Mr Sandy Limmen and Others on behalf of the Alawa, Marra and Nganji People/Astro Mining Nl/Northern Territory - [2002] NNTTA 196

NATIONAL NATIVE TITLE TRIBUNAL

Mr Sandy Limmen and Others on behalf of the Alawa, Marra and Nganji People/Astro Mining NL/Northern Territory, [2002] NNTTA 196 (30 August 2002)

APPLICATION NO: DO01/116

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 SANDY LIMMEN AND OTHERS ON BEHALF OF THE ALAWA, MARRA AND NGANJI PEOPLE (Native Title Party)

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ASTRO MINING NL (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 August 2002

Hearing dates: 9 April 2002, 16 May 2002,5 June 2002.
Government Party: Mr Nicholas Papandonakis, 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: Ms Lisa Bowyer, Tenement Manager

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, 136 ALR 557
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002

Andy Andrews, Tex Camfoo and Peter Woods & ors/Northern Territory/ Exploration and Resource Development Pty Ltd, DO 01/123-5, Member Sosso, 19 August 2002.
Don Rory & Ors/ Northern Territory/Astro Mining NL, DO 01/110 & 111, Deputy President Franklyn, 10 May 2002.
Arthur Que Noy & Ors/ Northern Territory/ Biddlecombe Pty Ltd, DO 01/112, Member Sosso, 4 July 2002.
Angus Riley & Ors/ Northern Territory/ Johnston & Sakurai, DO 01/70 & 71, Deputy President Franklyn, 17 April 2002.
Dingie Neade/ Northern Territory/ McCleary Investments Pty Ltd, DO 01/55, Member Stuckey-Clarke, 19 April 2002.

Allan Griffiths/Northern Territory/BHP Billiton Minerals Pty Ltd, DO01/100,Member Sosso, 5 July 2002

REASONS FOR DETERMINATION

Background

[1] On 11 July 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 22296 (“the proposed tenement”) to Astro Mining NL (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.

[2] The proposed tenement covers an area of 499 blocks (1581sq km) (a block is approximately 2.9 square kilometres) within the Tanumbirini locality. The area of the proposed tenement is comprised of the following pastoral leasehold: Perpetual Pastoral Lease (“PPL”) 1046 (commonly known as Broadmere), Perpetual Pastoral Lease 1059 (commonly known as Beetaloo); and Perpetual Pastoral Lease 1060 (commonly known as Tanumbirini).

[3] On 12 September 2001 a native title determination application was filed with the Federal Court (DC01/52) (D6053/01). The name of the application is “Nathan River” and the applicants are Mr Sammy Limmen, Mr Sandy August and Mr Stephen Roberts on behalf of the Alawa, Marra and Nganji Peoples. The application was registered on 12 October 2001. The “Nathan River” application, which covers a geographical area of 4885.62 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 (12 November 2001) after the section 29(4) notification day (11 July 2001). Mr Sammy Limmen, Mr Sandy August and Mr Stephen Roberts are 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 19 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 20 November 2001 I made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. At the listings hearing on 16 May 2002, having assessed the evidence then before the Tribunal, I made the following observations:

…[in this matter] the standard documentary and affidavit material is now on the file. In light of that I want to say something that is quite serious as to the material…What I am going to say is in the context of my raising the question of the necessity for an on country hearing…I appreciate that none of you have had notice about that and I will be quite happy to give you time to consider what I am going to say and to take instructions.

It is my view that having read all the papers …I would be much assisted if [this matter] were heard on country. The criticisms which the government party has made of the objectors’ evidence in its contentions in reply have, in my view, real weight and I would be loathe to determine [the matter] adversely to one party because the evidence filed by that party is less than comprehensive. …

The government party says in its contentions in reply in relation to the evidence with respect to s.237(a) that the location of the communities which are said to be in the vicinity of the ELA is very imprecise and that there is no information as to whether the communities are in fact communities of relevant native title parties and if so, how many [of them there are]. That is in [56] of the contentions in reply.

In relation to section 237(b) at [70] Mr Lavery [for the government party] makes a point of some substance about the fact that there are 22 sites referred to in the AAPA sites information but only 6 of them are referred to in Mr August’s affidavit…..In [86] and following of the [government party’s] contentions in reply, the [native title party’s] affidavit material is commented upon in some detail and some real questions raised as to the cogency of the affidavit material as effective evidence before me.

Thirdly, in the contentions in reply, the government [party] makes an important point about authorisation [in respect of Mr Roberts’ evidence only]. That is at [107] of the contentions in reply. So in relation to 115, there are real issues and criticisms made of that native title party’s evidence in relation to..the communities said to be in the vicinity, in relation to the sites [of particular significance] and in relation to authorisation…..

[Further] no doubt those of you present today will have read my views on the land claim reports and [know] that similar views are held by Member Sosso and Member Franklyn. That is, that when land claim reports are 20 years old, as this particular land claim report is [in this matter], [the report] is only of historical value and [cannot be without more] evidence of present day community or social activities.

On the other hand, the land claim reports [may be of evidentiary value before the Tribunal] where the Commissioner had before him deponents who are the same people or people closely related to the people who are giving evidence in the particular objection inquiry…..I certainly do not say that the land claim reports are irrelevant [ in such a case] and have not said that. But the usefulness of land claim reports is a live issue before me in [this] inquiry as it has been in others. Taking all those matters on board, in my view as the evidence stands, I am not convinced that I am able to adequately determine [this matter] on the papers as section 151 requires me to be satisfied. And that is why I want to discuss the feasibility of an on country hearing with the parties today. And I am also interested in any suggestion any of the parties may have as to how the difficulties which I have raised, that is the issues raised by the government party in respect of the objectors’ evidence and which I say are issues I do give weight to, might be appropriately addressed. I am interested in particular in how the native title party, Mr Rumler, would see that these issues be addressed. Obviously they could be addressed by an on country hearing and that is what I am suggesting but if you have some other means whereby the difficulties would be addressed, I would like to hear from you…..

And what I think we should do in these circumstances is adjourn the listings hearing for some short time to give you, Mr Rumler, time to consider what might be done in order to remedy those issues raised by the government party and which I have spoken about today…But they are, I stress, evidentiary issues not matters for legal submission…I have an obligation under the Act to be satisfied that I can adequately determine matters on the papers. I am not suggesting an on country hearing to raise obstacles but I do feel with [this matter] that the state of the affidavit evidence must be looked to before I am satisfied. Now, if you are able to do that on the papers, then the need for an on country hearing will be obviated [and] the cost and expense of that prevented.

[Discussion ensued in which Mr Rumler sought time to seek instructions and although 27 May was a convenient time for the next listings hearing, Mr Rumler sought the later date of 5 June 2002 because of the unavailability of Mr Frith of counsel.]

At the listings hearing convened on 5 June, 2002, Mr Frith of counsel appeared and said:

The position can be summarised in that it is possible to provide sufficient evidence to persuade you of what you need to be persuaded under section 151 without a need for an on country hearing. And I am also instructed that the Land Council doesn’t have resources to support any such hearing on country at this stage….My instructions as to the resource position of the Land Council is that it is focussing, in regard to objections to the expedited procedure process, on a series of meetings it has organised regarding proposed agreements between grantee parties and particular groups as to the memorandum of understanding that has been reached between those exploration companies and the Northern Land Council…..And it is proposed that those meetings take place basically in the next few months in this Dry season…And that the allocation of resources precludes in the near future any on country hearing of this nature.

Mr Papandonakis for the government party then said:

Since the last listings hearing I have also been able to get instructions in relation to the future progress of [this matter]. And I can now advise the Tribunal that the government party strongly opposes any proposal to amend directions to allow further evidence to be supplied via affidavit and/or submission material. It is our submission that the Tribunal has enough evidence currently before it to determine these matters on the papers as they currently stand….It is the government party’s submission that the requirement in section 151(2) of the Act does not apply to situations where there is a mere paucity of evidence as much as it applies to where there is a clear inconsistency on the evidence.[He then referred to the dictum of Carr J. in Ward v. W.A. that “where facts are peculiarly within the knowledge of a party to an issue its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence. Again if this happens it is not because of the application of an evidential onus of proof but by the application of the common sense approach to evidence.” And continued: In our submission the native title party has taken its chances and decided not to produce evidence .which is peculiarly within its knowledge and it is now, with respect, incumbent on the Tribunal to determine [the matter] to make a determination on whatever inferences it considers appropriate.

I then said:

Thank you, Mr Papandonakis. Your proposition is that the issues are crystallised, the parties have had the opportunity to provide evidence and that is that.

Mr Papandonakis then said:

Well, my proposition, Member, is that there is clearly a failure to produce evidence in these matters. And the Tribunal has on numerous previous occasions in the Northern Territory determined matters on the papers applying its common sense approach to the evidence and drawing inferences where necessary.

I then said:

Mr Papandonakis, I am applying the common sense approach as I said and I am dealing with the particular [matter] before me. Certainly in the matters I have so far determined [in the Northern Territory] I have not been faced with such a level of incomprehensibility [ in the objectors’ evidence] as I am now faced with in [this matter]. And it is assistance I seek in order to be able to determine the issues which are crystallised in a way which makes sense at least to me. That is my dilemma in [this matter]. I do take your point that once the parties have had an opportunity to provide evidence and the issues have crystallised, it would usually only be where there is some inconsistency and cross-examination, for instance, is required. But this is not an ordinary adversarial procedure. I am faced with some inconsistencies in the evidence as well. I think that is a matter of characterisation. The problem I have is that section 151 requires me to hold a hearing if it appears to me that the matters cannot be adequately determined on the papers….Now the words “adequately determined’ in section 151 have been considered by this Tribunal [ in WA v. Thomas] but they have not been considered by [the Federal Court]. And as I said in [this matter] I find myself in a dilemma. I find myself without the assistance I need from the parties to determine this inquiry. And that assistance I know would be provided if I were to hold a hearing and have the parties explain to me- in particular have the native title parties explain to me what is meant by the evidence. The native title parties suffer under the disadvantage of giving evidence not in their first language. The affidavits before me appear to contain a lot of material. [However] the manner in which they are expressed and the manner in which the material is presented does not assist me at all to assess in any proper way what the objectors’ deponents are trying to tell me.

In these circumstances, I am taking on board the fact that the native title party is unable to attend an on country hearing and it is not really open to me to order an on country hearing to which the native title party could not come. I am therefore minded to grant Mr Frith a very, very tight time period within which to provide any further evidence or contentions which may assist in relation to these issues…. I am afraid this is a great indulgence, Mr Frith that is being offered to the native title party. The government party has pointed that out. I am prepared to grant this indulgence but it is not something that I will be regularly doing in every matter I have before me but I find myself as the constituted Tribunal in this matter in a genuine dilemma. So I am prepared to grant you a very, very short time period in order to provide the evidence……It is really only the evidence I am interested in, Mr Frith. Long submissions on what the evidence really means doesn’t interest me much and I don’t think would assist me much.”

I then made directions that the native title party filed any further material by 12 June 2002 and the government party and grantee party file any responses by 19 June 2002 and that the matter proceed to determination on the papers on 19 June 2002. In due course, the native title party filed further contentions and an affidavit of an anthropologist, Ms Anna Nolan affirmed 12 June 2002, and the other parties filed further contentions.

Having received the further material from the parties, I formed the view that I was satisfied that I could adequately determine the matters on the papers and I now proceed to do so.

The Evidence

Objectors’ Evidence

[7] The native title party relies upon the affidavits of Sandy August, Stephen Roberts and Barney Ilarga all of Hodgson Downs in the Northern Territory of Australia, and Anna Nolan, anthropologist, of 15 Cosker Street, Annerley in the State of Queensland. These are set out in full below:

Affidavit of Sandy August, affirmed 5 April 2002.

I, SANDY AUGUST, of Hodgson Downs in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:

I live at Hodgson Downs. I am an applicant in the Nathan River native title determination application (DC01/52).
The area of the application includes the area of ELA 22296. I have seen a map of the area of the ELA. Now produced and shown to me marked “SA 22296” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
ELA 22296 is the north eastern part of Tanumbirini pastoral lease. I am the main Junggayi for Mambali sites in the licence area, including Ngubaiyin. Stephen Roberts and Barney Ilarga are also Junggayi for these sites and their Mambali Dreamings.
Karrimala is the Dreaming for Taipan Snake. It comes down from Tanumbirini Hot Springs. That Taipan Snake went all the way down the Cox River to Wamungku, that little station that belongs to Ginger Riley. It’s my uncles’ country, Hot Springs; and that’s his main place, that Dreamtime story for the Taipan Snake. Karrimala, he’s not dead, he’s still alive. We got picaninny, a circumcised one; we got him into that ceremony. It’s Mambali skin.
Hot Springs is northwest from Muymin, we call him Ngubaiyin. That’s my uncle’s country there. I am the main Junggayi for it, number one. Stephen Roberts and Barney Ilarga are off-siders, my backstop Junggayi. Law runs that way. For Mingirringgi, we got one young fella here now, Esau, and David Johns, Barbara Johns; all that lot now, every one of them.
If they want to put a road in there, they might have to find somewhere else, because we don’t want our sacred sites to get damaged with a road going across there. If they put a road on that Dreaming track, they’ll have to pay. They might knock down an important tree, or something like that. I’ve seen that with my brother. They cut through his Dreaming track; that means they cut his body. I reckon that’s why he went.

Whitefellas don’t understand about that. We been already talk to the NLC mob, and lawyer and judge. They know a bit now. Mining companies already know: some mining companies know, and some don’t. They’ll just go ahead and make a road, but they don’t know where that Dreamtime been travelling through.
Ngubaiyin, that’s where Karrimala been start from. He went down that way, north.
Mokurrong, Short Python, went through O.T. way.
There is Quiet Snake, west side from Ngubaiyin, behind that hill. Then from Ngalkgumarndaja, he come down to Dandandi cave. He come down through there, Quiet Snake. Two Little Boy trying to have a shot, opened that cave. One left-hand bloke did, he opened that cave. But that right-hand bloke couldn’t open him up with the boomerang. Then the Boys went down to a place called Akabakbanyir lagoon. Just on one side of the river, Two Picaninnies been laugh there, at that hill now, when they been open that, or damaged, or hit that cave, those two young fellas. Then they went down the river and had a good laugh, you know, at what they did at that cave. And they went on to a place called Marbunmiyn. It’s still Mambali skin. I’m Junggayi for that place. I’m the right man for that place. They went right up to Ganangandalyi, a big waterfall, Rocky Waterhole. Those are two Mambali Little Boys, and a Mambali Snake, Wurradbunggu. That Quiet Snake Wurradbunggu went higher up too. They followed that creek up, the Two Little Boys and that Snake. That river runs down to the Cox River, but this mob went higher up to Lagoon Creek and Two Mile Creek. They went up that way, south, right up to Top Yard Creek south of ELA 22296. They call it Yurrumbu, part of that creek.
That big waterhole on Tanumbirini is called Kulurra, at Lobs Camp Yard on Lagoon Creek on ELA 22296. There is a big lagoon inside the paddock there. There is a Burdal Kangaroo, Yarrkala, the same Dreaming as Yunggumala. We’re mixed there, Burdal and Guyal.
That Burdal Kangaroo and Guyal Sugarbag been meet up at Ambulya. There’s two little sharp stones standing up there. Then that Kangaroo been go from Ambulya to Kangaroo Spring. Then he been go to Lagoon Creek, higher up. That Kangaroo went between that waterfall at Rocky Waterhole, Gandangandalyi, and Lagoon Creek. He been go straight up Lagoon Creek to the big lagoon inside the paddock at Lobs Camp Yard, Kulurra.
And from there he went to Tommy Lagoon, on the sunrise side. From there, at Tommy Lagoon Creek he went to October Creek, Jilajaja, southeast across Broadmere on to ELA 22298. Jilajaja is that October Creek Paddock area. Broadmere homestead is on that northern side, lower down from Jilajaja. He goes to that Eleanor Falls, that Kangaroo. Eleanor Falls, is a waterfall on Bauhinia Downs. Then he goes to the Broadmere boundary fence on Balbirini. That Kangaroo been go to Three Knobs then.
On Old Tanumbirini Station, there’s Muynmin. That’s old Devil Devil Dreaming, from Marnta, on Beetaloo to the south. Him Guyal. He belongs to Barney Ilarga and Tiger Robinson and Jimmy Farrer, and the Hume mob; all the girl here, Donald Hume, Tom Hume family: Tom and Dan and Donald. Just that Devil is the only Dreaming there at Muynmin.
That Devil Devil came Top Yard way from Marnta. Come through Gararangma. That Devil Devil and Snake passed each other at Gararangma.
There’s a site at Beauty Plain White Rocks, that one’s Karrimala, Taipan Snake, that Poison Snake. That’s the Snake we been talk about from Hot Springs Valley on ELA 22296. He went to Beauty. There’s one spring there, it’s on the west side; and there’s a hill there, Marmbulligan.
Then the Karrimala, Snake, went over that hill from Beauty, east to that Poison place, Mawiya. That Snake followed that Tanumbirini Creek down, perhaps one kilometre. Then he turned off, sort of east. Then he followed that creek right down to that waterfall there, Burineyi. But him on right hand side. And he went lower down, hit that creek there, that Taipan, and he went right down one waterhole on the Cox River called Yarrndanyi, that cheeky one Snake now. Then from there, across that creek, and he went to that place at Wuranyina, Pumpkin Yard plain, Nathan River way.
The Taipan been found that Kangaroo there at Wuranyina. That Kangaroo been turn back at Jilalala, that round hill. That Kangaroo went to Mingalyin, then from Mingalyin he went to Wuranyina and met that Snake. They been pass each other, then that Snake been go up to Limmen Gate, and he been follow that Limmen Bight River down. He went to Four Archers, and Kuduwarra, Wirriwumal, Wamunggu billabong, right down the bottom near the sea.
Janabura is that lagoon now, on ELA 22296 not far from Tanumbirini Creek. Well, him Kangaroo that place, Yarrkala/Yunggumala, the one that came from Maryfield.
He belongs to my sons, that country, Janambura. Well that October belong to Vincent; and Janambura belongs to Lesley, that younger one, my son. That two fella we call margbala. They are just like a brother with this Hume mob family, and even that old Tiger. No matter they Guyal, but according to our law, they all my sons’ mob. They call me Daddy too, because father belong to this lot my margbali – just like brother. And all this lot come from one land. Even that Hume mob family – Tommy, Dan – they all from there, and also my two sons. Their country goes from Muynmin right up to Janambura, right up to Cox River country, tight up to Horse Creek to Labanga and Anderson’s Hole, and right up to October Creek and Eleanor Falls.
I think before the mining company goes in to a place, we should have a talk. We still follow that one. We got to keep on to that law for that country. We can let them come to us, the family. I already been talk to NLC and even the government about things. There’s a whole lot of business that I’ve always been talking to them about, all the time. If mining company wants to go and have a look at that country, they have to take one of us Junggayi with them. We don’t want them to do damage. The mining company should take Junggayi with them, just like Barney and I did before. We three, Stephen Roberts, Barney Ilarga and me, are Junggayi.

Affidavit of Stephen Roberts, affirmed 5 April 2002:

I, STEPHEN ROBERTS of Hodgson Downs in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:

I live at Hodgson Downs. I am an applicant in the Nathan River native title determination application (DC 01/52).
The area of the application includes the area of ELA 22296. I have seen a map of the area of the ELA. ELA 22296 is the north eastern part of Tanumbirini pastoral lease. I am Junggayi with Sandy August and Barney Ilarga for Mambali sites in the licence area, including Ngubaiyin, and their Mambali Dreamings.
My skin name is Ngapunun; Burdal. My father found me close up to Ngukurr. I been born there, in 1927, January. I been grow up at Old Mission. And one of them Yankee blokes, Jimmy Gibbs, he had that Old St Vidgeon, and that’s where I been grow up properly. My old brother-in-law Jimmy Gibbs used to take me by horse, cart him round me, while he go mustering cattle. Then I went from there in 1943. I went from Old St Vidgeon to Nutwood then. Then I got made a man there at Nutwoods Downs. When I come to teenager, I left Nutwood, I went to Old Tanumbirini, Muynmin. And from Old Tanumbirini, I went to Old McArthur.
I am aware from my own knowledge of, and agree with, the contents of paragraphs [4] to [21] of the affidavit of Sandy August in this matter. I can speak for those sites and Dreaming tracks with Sandy August and Barney Ilarga.

Affidavit of Barney Ilarga, affirmed 5 April 2002:

I, BARNEY ILARGA, of Hodgson Downs in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:

I live at Hodgson Downs. I am a member of the native title claim group in the Nathan River native title determination application (DC01/52).
The area of the application includes the area of ELA 22296. I have seen a map of the area of the ELA. ELA 22296 is the north eastern part of Tanumbirini pastoral lease. I am Junggayi with Sandy August and Stephen Roberts for Mambali sites in the licence area, including Ngubaiyin, and their Mambali Dreamings.
I am aware from my own knowledge of, and agree with, the contents of paragraphs [4] to [21] of the affidavit of Sandy August in this matter. I can speak for those sites and Dreaming tracks with Sandy August and Stephen Roberts.

Affidavit of Anna Nolan, affirmed 12 June 2002:

I, ANNA NOLAN, anthropologist of 15 Cosker Street, Annerley in the State of Queensland, do solemnly and sincerely declare and affirm as follows:

I am a consultant anthropologist. I have been working as an anthropologist in the Northern Territory since 1990, mainly working as an employee of AAPA in registering and recording sacred sites, and, latterly, researching traditional ownership and other matters for the Northern Land Council. I have performed anthropological work in the Borroloola region since 1997, and in the Broadmere/Nathan River area since 2001.
I am aware of the contents of the affidavit of Sandy August, and the information provided by AAPA concerning sites in and around the licence area.
The word ‘margbali’, used in [20] of Sandy August’s affidavit, refers to the close relationship between Sandy August’s own family and the Hume family, who share responsibility for the sites Janambura and Muynmin. This relationship gives Sandy August authority to speak for those sites on behalf of both families, as he is the person in those two families who is most senior, according to traditional law and custom, and who has most traditional authority.
In general, in my experience in this region, a reference to a site being associated with a Dreaming is a reference to an ancestral being having stopped at that site. In the instances where Sandy August has named sites, his evidence has focussed upon both Dreaming stories and ceremonial songs that record those site names.

[8] The native title party submitted the following further evidentiary material to the Tribunal:

(a)The Cox River (Alawa/Ngandji) Land Claim Report dated 20 November 1984 (“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)A document entitled “Exploration Activities” annexed to the affidavit of Mark Frederick Foy. This document is relied upon as a statement of expert opinion.

(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 and the Transcript of Evidence dated 3 December 2001. The 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”).

(h)Extracts from the Transcript DO01/19- Site Visit (page 6-10) Kybrook Farm (page 28).

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 its Standard Exhibits Documentation as particularised in its Contentions.

The Grantee Party’s Evidence

[10] The grantee party advised in its further contentions signed by Ms Lisa Bowyer, Tenement Manager, dated 14 June 2002 at [5]-[10]:

“Astro Mining NL understands and intends to conduct exploration in accordance with the terms of the Mining Act and the conditions as set out in the Second Schedule of Conditions for the Exploration Licence.

Astro Mining NL acknowledges that the land the subject of the Exploration Licence may contain areas of significance to the Objectors and is prepared to negotiate an agreement pursuant to which certain exploration activities could be conducted.

Astro Mining NL is committed to the establishment and maintenance of effective and beneficial community relations with all traditional Aboriginal landowners as outlined in the Company’s Community Relations Policy[ the Attached Policy contained the following:”Ensure that its activities are conducted in compliance with local, State and Federal Government legislation and where appropriate indigenous customs.]

Astro Mining NL has a genuine interest in preserving the attributes of Australia’s environment as outline in the Company’s Environmental Policy[attached]….

Astro Mining NL states again that all stages of exploration will be conducted in full consultation with all relevant landowners.”

Also placed before the Tribunal was a document entitled “Proposed Exploration Program” which set out in detail the program for exploration activity over 6 years, which may involve reconnaissance surface geological mapping, the setting up of a field camp, stream or loam sampling or geophysical anomaly followup by sampling and/or drilling, as well as drilling of magnet targets.

The Parties’ Contentions

[11] The 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 [7-8] 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 [57]-[60] contends that:

“[57]There are several aboriginal communities ‘in the vicinity of’ the licence area which are occupied by members of the native title claim group. They include;

a. Tanumbirini Station Homestead is about 25 kilometres southwest of the licence
area.

b.Minamia Aboriginal Community on the Alawa Aboriginal Land Trust is about 10 kilometres north of the licence area.
c.O.T.Downs Station lies about 4-5 kilometres east of the licence area.
d. Broadmere Station homestead lies further north about 20 kilometres east of the licence area.

[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. The road to O.T. Downs runs east from the Carpenteria Highway through the

southern finger of the licence area.
b. Broadmere road runs parallel to, and about 20 kilometres from the southern part of the eastern boundary of the licence area.
c. The Carpenteria Highway comes within 5 kilometres of the southern tip of the licence area at it’s closest point.
d. Several lesser tracks traverse the licence area, especially in the vicinity of the (abandoned) Old Tanumbirini Homestead, which lies in the centre of the licence area, on the Tanumbirini Creek.

[58]There are several water bodies and other areas of environmental significance in and around the licence area. These are used for fishing, as sources of drinking water and may sustain and be part of areas and sites of significance. They include;

a. Lagoon Creek and Tanumbirini Creek ( which joins just north of the licence area to form the Cox River) flow across much of the licence area from south to north.
b. Arnold River is less than one kilometre from the northwest corner of the licence area.
c. Lansen Creek rises a very small distance from the licence area’s eastern boundary.
d. October Creek rises in the southern finger of the licence area.

[60] The community and social activities of the Native Title Claim group include;

a. Foraging, which was found to include hunting, gathering food and collecting firewood, and obtaining water: in general, obtaining the means of day-by day material sustenance [Land Claim Report[29], [108], [109],[112], [120] An inference can be drawn that this activity takes place not only in the Land Trust area, but also in the licence area, which adjoins the Land Trust area to the west. It is unlikely, given the general nature of the finding in the Land Claim Report and the particular nature of the evidence that gave rise to that finding, that foraging by the land claimants, which includes many of the native title holders, is limited to the area of the Alawa Aboriginal Land Trust.

b. The gathering of mineral resources for manufacture of tools and implements and for ceremonial purposes [Land Claim Report [155]];

c. Collection of bush medicines [Land Claim Report [109], and photograph on page 25];

d. Teaching children about traditional laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas or sites[Land Claim Report[117]];

e.The community of native title holders actively look after country, by visiting and maintaining sites[Land Claim Report [137]]. This activity is conducted by individuals with specific responsibility for that area or those sites.

These activities occur over some or all of the licence area, and in its vicinity. These activities occur regularly and are carried on by more that isolated members of the native title group.

[16] The government party in its contentions in reply at [56-57] said:

Tanumbirini Station homestead, Minamia, and O.T.Downs homestead and Broadmere Station homestead are contended in paragraph 57 of the Objector’s contentions as relevant communities, but it is uncertain if they are, wholly or partially, a community of relevant native title claimants, the number of residents, and whether they are seasonally or permanently occupied. In addition, it is conceded that none are situated on the proposed licence area, the closest being 4-5 kilometres east and that fatherest 25 kilometres south-west.

[57] It would require a double inference to conclude, without evidence, that the presence of a community in the general vicinity of the proposed licence area indicated members of the native title claim group resided in those communities and that those members carried out community or social activities within the proposed licence area. With the exceptions noted, no such evidence is provided.

[17] The evidence before me discloses that there are no aboriginal communities actually located on the proposed tenement but that there are four communities located in the vicinity of the tenement, namely Tanumbirini Station homestead situated 25 kilometres to the southwest of the licence area, Minamia Aboriginal Community on the Alawa Aboriginal Land Trust situated about 10 kilometres north of the licence area. O.T. Downs Station lies about 4-5 kilometres east of the licence area. Broadmere Station homestead lies further north about 20 kilometres east of the licence area.

[18] I note also that the Government Party has led evidence of quite extensive previous exploration activity with 24 exploration licences granted over the area in the past, including in the last twenty four years.

[19] 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.”

[20] 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.”

[21] All these native title party deponents live at Hodgson Downs which is not situated on the proposed tenement or in within its vicinity. I am prepared to infer that there exists an aboriginal community there. There has been substantial debate about whether the other communities contended for by the objectors are relevant aboriginal communities for the purposes of s.237(a) although they are not situated on the proposed tenement. The government party rightly points out that there is no evidence that any relevant native title holders reside in them. As Member Sosso pointed out in Kathleen Parry & Ors/Northern Territory/Troy Resources,unreported, DO 01/84, 24 May 2002 at [14]:

In essence, the contentions of the government party is soundly based. Section 237(a) is directed towards the community or social activities of native title holders. The fact that there are communities on or in the vicinity of a proposed tenement is not relevant to a section 237(a) inquiry unless there is evidence that the holders of native title reside in those communities, or otherwise have a connection with them.

[22] There is no evidence that any native title holders reside at any of the communities on the tenement. Further, I do not accept the objectors’ contention that the Alawa Aboriginal Land Trust area can be treated as if it were a community for the purposes of the inquiry, merely on account of its status as Aboriginal freehold land. As Member Sosso said in Kathleen Parry & Ors/Northern Territory/ Troy Resources, unreported, D0 01/85, 12 June 2002 at [13]:

I have previously determined that the fact that land adjoining a proposed tenement is of a particular tenure does not of itself assist the Tribunal. The fact that the tenure in question is an Aboriginal Land Trust may lend itself to the carrying on of community or social activities by the native title holders. However, the existence and nature of such activities must be demonstrated by evidence, and cannot be assumed simply because there are land and waters falling within a particular tenure type.

[23] Although I am prepared to hold that there exists a community of native title holders at Hodgson Downs, that aboriginal community is not located on the proposed tenement and is situated a substantial distance away in fact and there is no evidence of any contemporary community or social activities conducted by those native title holders which might be the subject of interference if the licence is granted. The only evidence of such activities is said to be found in the Land Claim Report which was published on 20 November 1984. As I have previously held, evidence of this kind provides evidence of activities in the past and cannot of itself, and without more, provide a sufficient basis for an evidentiary inference that such activities as were found to have been conducted then, on the land subject to the Land Claim which is not coincident with the proposed tenement, are conducted now by native title holders on the proposed tenement. Although both native title deponents were witnesses before the Land Commissioner, that is not sufficient further evidence to enable such an inference to be drawn. In this matter with respect to the Land Claim Report, I take the same view as Member Sosso did in relation to other Reports of similar age in Andy Andrews, Tex Camfoo and Peter Woods & Ors/ Northern Territory/Exploration and Resource Development Pty Ltd, unreported, DO 01/123-5, 19 August, 2002 at [86-88].

[24] In any case, 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 previous cases this has proved to be a difficult standard to satisfy in cases like the present where there is evidence that the land the subject of the proposed tenement has been the subject of previous exploration activity and there is no evidence that such activity has at any time in the past caused interference with community or social activities: see Don Rory & Ors / Northern Territory/Astro Mining NL, unreported, DO 01/110 and 111, 10 May 2002, Deputy President Franklyn QC at [16]. However, in the present case, this question does not arise for in my view, there is no evidence before me of contemporary community and social activities carried out on the proposed tenement by the objectors. Therefore, I hold in this matter just as Member Sosso held in Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster/ Northern Territory/Biddlecombe Pty Ltd, DO 01/112 unreported, 4 July 2002 at [24]:

“It is a condition precedent for conducting a section 237(a) inquiry that the native title party produces some contemporary evidence of community or social activities. Here no such evidence has been produced, and accordingly, I am unable to find that there are social or community activities conducted by the native title holders on the proposed tenement. No issue of conducting a predictive assessment of the likelihood of interference pursuant to section 237(a) arises due to the absence of evidence of relevant contemporary activities.”

Section 237(b) – Sites of particular significance.

[25] 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.

[26] 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].

[27] The native title party relies primarily upon Mr August’s affidavit and the map annexed thereto. The affidavits of Mr Roberts and Mr Illarga is essentially corroborative of Mr August’s evidence. The affidavit of Anna Nolan is also relied upon.

The government party challenged Mr Illarga’s authority to speak for the objectors, contending that he is not a registered native title claimant and does not identify to which subgroup he belongs and that his “self-warranting” was not sufficient to establish his authority. Whilst I make no finding as to whether self-warranting might not be acceptable to the Tribunal in an appropriate case taking the common sense approach to evidence, I find in this matter that there is evidence of Mr Illarga’s authority to speak albeit corroboratively only for the native title claim group. In their further contentions, the objectors contended at [33]-[34] that he is Junggayi, with Mr Roberts and Mr August, for Mambali Sites and that is established by Mr Roberts at [2] and Mr August at [3]. I accept that contention. In making this finding, I concur in the comments made by Member Sosso in Allan Griffiths/Northern Territory/ BHP Billiton Minerals Pty Ltd, DO 01/l11 at [14-[21].

[28] The native title party also relies upon the AAPA sites information and map which indicates that there are seven recorded, not registered, sites notated (on the map from top to bottom). They are 5865-1 (Ngubaiyin), referred to by Mr August at [3] and [10]). 5865-2 (Gandangandalyi referred to by Mr August at [10] and [12]), 5865-4 (Muynmin referred to by Mr August at [14]), 5865-6 (Dandandi Cave referred to by Mr August at [10]; 5865-7 (Akabakbanyir referred to by Mr August at [10]), 5865-6(Jananbura referred to at [19] and [20] by Mr August) and 5865-10 (Beauty Plain White Rocks referred to by Mr August at [16). All of those sites are located on the tenement on the map annexed to the deponents’ affidavits apart from Ngubaiyin which is located off the tenement in the place where the site 5765-1 Ambulya is located on the AAPA map. On the AAPA map Ngubaiyin is located on the tenement.

[29] At [69-72] of the Objectors’ contentions numerous sites of particular significance are set out and contentions made as to their particular significance.

[30] 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.

[31] In its Contentions at [8] and contentions in reply at [67-75], the government party makes its usual contentions as to the efficacy of the Northern Territory statutory regime and contends that there is an insufficiency of cogent evidence which could allow the Tribunal to conclude in the contextual risk evaluation where other relevant factors are borne in mind that it is likely that there is a real risk of a proximate impact to an area or site of particular significance.

[32] In this matter, the Tribunal has been presented with lengthy contentions by the native title party as to the existence of sites of particular significance to the native title holders within the meaning of section 237(b) but only with reliable evidence that seven only of those sites to which Mr August refers are located within the boundaries of the proposed tenement. The location of all seven sites on the proposed tenement is confirmed by the AAPA sites information and map. Further, Ms Nolan deposes in [5] that:

In general, in my experience in this region, a reference to a site being associated with a Dreaming is a reference to an ancestral being having stopped at that site. In the instances where Sandy August has named sites, his evidence has focussed upon both Dreaming stories and ceremonial songs that record those site names.

[33] As to the balance of the sites recorded on the AAPA map for the proposed tenement but not referred to by any of the deponents, I attach little or no evidentiary weight. As Deputy President Franklyn QC said in Angus Riley and Ors/ Northern Territory/Johnston and Sakurai, unreported, DO 01.70 and 71, Hon EM Franklyn QC, 17 April 2002 at [17]:

…s.237(b) is concerned with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title in respect of the land or waters concerned, and that the expression ‘particular significance’ necessarily excludes areas and sites that may be significant to those persons but do not have the characteristic of ‘particular significance’ within the meaning of the section. The existence of that characteristic cannot be determined simply by the recording or registration of a site under the Sacred Sites Act. Nor is an alleged relevant site excluded from consideration because it is not recorded or registered under that Act. The subsection is concerned with the likelihood of interference to a relevant area or site. This requires evidence of the existence of the claimed area or site, including identification of its location and evidence of its relevant particular significance, ie that it has special or more than ordinary significance to the native title holders, in accordance with their traditions. In the absence of that evidence there can be no determination of likelihood of interference.

And see my comments in Dingie Neade/Northern Territory/McCleary Investments Pty Ltd, unreported, D0 01/55, 19 April 2002 at [22].

[34] It is necessary to deal with the government party’s contention in reply at [99]-[100] that “the affidavit of Mr August does no more than discuss a number of sites …There is no evidence before the Tribunal that those sites are of particular significance to the Objectors…..the anthropological mapping exercise in paragraphs 7 through 19 is of assistance to the Tribunal and may go towards establishing significance and even particular significance but, without more, fails to do so…...If there is any particular significance to the nominated sites, the particularity of that significance should be explained to the Tribunal.” In essence, the government party claims that merely indicating that a site is part of a string of dreaming sites should not lead to an inference of particular significance: see contentions in reply at [92].

[35] In [23]-[34] of its further contentions filed on 12 June 2002 the native title party sought to contend that a site may be of particular significance even where it is part of a string of dreaming sites and that it is not necessary for a site to have a particular song or myth associated with it for it to have particular significance. Whether or not this is so must be assessed in light of the evidence put forward as to the traditions of the native title holders. In the present case, I accept Ms Nolan’s evidence in [5] that where Mr August named sites, he did so focussing upon both Dreaming stories and ceremonial songs that record those site names and that therefore there is a song associated with the site and also that a reference to a site being associated with a Dreaming indicates that there is a myth associated with the site. Therefore, on the basis of this expert evidence, in my view particular significance is established in respect of the six sites he has precisely located on the map annexed to his affidavit and in respect of Ngubaiyin as well. I am prepared to accept on balance that the AAPA location of that site within the tenement is to be relied on in this instance. I find therefore that those are sites of particular significance properly evidenced and precisely located.

[36] However, that is not the end of the inquiry under s. 237(b). 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. I accept the government party’s contention that the protective and regulatory regimes at both the Territory and Commonwealth levels and the Second Schedule Conditions significantly reduce the likelihood of interference with sites of particular significance.

[37] Further, the grantee party has led evidence before this inquiry to demonstrate its intention to comply with that regime and to consult with native title parties at all relevant times.

[38] Finally, the government party points out at [102-7] of its contentions in reply that Mr August does not depose to any interference with any sites although there has been significant previous exploration activities in the area in the past and points to Mr August at [6] where Mr August indicates a willingness to allow mining after consultation.

[39]Therefore, in light of the Northern Territory statutory regime for the protection of sacred sites, the failure of the native title party to demonstrate the existence of a substantial number of sites of particular significance within the boundaries of the proposed tenement and taking into account the grantee party’s intention to comply with its statutory obligations, 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

[40] 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].

[41] The government party contended at [12]-[20] of its contentions 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.

[42] The government party further contended 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.

[43] The government party contended in reply at [84]:

“Taking into account:
(i) The absence of evidence of major disturbance;
(ii) The overall regulatory scheme which governs the exercise of the rights under the grant;
(iii) The additional statutory checkpoint which seeks to prevent and/or remedy
disturbances; and
(vi) 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.”

[44] The native title party contended at [108] 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.

[45] The native title party in its Contentions in Reply 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;

(j)The regime set out in the Mining Management Act 2001 will not operate in all circumstances: see [46-9]

[46] 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.

[47] 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.)

[48] 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.

[49] 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 Contentions at Attachment E provides a schedule which includes a list which shows that there have been twenty four previous exploration licences granted within the same area dating continuously from 1977 to 2001.

[50] Details have been provided in relation to the some previous exploration activities that were carried out. The activities are listed as follows;

EL 1423, EL1568, EL2715, EL3123, EL3243, EL4211, EL4212, 4542, EL4543, EL4544, EL4549, EL4551, EL4936, EL4960, EL6015, EL6284, EL7208, EL7829, EL8083, EL8085, EL8121, EL8871, EL9035 and EL9036..

Particulars of the exploration activities were provided for the following EL’s;

EL1568
Activity: Soil Sampling;
Ground induced Polarization (“IP”) survey

EL2715
Activity: Percussion drilling involved:

preparation of drill site
(ii)drill to predetermined depth;
(iii)collection of drill sample per metre (10-50kg);
(iv)onsite screening of the sample to collect a particular size fraction; and
(v)laboratory processing/analysis of the sample for mineral content.
Soil Sampling involved;
(i) the collection of sample (1kg) from a suitable soil horizon;
(ii) onsite screening of the sample to collect a particular size fraction; and
(iii) laboratory processing /analysis of the sample for mi8neral content.

EL3243
Activity: Percussion drilling
Soil sampling

EL4211
Activity: Stream sediment/loam sampling involved:

(i) the collection of sediment sample (40kg) from a suitable trap within the drainage;
(ii) onsite screening of the sample to collect a particular size fraction; and
(iii) laboratory processing/analysis of the sample for heavy mineral content.

EL4212, 4542, 4543, 4544, 4551, 6284, 7208, 7829, 8083, 8085.
Activity: Stream sediment/loam sampling

[51] 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”, the fact that the area of the proposed tenement is less than one eighth of the claim area 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 22296 to Astro Mining NL Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.

J. E. Stuckey-Clarke
Member