is not land or waters on which the only disturbance will flow from exploration activities. It is land which is subject to lawful activities by pastoralists on an ongoing basis.

[43] The Tribunal has also had regard to the fact the proposed tenement is situated in close proximity to numerous granted mining tenements. The government party supplied the Tribunal with a map showing the numerous Mineral Lease Northern and Mineral Claim Northern tenements that are located within a 10 km radius of the northern, eastern and southern boundaries of the proposed tenement. In evaluating the risk of major disturbance from the grantee party exercising their rights under an exploration licence, regard can be had to the ongoing disturbance resulting from the activities of lessees of numerous mining tenements in the immediate vicinity. It could be argued that the grant of this tenement would compound the level of disturbance. The obvious response would be that the likelihood of major disturbance from exploration activity in this context would be very low having regard to the overall environment of the area.

[44] The Tribunal has before it considerable evidence from the government party on the legal regime in force governing the exercise of rights under an exploration licence in the Northern Territory.  Although this extensive evidence has not been set out in this determination, it has been taken into account.

[45] 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 10418 to Grant Robert Archer, Demetrios Jim Kastrissios and David John Langley is an act which attracts the expedited procedure under the Native Title Act 1993.

John Sosso

Member