Mr Roy Dixon on behalf of the Waanyi Jambarana & Waanyi Liliriji People/Ashton Mining Pty Ltd/Northern Territory
[2002] NNTTA 152
•30 July 2002
NATIONAL NATIVE TITLE TRIBUNAL
Mr Roy Dixon on behalf of the Waanyi Jambarana & Waanyi Liliriji People/Ashton Mining Pty Ltd/Northern Territory, [2002] NNTTA 152 (30 July 2002)
APPLICATION NO: DO01/90
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 & Waanyi Liliriji People (Native Title Party)
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Ashton Mining Pty Ltd (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: 30 July 2002
Hearing dates: 5 February,2002, 19 March 2002, final directions made 16 May 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, Manager Aboriginal Relations
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 30 May 2001 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 10361 (“the proposed tenement”) to Ashton Mining Pty Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 104 blocks(340 sq km) (a block is approximately 2.9 square kilometres) within the Nicholson River locality. The area of the proposed tenement is comprised of the following pastoral leasehold: Perpetual Pastoral Lease (“PPL”) 963 (known as Benmara).
[3] On 13 March 2001 a native title determination application was filed in the Federal Court (DC01/24) (D6024/01). The name of the application is “Kiana Calvert” and the applicant is Mr Roy Dixon on behalf of the Waanyi Jambarana and Waanyi Liliriji Peoples. The application was registered on 17 April 2001. The “Kiana Calvert” application, which covers a geographical area of 2531.86 sq km, encompasses 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 (1 October 2001) after the section 29(4) notification day (30 May 2001). Mr Roy Dixon is the named objectors. 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 5 November 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 12 October 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 19 April 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determining the matter on the papers. I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section l5l of the Act and on 16 May 2002 made a direction that the matter should proceed forthwith to determination on the papers.
The Evidence
Objector’s Evidence
[7] The native title party relies upon an affidavit of Mr Roy Dixon of 4 Callistemon St, Katherine in the Northern Territory of Australia affirmed 5 March 2002 which is set out in full below:
I, Roy Dixon of 4 Callistemon St, Katherine in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
I live at Corroboree Hostel in Katherine. I am here for the dialysis.
I am the applicant in the Kiana Calvert native title determination application (DC01/24)
The area of the application includes the area of ELA 10361. I have seen a map of the area of the ELA. Now produced and shown to me marked “RD 10361” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
Jumbarana is a lake in my father’s uncle’s country, my ngobiji country. It’s all Rrumbarriya, that country. That Frill Neck Lizard is at Jumbarana; it’s Wuyaliya; a son for the Liliriji mob. Make all the young men there.
That Jumbarana: the site is five miles around. The mining mob can go outside Jumbarana, but they can’t go into it. We will make a yard round Jumbarana. The mining company can cut around that area, but he can’t go in the middle, because that’s where the Frill Lizard been have his ceremony. That ground is sacred; it’s where they dancing young man. From there they been take some down to Surprise Creek.
Liliriji is east north east of Jumbarana. Liliriji is the name for a big area of country: a swamp, and some desert. The Snake, he stopped at Liliriji. Liliriji comes into the northern part of ELA 10361. The mining company can go there. We don’t go hunting and fishing there at Liliriji. It’s too dry; you’d perish.
There is a place south of Jumbarana: Dumandja on Doris Creek(Jamarua).
I know the place at the junction of Doris Creek and the Nicholson River. I don’t know its name or its story. Old Carrara, he would’ve known that dreaming.
I show people around my country. 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)The Nicholson River (Waanyi/Garawa) Land Claim Report dated 26 July 1985 (“the Land Claim Report”), of the Commissioner appointed under the Aboriginal Land Rights(Northern Territory) Act 1976(Cth) (“the Land Rights Act”)
(b)A document entitled “Rights conferred under exploration licence”.
(c)A document entitled “Analysis of Legislation dealing with significant areas and sites”.
(d)Affidavit of Mark Frederick Foy and Annexure MFFI
(e)The Transcript of the evidence of Mark Frederick Foy given on 4 December 2001 (the Foy transcript). This transcript is relied on as a statement of expert opinion.
(f)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001. This affidavit is relied upon as a statement of expert opinion.
(g)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 and AAPA map”).
The Government Party’s Evidence
[9] The government party submitted its particulars 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)The Government advised that it also intends to rely on it’s Standard Exhibits Documentation as particularised in it’s Contentions.
The Grantee Party’s Evidence
[10] The grantee party led no evidence and advised the Tribunal on 13 March 2002 that it would rely upon the contentions of the government party.
The Parties’ Contentions
[11] The government 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] 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 [57]-[60] contends that:
[57]There are several aboriginal communities in or in the vicinity of the licence area which are occupied by members of the native title claim group. They include;
a. The area of the Waanyi/Garawa Aboriginal Land Trust
b. Benmara Community about 25 kms to the south west..
c. Calvert Hills, about 35 kilometres to the north east.
[58] There are several roads inside, and in the vicinity of the licence area that are frequently used by the members of the claim group to access the communities and areas, including the licence area, for the purpose of carrying on community and social activities.
a.An old road or track enters to south west part of the licence area and proceeds north through the centre of the area to join the Calvert Road about 18 kilometres to the north of the licence area[map annexed to the affidavit of Roy Dixon].
b.Calvert Road runs south west-north east about 4 kilometres or less from the north west corner of the licence area at its closest point[map annexed to the affidavit of Roy Dixon].
[59]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 part of areas and sites of significance. They include,
a. Snake Creek;
b. Coanjula Creek;
c. The Nicholson River, which is formed by the confluence of Snake and Coanjula Creeks;
d. Jumbarana clay pan; and
e. Liliriji.
[60]The community and social activities of the Native Title Claim group include:
(a) Foraging [Land Claim Report [207- [209][212].
(b) The community of native title holders actively look after country, by visiting and maintaining sites[affidavit of Roy Dixon [9]].
These activities occur regularly and are carried on by more than isolated numbers of members of the native title claim group:
[16] The government party in its contentions in reply at [6] and [52]-[53] said:
[6](b) the correlation between the traditional owners as identified in the Nicholson River(Waanyi/Garawa)Land Claim Report(1985) and this native title claim group is unknown and, even in the event that a direct correlation was established, the Reports are of little, if any relevance to the issues before the Tribunal Any evidence of activities over 15 years ago in this Land Claim Report could be said to be dated.
[52]Benmara and Calvert Hills are contended in Paragraph [57] of the Objector’s Contentions as relevant communities but it is uncertain if any are, wholly or partially, a community of relevant native title claimants, the number of residents, whether they are seasonally or permanently occupied. Additionally they are in excess of 25 kms distant from the proposed EL area. Mr Dixon, the deponent in this matter, resides at neither but in Katherine.
[53] The Waanyi/Garawa Aboriginal Land Trust is an area of land, not a community.
[17] The evidence before me discloses that there are no aboriginal communities actually located on the proposed tenement but that there are two communities located in the vicinity of the tenement, namely Benmara Community and Calvert Hills Community situated between 25-35 kilometres from the tenement. The Government contends at [53] that the Waanyi/Garawa Aboriginal Land Trust is an area of land available for the carrying on of community or social activities by those communities but not itself a community and I accept that contention.
[18] Further, I note that Mr Dixon does not live on or near the tenement However, he deposed to the carrying out of ceremonial activities on the tenement at [4-5] of his affidavit:
4. Jumbarana is a lake in my father’s uncle’s country, my ngobiji country. It’s all Rrumbarriya, that country. That Frill Neck Lizard is at Jumbarana; it’s Wuyaliya; a son for the Liliriji mob. Make all the young men there.
5. That Jumbarana: the site is five miles around. The mining mob can go outside Jumbarana, but they can’t go into it. We will make a yard round Jumbarana. The mining company can cut around that area, but he can’t go in the middle, because that’s where the Frill Lizard been have his ceremony. That ground is sacred; It’s where they dancing young man. From there they been take some down to Surprise Creek.
This is the only direct evidence of contemporary community or social activities on the proposed tenement. It should be noted that there is no evidence as to the frequency of these ceremonial activities or evidence as to when such ceremonial activities last took place. Nor is there any similar evidence of frequency or recent occurrence in relation to the relatively vague assertion in [9] that “I show people around my country” which is found in every affidavit of Mr Dixon. The Land Claim Report at [116-9] is also relied upon by the native title party but it is a Report that is 18 years old, so that even assuming that there is a direct correlation between the traditional owners identified in it and the native title claim group, at its highest the Land Claim Report is only evidence of activities being carried out on the tenement at that time in the past.
[19] I note also that the government party has led evidence of previous exploration activity with ten exploration licences having been granted over the area in the past, between 1972-l998 but no details of any activity actually undertaken pursuant to those licences has been provided.
[20] The statutory regime operating in the Northern Territory is a comprehensive one aimed at preventing interference with community or social activities of native title holders by explorers. Exploration licences are granted in the Northern Territory subject to statutory conditions made pursuant to section 24 A Mining Act. Pertinently the first two conditions are:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular, by ameliorating:
(a)any interference directly with the carrying on of community or social activities of registered native title claimants or holders;
(b)any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out its activities in such a way as to minimise the disturbance or the environment of the licence area, in particular by minimising:
(a) interference with the use of the land by other persons;
(b) the disturbance of flora, fauna or other natural resources;
(c) pollution, including soil, water and atmospheric pollution;
(d) the incidence and effects of soil erosion.”
[21] There are a further 17 conditions aimed at prohibiting a range of activities which might directly interfere with community or social activities of native title holders. In particular, Cl. 18 requires the licensee to convene a meeting with registered native title holders prior to the commencement of exploration activities and have regard to any aspect of the proposed exploration activities which raise concerns. As Member Sosso said in Kathleen Parry, Albert Myoung, Paddy Huddleston and Marjorie Foster/Northern Territory/Troy Resources NL DO 01/85, unreported, 12 June 2002, at [43] referring to the s.24A Mining Act conditions:
“These are not the only relevant provisions in force in the Northern Territory, but they highlight the fact that there is in place a regime aimed at preventing (as far as practicable) disturbance to community or social activities by explorers. Obviously the existence of this regime does not render a section 237(a) inquiry unnecessary, and it is always possible on the basis of the evidence presented to an inquiry that the Tribunal may find that there is a likelihood of interference pursuant to s.237(a). Nevertheless, it is clear that the combination of the various statutory provisions and conditions in the Northern Territory goes quite some way in ensuring that exploration activity will, in many instances, not result or not be likely to result, in interference to community or social activities.”
[22] In conclusion, therefore, even where community and social activities are evidenced as being presently conducted by the native title claim group on the proposed tenement, it is necessary for the native title party to show that the statutory regime will not prove a sufficient protection from direct interference. In considering the evidence before me, namely evidence of certain ceremonial activities the most recent occurrence and frequency of which is not specified, I am obliged to take into account the presumption of regularity in favour of the grantee and the comprehensive protections provided by the statutory regime in place in the Northern Territory. In those circumstances, I conclude that the community or social activities evidenced before me are not likely to be directly interfered with by the grant of the proposed tenement, taking the common sense approach to the evidence and applying the test explained by French J. in Smith v. Western Australia[2001]FCA 19 and therefore hold that no direct interference within the meaning of s.237(a) of the Act is likely.
Section 237(b) – Sites of particular significance.
[23] 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.
[24] 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].
[25] The native title party relies upon Mr Dixon’s affidavit and the map annexed thereto. I note that of the various areas referred to in his affidavit only Jumbarana (see [4-5]) has been marked on the map as being actually located on the proposed tenement.
[26] The native title party also relies upon the AAPA sites information and map which indicates that there is a corresponding recorded site notated as 6362-9 named Djambarana which is located on the proposed tenement. Another site named Dumandja 6262-7 is not located on the tenement although it is referred to by Mr Dixon in [7]. None of the other identified sites are located on the proposed tenement.
[27] At [69-70] of the Objectors’ contentions several sites of particular significance are set out and their particular significance discussed.
[28] 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.
[29] In its Contentions in Reply at [64], the government party contends
64. The Second Schedule of Conditions (particularized in our Contentions)includes conditions that specifically reduce the likelihood of interference with any sites of particular significance. The Tribunal is referred to Conditions 1(b), 3,4,12,18(a) and 20 as especially relevant to paragraph 237(b) NTA issues. The compulsory inspection of the Register of Sacred Sites ( as required by Condition 4) and the mandatory on-site consultation with any registered native title claimants (as required by Condition 18) are seen as mechanisms to significantly reduce the likelihood of interference with any such sites.
[30] In this matter, the Tribunal has been presented with contentions by the native title party that there are a range of sites of particular significance within the meaning of s.237(b) but only with reliable evidence as to the existence on the proposed tenement of one site located within the boundaries of the tenement which qualifies as having particular significance to the holders of native title, namely Jumbarana. It is significant in the present case to note that this is the only site of particular significance on the proposed tenement recorded on the Register of Sacred Sites.
[31] Further, 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 I note that Mr Dixon in [5] apparently contemplates that under that regime a yard will be made about Jumbarana to protect when the mining company cut in that area. On that reading of his words, it is reasonable to infer that Mr Dixon himself expects that the present statutory regime will operate in a predictable manner which will be effective to protect the site from direct interference within the meaning of s.237(b) of the Act.
[32] In conclusion therefore, in light of the evidence before me, the Northern Territory statutory regime for the protection of sacred sites, the failure of the native title party to demonstrate the existence of more than one relevant sites within the boundaries of the proposed tenement and applying the presumption of regularity, I find that it is not likely that the any areas or sites of particular significance which exists on the proposed tenement will be interfered with by the proposed grant.
Section 237(c) - Major Disturbance to land or waters
[33] 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].
[34] The government party contended at [12]-[20] 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 said at [12]-[17]:
12. In relation to s.237(c), the Government party adopts the legal principles as stated by the Tribunal in the Moses Silver Determination at paragraphs 135 to 140, subject to the application of the Mining Management Act 2001(the “MM Act”).
13. The MM Act came into operation on 1 January 2002. Environmental and safety issues have been consolidated under this new legislation, with the effect that operational management of the Northern Territory’s Substantial Disturbance regime has been removed from the Mining Act and placed under this new Act.
14. It is a condition of an exploration licence granted post-1 January 2002 that the grantee hold an Authorisation granted pursuant to s.36 of the MM Act “before carrying out on the licence area any exploration, operations or works involving substantial disturbance.”(s.166(1A) Mining Act.)
15. An application for Authorisation under s.35 MM Act requires the proposal and approval of a Mining Management Plan(“MMP”). An MMP must include:
(a) a description of the activity to be carried out;
(b) safety, health and environmental issues relevant to the activity;
(c) the management system to be implemented at the site;
(d) a plan and costing of closure activities.(s.40 MM Act.)
[16] An Authorisation is subject to the condition that the operator complies with the approved MMP(s.37(2)(a)) and any additional conditions imposed(s.37(2)(b) and s.37(3)), including, usually, the requirement to lodge a security.(s.37(3)(c)).
[17] Section 35 creates the offence of carrying out of activities without an Authorisation, the penalty for which…could be a fine of $25,000 for a natural person and [$125,000] for a body- corporate offender….
[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 ten exploration licences granted over the area of the tenement from 1972-l998 although no details of any activity thereunder undertaken on the proposed tenement are in evidence.
[39] Having concluded like Member Sosso did in Moses Silver, even before the regime was further strengthened by the Mining Management Act provisions, that the government party standard exhibit before me “highlights that the Northern Territory has in place a well advanced, integrated and proactive 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”, and taking into account that the area of the proposed tenement is less than one eighth of the claim area and having considered the evidence of likely 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 10361 to Ashton Mining Ltd is an act which attracts the expedited procedure under the Native Title Act 1993(Cth).
J.E.Stuckey-Clarke
Member
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