Mr Roy Dixon on behalf of the Waanyi Jambarana and Waanyi Liliriji/Ashton Mining Limited/Northern Territory
[2002] NNTTA 88
•14 May 2002
NATIONAL NATIVE TITLE TRIBUNAL
Mr Roy Dixon on behalf of the Waanyi Jambarana and Waanyi Liliriji/Ashton Mining Limited/Northern Territory, [2002] NNTTA 88 (14 May 2002)
APPLICATION NO: DO01/11
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
Mr Roy Dixon on behalf of the Waanyi Jambarana and Waanyi Liliriji (Native Title Party)
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Ashton Mining Limited (Grantee Party)
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Northern Territory of Australia (Government Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: J. E. Stuckey-Clarke, Member
Place: Sydney
Date: 14 May 2002
Hearing dates: 11 July 2001; 10 October 2001; 25 October 2001; 30 October 2001; 9 November 2001; 3 December 2001; 4 December 2001; 18 January 2002; 28 February 2002; 5 March 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 Jeff Wilkie
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – grantee party’s intentions – presumption of regularity – likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation:
Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 109, 146, 151, 237
Cases:
C.N.Hardie/Western Australia/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO 00/92, Member Stuckey-Clarke 25 June 2001
William Risk and Kathleen Mary-Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso 15 April 2002
Smith v Western Australia [2001] FCA 19
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Cheinmora v Striker (1996) 142 ALR 21
Western Australia/Winnie McHenry WO 98/125, Deputy President Franklyn, 28 July 1999
Ward v Western Australia (1996) 69 FCR 208
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002
REASONS FOR DETERMINATION
Background
[1] On 13 December 2000, the Northern Territory (“the government party”) gave notice pursuant to section 29 of the Native Title Act (“the Act”) that it proposed to grant Exploration Licence 10429 (“the proposed tenement”) to Ashton Mining Limited (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 383 blocks (a block is approximately 2.9 square kilometres), within the Surprise Creek locality. The area of the proposed tenement is comprised of the following pastoral leaseholds: Perpetual Pastoral Lease (“PPL”) 1065 (known as Kiana), PPL 1169 and, PPL 1014.
.
[3] On 23 March 2001 a native title determination application was filed with the Federal Court (D6024/01). The name of the application is “Kiana Calvert” and the applicant is Mr Roy Dixon. The application was registered on 17 April 2001. The “Kiana Calvert” application covers the whole of 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 (23 March 2001) after the section 29(4) notification day(13 December 2000). Mr Roy Dixon is the named objector. The Tribunal has previously determined that Form 4 objections in Group 4 have been properly accepted and that, while a Form 4 cannot be amended in a substantive manner after the statutory 4 month time limit has expired, there is no amendment of a Form 4 by the submission to the Tribunal of such matters as are contained in the contentions of the native title party in the matters before me: see the Decision of Member Sosso on whether the Tribunal has Jurisdiction to conduct an inquiry in Applications No. DO 01/3, DO 01/13, DO 01/19-23, unreported, 21 December 2001. I agree with and follow Member Sosso’s decision in those matters. I conclude that the Tribunal has jurisdiction to determine this inquiry.
[5] On 1 October 2001 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.
[6] On 11 July 2001 Deputy President Sumner made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. I issued further directions at various listing hearings, the last of which was convened on 5 March 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determining the matter on the papers and I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section l5l of the Act.
The Evidence
Objector’s Evidence
[7] The native title party relies upon an affidavit of Mr Roy Dixon of Corroboree Hostel, Katherine, affirmed 1 October 2001 which is set out in full below:
I, ROY DIXON of Corroboree Hostel, Katherine, in the Northern Territory of Australia,
do solemnly and sincerely declare and affirm as follows:
1. I live at Corroboree Hostel in Katherine. I am here for the dialysis.
2. I am an applicant in the Kiana Calvert native title determination application
(D6024/0l), on behalf of the Waanyi Jambarana and Waanyi Liliriji Peoples. The
area of the application includes the area of ELA 10429. I have seen a map of the area
of the ELA. Now produced and shown to me marked "RD-10429" is a map of the ELA and the surrounding area.
3. North of the western part of the ELA, there is a place, Wurundula, on the Robinson
River, Dingo Dreaming. On a creek further south is Wallabunga. Wurundula is at
the junction of Wallabunga Crocodile Dreaming and Plains Goanna. They fought at
that Ngudidji. The goanna said "you stay here; you are too heavy to go up to the top
country". He cut up the crocodile really rough. There are two big stones there. It is a
special place. The mining company can go there.
4. Ngudidji is higher up from Wurundula, about ten kilometres south. Both are in the
sandstone gorge country .Wurundula has got a flat stone. Dingo put a narrow place,
like a drain. That drain has three sinkholes in the middle of the river. The same
Dingo goes down to the sea at Seven Emus. They sing the Dingo song when they
dance for young men. The mining company can walk around and have a look. If
they damage it- drill or gelignite -there will be more dingoes. No one can finish
.them. They might eat everybody.
5. Up Sandy Creek, Wulwalina, is Messmate Yard. There is a place for the rainbow
serpent, called Miyarina, the same creek before it gets to the junction. The Rainbow
goes down half way along Miyarina to Horse Pocket. He finishes there on Robinson
River Land Trust. The Rainbow is for Mambaliya people. The Dingo is Wuyaliya;
that's its skin name. The crocodile is Wurdaliya; that's halfway up Robinson River
Land Trust.
6. Up one creek from the Robinson River is Grey Horse Pocket, Langawuna, on the
west side of Blackfella Spring. That's the name of that river at that place. It runs
down to the Robinson River a bit further down from Wurundula into the Robinson
River Land Trust. There is one big hill; he's a Star Dreaming. We call it Bulaytba,
.up in the lancewood, up in the desert. It is on the Calvert side of the Robinson River,
five kilometres upstream from Langawuna. Bulaytba is near the boundary of ELA
10430, and near the Kiana-Clavert boundary .There is no fence between Kiana and
Calvert. It is rough sandstone country. No cattle live there. There is no mustering
there. No motor cars go there, it is too rough.
7. You can't go there because it is Star. Only the Junggayi can go and take the owner
for that place. I am Junggayi for that country. That Star is called Wugurdu. He is
Rrumbarriya. He goes from Walabunga to Bulaytba.
8. If a European goes and damages that place, Bulaytba, he'll get killed. The spirit will
take their life away. Nobody goes there. If they want to go and have a look, the
Junggayi should take them there. They can go and have a look without the Junggayi,
but if they want to do anything there, any damage -cut rock, dig hole -Junggayi
must go with them. If they damage anything, they might feel sick. They'll get sick
and die. Only the song Aboriginal people sing can fix them up. No doctor will help.
That's Wugurdu; that spirit living there.
9. Wugurdu is Rrumbarriya. It comes from the west towards Blackfella Spring and
Crocodile Spring and Valley Yard. Calvert is Rrumbarriya country. Wugurdu is
dangerous at Grey Horse Pocket, but he's all right at Blackfella Spring.
10. Wugurdu, Saltwater Crocodile Dreaming, is at Mango Spring, Wallabunga, on the
Robinson River. George Carter had mangoes there. It's between Kiana and
Benmara. The country is no good. Bulaytba owns Wallabunga. Nobody goes there;
there is no road. You can come in from Benmara way; it is all desert.
11. North of the eastern part of the ELA area and outside the area, Packsaddle Creek runs west from Packsaddle Yard. There is Star Dreaming, Barri Barri, right on the creek.
It is my Dreaming, my father's father's Dreaming. It runs from Packsaddle to
Surprise Creek - all along the top end of Surprise. That one means you can get lost
easily.
12. He's a dangerous one; Barri Barri don't like damage to country. They kill people.
Sometimes they are dangerous and sometimes not. It is all right if the company drills,
but they'll come out and have a look. Sometimes they don't like strangers. It is safe
if the Junggayi is there. I am the owner for Barri Barri. I am safe if my Junggayi is there. It'll be safe if the Junggayi goes with the mining company. The Junggayi has
got to have the song; he'll sing it, and stop the Barri Barri moving around.
13. About five years ago, they got a sample just up from Warridilina, a rock hole right on
the creek on Calvert Hills. I went with them to take a sample. They left the chopper
right at the rock hole. I told them they were all right to take a sample at that rock
hole, as long as they didn't put gelignite there.
14. Bidirda is a name for a place with a White Dingo, a Yellow Goanna, and a Star
Dreaming. It is all the country between Surprise Creek and Packsaddle Creek, and
right on to Robinson River. Another place is Eagle Yard, at the junction of Bluey
Creek with Cattle Creek. Bidirda is west of that and to Robinson River station. It
goes on the west side of Eagle Yard. The south east side of Bluey Creek is all right;
on the north west, you've got to be bit careful for that Star .
15. Blackfella Spring is Gajalina. It is a Rainbow Serpent site. It is in Rrumbarriya
country .That Barri Barri doesn't go as far as Blackfella Spring. There is nothing
much there; the company can go and work there. That Barri Barri is Wuyaliya skin.
16. You can go down that country. They are mustering that country this year. My son
has been doing that. The Calvert manager told them there were Robinson River cattle
on Calvert. They have got to take the Junggayi. They have taken William Davey.
He is the main Junggayi. Women and kids have not gone mustering. Barri Barri will
make them sick and take the kids away. A woman can't go by herself; she will get
lost straight away. The Barri Barri changes the country and makes it look different.
17. My son will go fishing there while he is mustering. The Barri Barri knows them well
from a kid. People go fishing and hunting on Calvert. They go up Surprise Creek
from Yangulinyina, and from Robinson. They go fishing on Bluey Creek right up to
Packsaddle, right up to Eagle Yard. When they go ringing on Calvert, they go fishing then. They will still go if the mining company is there. They go when they feel like
it, dry time. There is only a bush track, with sand ridges and some.
18. People from Robinson and Doomadgee are working Calvert. They go hunting and
fishing at Valley Yard and Crocodile Yard. They mostly don't go hunting and fishing
at Shepherd Yard now; there is not much river.
19. People living at Kiana and Benmara get fish from Ganjarinjarri, freshwater crocodile,
top end of the Robinson River, north of the western part of the ELA. They come up
for the weekend from Kiana by motor car; it is a couple of hour's drive. The wet last
year made the road rough. They bring back turtle; they eat all the bream up. That is
the main fishing place for those people. It is called Mountain Home, Ganjarinjarri;
George Carter, the old manager at Kiana, had a place there. They go hunting for
goanna, and get sugarbag. They take a gun for the kangaroo.
20. Kiana is my mother's father's country. I will show it to the mining company.
21. Ngulwi is Rain Dreaming. It is up in the desert country , Robinson River on top,
higher up from Ganjarinjarri, further south. He can't dry .Outside, the company can
drill and look. He can't do that in that water hole, because it'll be rain, can't stop.
The company can't come 30 metres from the water hole. If you chuck rock down the
rock hole, you 'll see a rain cloud coming, twenty minutes. They can drink the water
there.
22. I show people around my country. For Rrumbarriya country, down the Robinson, I
am Junggayi. I don't want to see anything damaged. If the owner or anybody else
damages the place, I've got to charge him.
[8] The native title party submitted the following further evidentiary material to the Tribunal:
(a)Extracts from the Garawa/Mugularrangu (Robinson River) Land Claim Report dated 14 March 1990 (“the Land Claim Report”), of the Commissioner appointed under the Aboriginal Land Rights(Northern Territory) Act 1976(Cth) (“the Land Rights Act”), being pages 32 and 35.
(b)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001; and
(c)The affidavit of Mark Frederick Foy affirmed 24 October 2001;
(d)Information and map provided by the Aboriginal Areas Protection Authority in relation to Aboriginal Sacred Sites within the area of the proposed tenement (‘the AAPA sites information”).
The Government Party’s Evidence
[9] The government submitted its Standard Exhibits as well as the following evidentiary material to the Tribunal:
(a)A topographical map marked with the area of the proposed tenement , location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”), tenure details and any known Aboriginal communities;
(b)A schedule of details of the sacred sites referred to;
(c)Mining Tenement documents, including the licence application and details of any current mining tenement and prior mining tenements granted over the same area;
(d)A Revised Prior Tenement Schedule, prior exploration licence map, previous exploration activity map and schedule and existing title holder map and schedule.
(e)Affidavit of Timothy Milne Gosling sworn 5 December 2001;
(f)Affidavit of Hugh Joseph Bland sworn 29 November 2001.
The Grantee Party’s Evidence
The grantee party relied upon the following matters evidenced before the Tribunal:
(a)Statement of Contentions dated 8 and 16 October 2001 which were signed by Mike Fitzpatrick, Superintendent for Tenements of the grantee in which he deposed to the intentions of the grantee in relation to its activities on the proposed tenement: In the Contentions dated 9 October, 2001, the grantee said:
“ Rio Tinto Exploration Pty Ltd’s Contentions:
…Exploration can include a range of activities some of which are conducted upon the ground. These activities include:
. Office geological studies and data reviews
. Light vehicle or helicopter reconnaissance
. Rock chip, gravel or loam sampling by hand or auger
. Aerial surveys
.Geophysical surveys
.RAB,RC and Diamond drilling
The potential impact on the land can range from minimal, such as light vehicle reconnaissance, through to the drilling of sub surface targets. Exploration is an iterative process that each stage relies upon the results from previous work.
Rio Tinto’s intention is to initially conduct a regional diamond sampling program. This involves collection by hand of drainage samples from creek and river systems and analysis of these samples in a laboratory.
Depending upon the results of this initial work follow up gravel sampling would be carried out and if further positive diamond indictors were found a geophysical survey would be proposed. If any identifiable features were considered prospective drilling of these features would be considered….
Community Life-Section 237(a)
Section 237(a) provides that the act will not be a future act if in the exercise of the rights it is likely to interfere directly with community or social activities.
The activities planned by Rio Tinto have the following characteristics:
.are confined to well spaced sampling and prospecting activities including aerial surveys,
.are limited to the area of the Exploration Licence boundaries;
.are limited to the dry season and are periodic and short term;
.governed by strict legislative compliance, prior approval ,and
.conducted under strict environmental guidelines.
Rio Tinto undertakes appropriate meetings with the local community and traditional owners to discuss planned activities and to clear proposed work areas…..
The Grantee is a professional exploration company with experience in dealing with community and indigenous issues and will ensure that, in addition to conducting its activities in accordance with all relevant legislation, there is extensive prior, and on going consultation with all stakeholders including the native title parties.”
In its Contentions dated 16 October 2001, the grantee party contended:
“…Ashton relies on the affidavit of Jeffrey Alexander Wilkie dated 17 October 2001.Ashton’s evidence is that the exploration licence application complied in all respects with Mining Act and, if the exploration licence is granted, Ashton will comply in all respects with its obligations under :
(a)Northern Territory and Commonwealth legislation (including the Mining Act, the Northern Territory Aboriginal Sacred Sites Act 1989(NT), the Aboriginal Land Rights (Northern Territory) Act 1976(Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984(Cth) and the Native Title Act 1993(Cth);
(b)The conditions of the exploration licence itself;
(c)Rio’s(sic) Community Relations and Environmental Policies, with the following effect:
(i)Ashton is sensitive to the interests of all Aboriginal parties affected by its exploration activities and endeavours to minimise the social and environmental impact of those activities;
(ii)Ashton will communicate in an open and honest manner with all community representatives and exercise respect and consideration when engaging with Aboriginal parties;
(iii)Prior to conducting work programs during the course of exploration, Ashton will ensure that an appropriate process of Aboriginal heritage protection is conducted, commensurate with the proposed level of impact of each program;
(iv)Ashton recognises the special connection to land and waters that Aboriginal parties may hold and acknowledges that there may be places that Aboriginal parties may wish that exploration activities be excluded for cultural reasons.”
(b) Affidavit evidence of Mr Jeffrey Alexander Wilkie sworn 17 October 2001. with Attachments JAW1, and JAW2 which provided sworn evidence of the intentions set out in the contentions.
The Parties’ Contentions
[11] The government, grantee and native title parties filed extensive contentions in the proceedings. I have considered the contentions in detail and will refer to them with particularity where appropriate.
General Legal Principles
[12] Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…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 holders… of the native title in relation to the 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.”
[13] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.
Reasoning
Section 237(a) – Interference with carrying on of community or social activities
[14] The Government party in its Statement of Contentions at [15]-[37] set out its submissions as to the proper construction of section 237(a) with which I agree. I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.
[15] The native title party in its Contentions at [39]-[41 ] contends that:
(a)There are several aboriginal communities ‘in the vicinity of” the proposed tenement which are occupied by members of the native title claim group. They include, Kiana Homestead [Affidavit of Roy Dixon [19]]; Benemara [ Affidavit of Roy Dixon [19] ]; Calvert Hills Homestead [ Affidavit of Roy Dixon[17] ]; Yangulinyina Community [ Affidavit of Roy Dixon [20]].
(b)There are several water bodies and other areas of environmental significance in and around the licence area. These are used for fishing, sources of drinking water and may sustain and be parts of areas and sites of significance. They include, Robinson River and its tributaries, together with Bluey Creek and its tributaries [map annexed to the affidavit of Roy Dixon].
(c)The community and social activities include (a) Foraging [Land Claim Report [5.6] ]; (b) Hunting, fishing, gathering of bush tucker [Affidavit of Roy Dixon[17] – [19]]; (c) the community of native title holders actively look after country, by visiting and maintaining sites [Affidavit of Roy Dixon[22] and Land Claim Report [6.21]]. This activity is conducted by individuals with specific responsibility for that area. It is also contended that these activities occur over some or all of the licence area, and in its vicinity.
[16] The government party in its contentions in reply at [13]-[21] said:
“13. The locations mentioned in Paragraph 39 are outside the proposed licence area.
14. There is an issue of relevance and also of particularity with Paragraph 42 and 43. If the Objectors are asking the Tribunal to conclude that the potential use of the roads and tracks(both public and private) by the grantee is an interference directly with the carrying on of the claimed activities, it is an insubstantial impact, bordering on the trivial. Trivial impacts are not within the scope of s.237(per French J. in Derrick Smith at [26]).
15. Any number of other users, Aboriginal and non-Aboriginal, utilize these roads and tracks and any of them could potentially cut up unsealed tracks, cause the dust or noise alleged or cause a member of the native title group to re-consider whether to discharge a firearm. Many other relevant rights-holders have legitimate rights and interests and can pursue their lawful activities in relation to the land….Mr Dixon relevantly states…:”[t]he [W]et last year made the road rough”(at paragraph 19..) without any reference to that road being used by the Grantee. As French J. stated in Derrick Smith:
“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 on the proposed future act is insubstantial.”….
17. As to Paragraph 41, the lack of particularity makes it impossible for the Tribunal to attribute any evidentiary weight to the assertions. The specific locations at which the fishing, hunting and foraging 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 article sought, the number of persons engaged in these activities; all are unstated.
18. As to the frequency of these activities, Mr Dixon says that others engage in fishing and hunting and foraging yet does not state the frequency of these excursions, rather he says,
“When they go ringing on Calvert, they go fishing then. They will still if the mining company is there. They go when they feel like it.[D]ry[T]ime.”(at paragraph 17)
.
At paragraph 19 there is mention that “they come up for the weekend from Kiana by motor car” without any implication that such an excursion occurs every weekend.
19. As to Paragraphs 42-47 of the Objector’s Contentions, the apprehended interference must be direct, meaning that the act must be the proximate cause of that apprehended interference,(per French J in Derrick Smith at [26])….Moreover, this impact must be substantial. The affidavit material of the Objector simply does not establish the how, when, where and why a substantial impact on the carrying on of any of the claimed community or social activities is likely to occur…”
[17] In my view, what the native title party asserts in these contentions is not supported by the evidence before me. There is no evidence before me of any community or social activities actually conducted at the present time on the proposed tenement which would be directly interfered with by the proposed grant in a substantial and not merely trivial way. I accept the contentions of the government party in coming to this conclusion. It is apparent from analysis of Mr Dixon’s affidavit in light of the maps provided to the Tribunal that the evidence of such activities such as it is does not in the main refer to activities on the proposed tenement and the evidence in any case is of fairly infrequent and insubstantial activity. It is the fact that there is no Aboriginal community on the proposed tenement and the only aboriginal community “in the vicinity of” the proposed tenement, in the sense that it is clearly identified to me according to the maps provide to the Tribunal by both the government and native title parties is Calvert Hills which appears to be more than 10 kilometres away from the boundary of the proposed tenement. Further, from the maps provided to the Tribunal it is difficult to identify any place mentioned in [16-19] of Mr Dixon’s affidavit as being on the proposed tenement. Of the places referred to by Mr Dixon in [17], Surprise Creek does not appear to be on the tenement nor does Cattle Creek and the conjunction of Bluey Creek and Packsaddle Creek is well off the tenement. Eagle Yard is not identified on any map as being located on the tenement. Calvert Creek does not appear to extend to the tenement. Valley Yard and Crocodile Yard are not on the tenement but marked to the east of the eastern boundary. Shepherd Yard is on the proposed tenement but Mr Dixon deposes at [18] that “They mostly don’t go hunting and fishing at Shepherd Yard now; there is not much river.” Finally, Ganjarinjarri referred to in [19] is identified as being “north of the western part of the ELA”, and therefore not on the proposed tenement.
[18] The native title party also relies upon the Land Claim Report extracts as evidence of foraging activities. The evidential value of the extracts referred to is not substantial in as much as the licence area is not within the area that was subject to the Land Claim. However the findings were made in 1990 and are not merely of historical value. Accepting therefore that the Land Claim findings are relevant to the present issue, the findings only confirm responsibilities and entitlement to forage in respect of that land. What section 237(a) requires is evidence on the basis of which the Tribunal can conclude that at the present time the objectors actually conduct such activities on the proposed tenement. The findings of the Land Claim Report taken at their highest cannot provide such a basis in circumstances where there is insufficient primary evidence of relevant activities being conducted currently on the tenement by the objectors: see William Risk and Kathleen Mary Mill-McGinness/Corporate Developments Ltd/Northern Territory DO01/77, unreported, Member Sosso, 15 April 2002 at [35]-[38].
[19] The facts relating to the social and community activities likely to be interfered with by the grant of the tenement were peculiarly within the knowledge of the native title party and the existence of such evidence was in fact contended for in its submissions. However, the native title party has failed to produce evidence of those contentions and although there is no evidential onus to be applied, taking the commonsense approach to evidence and applying the test of direct interference explained by French J in Smith v Western Australia[2001]FCA 19 I find that it is not likely that the proposed grant will interfere directly with community and social activities of the native title parties.
Section 237(b) – Sites of particular significance.
[20] In Moses Silver at [86]-[107], Member Sosso analysed legal issues raised by the contentions of the government and native title parties in respect of the general legal principles applicable to and the proper construction of section 237(b) which were also raised in similar contentions in this matter. I agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.
[21] So far as section 237(b) is concerned, the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the areas or sites must be “capable of identification” and the nature of their significance to the holders of native title must be explained to the Tribunal: see Western Australia/Winnie McHenry WO 98/125, 28 July 1999. It will usually be the case that evidence relating to particular significance will be peculiarly within the knowledge of the native title party and that, absent documentary evidence, such as the Sacred Sites records, evidence of location and identification will also be peculiarly within the knowledge of the native title party so that failure to produce such evidence may lead to the drawing of an unfavourable inference on the issue taking the common sense approach to evidence: see Carr J. in Ward v. Western Australia(1996) 69 FCR 208 at [217].
[22] The evidence as to such sites produced by the native title party and relied upon its contentions on [6.2.10] of the Land Claim Report in particular. In this paragraph, the Commissioner said:
“By reason of the very obviously strong attachment of Roy Dixon to the land and his commitment to perpetuate the traditional attachment to it by members of his patriline, I infer that all of his children..share a common affiliation with him to sites on the land. .”
[23] The native title party also relies upon the AAPA sites information and map which indicates that on the proposed tenement there are three recorded sites notated 6363-23, 6263-5 and 6263-6. There are several sites identified outside of the application area. Site 6363-23 is located at Blackfella Spring which is referred to in [15] of Mr Dixon’s affidavit. Mr Dixon says of that site at [15]:
“Blackfella Spring is Gajalina. It is Rainbow Serpent site. It is in Rrumbarriya country. That Barri Barri doesn’t go as far as Blackfella Spring. There is nothing much there; the company can go and work there.”
I find therefore that Blackfella Spring is not a site of particular significance to the native title holders within the meaning of the section.
The other two sites are identified as Ngulwi and Nguringyi, being both waterholes on the Robinson River. Ngulwi is described as a Rain Dreaming site by Mr Dixon at [21] of his affidavit and the government party accepted at [22] of its contentions in reply that this site was sufficiently particularised within the meaning of s.237(b)and I so find.
Ganjarinjarri referred to at [19] by Mr Dixon is recorded site 6263-7 which is not on the proposed tenement. Of the various sites referred to in [6-7]of Mr Dixon’s affidavit, Bulaytba is located according to the maps before me, including the map annexed to Mr Dixon’s affidavit to the north of the boundary of ELA 10430 and the tenement and not on the boundary as Mr Dixon says at [6].
[24] The native title party also relies upon the affidavit of Jeffrey Stead who deposes to his belief that it is unlikely that the AAPA Register for any particular area will be accurate and complete for all sites of areas of significance within it. Mr Stead also gave oral evidence at the hearing on 3 December 2001. I refer to my analysis of Mr Stead’s evidence in Roy Dixon/Plenty River Corp. Ltd/Northern Territory, DO 01/51 at [24-25] and note that Mr Stead advised the Tribunal that he was not aware of any inaccuracies in the geographical description of any sites referred to in the AAPA sites information and map provided to the Tribunal and relied upon by the native title party in these proceedings.
[25] In its Contentions at [44]-[46], the government party contends “that the grant is not likely to interfere with any areas or sites of particular significance….for the following reasons:
“(b) any such sites have the statutory protections offered by the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”). This Act applies to all of the land in the Northern Territory and provides protection for sacred sites as defined in s.3 of the Aboriginal Land Rights Act (Northern Territory) Act 1976(Commonwealth)(“the Land Rights Act”). “Sacred Site” is defined in the Land Rights Act as meaning “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition”. An area or site gains the protection of the legislation whether registered or not. Although all sacred sites would not be sites of particular significance, such definition includes any area or site of particular significance in accordance with the objector’s traditions. The protections include:
(i) Section 33 of the Sacred Sites Act provides that a person (which definition includes bodies corporate) shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the Act or the Land Rights Act. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(ii) Section 34 of the Sacred Sites Act provides that a person shall not carry out work on or use a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(iii) Section 35 of the Sacred Sites Act provides that a person shall not desecrate a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(iv) Section 37 of the Sacred Sites Act provides that a person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister’s Certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(c) Section 69 of the Land Rights Act also makes it a criminal offence to enter or remain on land in the Northern Territory that is a sacred site.
(d) Section 24 of the Mining Act relevantly provides that every exploration licence shall, unless expressly waived, varied or suspended in writing by the Minister, be granted subject to the condition that the licensee will…
“(k) not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory, otherwise than in accordance with that law.”
(e) The Second Schedule of Conditions includes conditions which specifically reduce the likelihood of interference with sites of particular significance. Conditions 1(b),3,4,12,18 and 20 are referred to as particularly relevant to paragraph 237(b) issues. The compulsory inspection of the Register of Sacred Sites and the mandatory on-site meeting with any native title holders are seen as mechanisms to significantly reduce the likelihood of interference with such sites.
(f) Also the letter of grant of the proposed licence will include endorsements specifically directing the grantee party’s attention to the provisions of the Sacred Sites Act so that, combined with other endorsements and conditions, this militates against reliance on defenses that may be mounted based on an absence of knowledge to offences under the Sacred Sites or Land Rights Acts.(This is stressed in the on-going communications with the grantees.)…….
46. The contextual risk evaluation by the Tribunal need include the following factors:
the regulatory scheme which governs the exercise of the rights under the grant(including the presumption of regularity);
the statutory scheme which protects sacred sites in the Northern Territory; and
prior and current concurrent lawful activities on the same licence area.”
[26] Further, in its Contentions in Reply the government party says at [22]:
(a) Any sites alleged to be of particular significance need to be “in relation to the land and waters concerned”; (see paragraph 237(b)NTA). It is unclear whether the named sites are such from the affidavit material or the maps provided. The term “in relation to land and waters concerned “ is submitted to mean that the area or site of particular significance must be within the area the subject of the proposed licence or so close as to be directly and physically affected by exploration activities on the land.
(b) These areas or sites need to have “particular significance”, yet evidence which proves up their status of being “of special, or more than ordinary significance to the native title holders in accordance with their traditions”(per the formulation of Carr J in Cheinmora v. Striker (1996) 142 ALR 21 at 34) is lacking other than the Ngulwi site which is described as a Rain Dreaming site. However, the assertion that “all areas and sites have particular significance” (in Paragraph 56 of the Objector’s Contentions) places all sites into a single class making them seemingly incapable of having a special or more-than-ordinary significance.
(c) The terms “of particular significance,“of significance” and “sacred site” are used interchangeably and confusingly so.”
[27]In my view, whilst the evidence does disclose that there is a site of particular significance to the native title holders within the meaning of section 237(b), namely Ngulwi which is located within the proposed tenement, that is not the end of the matter. The Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective; indeed the evidence is to the contrary. Further, and importantly, the grantee party in this matter has given sworn evidence of its intention to comply with the legislative requirements in accordance with the spirit of the legislation and in a manner which respects the concerns of the native title parties.
[28] In conclusion therefore, in light of the Northern Territory statutory regime for the protection of sacred sites, and in light of the grantee party’s clearly evidenced intention to comply with that regime, I find that it is not likely that the any areas or sites of particular significance which may exist on the proposed tenement will be interfered with by the proposed grant.
Section 237(c) - Major Disturbance to land or waters
[29] As to the general legal principles applicable to the proper construction of this section, I concur in and adopt the general legal principles as set out by Member Sosso in Moses Silver at [135-140] and note the effect of the Mining Amendment Act No.44 of 2001 in repealing s.166(1)(a) of the Mining Act and inserting s.161(1A):see Deputy President Franklyn’s discussion of this legislation in Angus Riley and May Foster on behalf of the Wirntiku,Milwayijarra and Ngapa Groups, DO 01/70 and 71,unreported,17 April 2002 at [19].
[30] The government party contended at [52]-[59] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party relied on the following legislative provisions:
(a)Section 24(e) Mining Act which prohibits a grantee from carrying out any programme involving substantial disturbance without the prior approval of the Secretary of the Department of Mines and Energy;
(b)Section 23(c) Mining Act which permits a grantee only to extract or remove material for sampling and testing purposes(not productive extraction) and which is reinforced by section 24(b) which makes this a condition of grant;
(c)Section 24(e) Mining Act requires that a grantee party wishing to undertake activities involving substantial disturbance to the surface of the licence area must seek approval pursuant to the section. The grant of the tenement only permits activities associated with exploration;
(d)Section 166(a) Mining Act provides that all exploration licences are granted conditional upon the grantee causing as little disturbance as possible to the environment and complying with written directions to minimize disturbances or to make good any damage and rehabilitate the land;
(e)Section 24(e) Mining Act approvals are subject to compliance with such remedial and activity-specific conditions as are considered appropriate for the protection of the environment;
(f)Conditions 2,7,8,9,12,13,14,15,16,17,18,19 and 20 of the Second Schedule of Conditions pursuant to section 24A Mining Act.
[31] The government party further contended at [61]-[64] that:
The presumption of regularity in this context allows the Tribunal to presume that the discretion by the Secretary will be exercised responsibly within the boundaries of the discretion, including that appropriate remedial conditions will be attached:
(a) Although not defined in the Mining Act, “substantial disturbance” is interpreted, as a matter of administrative practice, to commence with any significant disturbance to the surface of the soil and includes activities such as drilling, access-track clearance and costean/bulk sampling;
(b) Section 24(e) permits effective management of potential disturbances by prohibiting such disturbance without prior written approval, requiring the grantee party to inform the Secretary in advance of the nature and extent of the disturbance activity and to disallow (if necessary) the disturbance or to effectively manage the disturbance and its rehabilitation so that no major disturbance is involved.
(c) Under section 166(2) Mining Act, the remedial conditions attached to the Secretary’s approval under s.24(e) become conditions of grant.
[32] The government party contended in conclusion at [64]:
“Taking into account:
(i)the regulatory scheme which governs the exercise of the rights under the grant;
(ii)the additional statutory checkpoint which seeks to prevent and/or remedy disturbances; and
(iii)the statutory requirement that productive mining activities need proceed through a completely independent future act process than that of exploration licences
the Tribunal will conclude that the grant of the proposed licence does not create rights whose exercise is likely to involve major disturbance to any land or waters concerned..”
[33] The native title party contended at [76] that the potential major disturbance to country included holes left from drilling, track built on country which would damage fauna and flora and promote erosion, damage to watercourses, reducing sustainable water supply and excessive dust.
[34] The native title party in its Contentions in Reply to the contentions of the government and grantee parties contended:
Section 24(e) Mining Act only deals with disturbance to surface area and not with other kinds of disturbance;
(a)The full extent of rights accorded to a grantee are found in sections 23(b)-(d);
(b)Section 23(c) may permit substantial extraction or removal amounting to major disturbance;
(c)An exploration licence permits high impact activities e.g. road construction, drilling, sampling, costeaning and camp construction;
(d)The statutory regulatory regime contemplates substantial disturbance with prior approval of the Secretary but the government party did not address how that discretion is exercised;
(e)Rehabilitation does not mean that major disturbance has not occurred or that rehabilitation may itself involve major disturbance.
(f)The presumption of regularity does not extend to enable the Tribunal to rely on some fetter on the Secretary’s discretion
(g)The Second Schedule Conditions were defective. First, they are not enforceable by the Objector. Secondly, several conditions are subject to the approval of the Minister.
(h)Condition 19’s protection is subject to Ministerial discretion and only deals with disturbances to the surface of the soil;
Condition 20’s protection depends upon Ministerial enforcement and native title holders have no right to stop exploration or otherwise prevent or rectify damage.
[35] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[36] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)
[37] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.
[38] There is also before me in this matter evidence relied on by the government party in relation to previous mining activity on the proposed tenement. The government party’s Final Contentions at Attachment E provides a revised schedule which includes a list which shows that there have been seventeen previous exploration licences granted within the same area dating continuously from 1972 to 1973, 1976 to 1977, 1980 to 2002.
However, the only ELA’s for which details are available in relation to the activities are;
EL 4470
Activity: Stream sediment/gravel sampling involved;
(1) the collection of gravel/sediment sample(40kg) from a suitable trap site within the drainage.
(2) on site screening of the sample to collect a particular size fraction; and,
(3) laboratory processing/analysis of the sample for heavy mineral content.
EL 4472
Activity: Stream sediment/gravel sampling.
EL 5774
Activity : Stream sediment/gravel sampling.
(1) the collection of gravel/sediment sample(5kg) from a suitable trap site within the drainage.
(2) on site screening of the sample to collect a particular size fraction; and,
(3) laboratory processing/analysis of the sample for heavy mineral content.
EL 6694
Activity: Stream sediment/ gravel sampling.
EL 7191
Activity: Stream sediment/gravel sampling
Diamond drilling involved:
(i) preparation of drill site;
(ii) drill to predetermined depth;
(iii) collection of core sample;
(iv) cutting of core sample to collect a particular size interval; and
(v) laboratory processing/analysis of the sample for mineral content.Rock chip sampling involved:
(i) the collection of rock chip from outcrop (1-2kg); and
(ii) laboratory analysis of the sample for mineral content.
EL 7204
Activity: Stream Sampling/ gravel sampling;
Stream sediment sampling
EL 8095
Activity: Stream sampling/ gravel sampling.
EL9493
Activity: Airbourne Electromagnetic (“EM”) survey.
[39] I accept and take into account the evidence given by the grantee party as to its proposed activities on the tenement set out in [10] above.
[40] Having concluded like Member Sosso, that the generic material before me “highlights that the Northern Territory has in a place a well advanced, integrated and pro-active legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process”, taking into account the evidence of the grantee party as to its intentions to comply with the statutory regime and as to its proposed exploration methods and respect for the environmental interests of native title holders’, and having considered the evidence of previous exploration activity, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to such land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 10429 to Ashton Mining Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
J. E. Stuckey-Clarke
Member
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