Mr Sandy Limmen and Others on behalf of the Alawa, Marra and Nganji People/BHP Minerals Pty Ltd/Northern Territory
[2002] NNTTA 149
•24 July 2002
NATIONAL NATIVE TITLE TRIBUNAL
Mr Sandy Limmen and Others on behalf of the Alawa, Marra and Nganji People/BHP Minerals Pty Ltd/Northern Territory, [2002] NNTTA 149 (24 July 2002)
APPLICATION NO: DO01/99
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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BHP Minerals 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: 24 July 2002
Hearing dates: 20 November 2001, 3 April 2002, 19 April 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 Ian Wallace, Commercial and Administration 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
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002
REASONS FOR DETERMINATION
Background
[1] On 13 June 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 22732 (“the proposed tenement”) to BHP Minerals 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 193 blocks(638 sq km) (a block is approximately 2.9 square kilometres) within the Mantungula locality. The area of the proposed tenement is comprised of the following pastoral leasehold: Perpetual Pastoral Lease (“PPL”) 756 (known as Nathan River).
[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 (15 October 2001) after the section 29(4) notification day (13 June 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 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 25 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 and I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section l5l of the Act.
The Evidence
Objectors’ Evidence
[7] The native title party relies upon an affidavit of Mr Sandy August of Hodgson Downs in the Northern Territory of Australia affirmed 19 March 2002 which is set out in full below:
Witness Statement of Sandy August dated 19 March 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 one of the applicants in the Nathan River native title determination application (DC01/50)
The area of the application includes the area of ELA 22732. I have seen a map of the area of the ELA. Now produced and shown to me marked “SA 22732” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
I am Jjunggayi for important ceremony sites in ELA 22732 with Stephen Roberts and Barney Ilarga. I am Mingirringgi for a section of Yarrkala (Kangaroo) Dreaming track, which is located very close to the northern boundary of ELA 22732, along the Cox River.
I think before the mining company goes to that place, we should have a talk.
My father and uncle and family used to live on the country. 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. We won’t knock them back, but we just worry about trees, and some rock, and, might be, high ground. I already been talk to NLC and even the government about these things. There’s a whole lot of business that I’ve always been talking to them about, all the time.
I reckon now, before the company goes over there again, they have to come straight in to Hodgson Downs, and get all the old fellas. We know that people used to run there, our relations used to live there.
That Nathan River, that’s the country across to Four Archers.
Yirangalangala – that’s the top ceremony. That ceremony goes from Yirangalangala higher upstream, to Waranyina and Baloganda, inside ELA 22732. There’s sacred sites all the way down that Cox River, for that top ceremony. Those two places Waranyina and Baloganda, they’re on the Cox River, on the Nathan River Pastoral Lease. Waranyina is that Pumpkin Yard plains. Baloganda is the top ceremony, that one at Eight Mile Creek. Yirangalangala is a bit lower down. There’s a big lagoon; the old station used to be there at Kalalanjunma, near Yirangalangala.
Warnabarlil, there’s three places in there. The Dreaming is that heavy ceremony, a big one. It belongs to the Emu. It’s right along the Cox River, on top, at the lagoon (Kalalanjunma). It’s for all those places: Baloganda, Yirangalangala, Kalalanjunma and Warnabarlil. That Baloganda: that’s the top ceremony. It’s coming down to those three places lower down on the river.
Warnabarlil is on the Nathan River side. Same for Baloganda and Waranyina, higher up. That’s the place we worry about, that country. They’re very important places.
If the 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. I took John Avery, of AAPA, all around that country. He’s got it in a paper in Darwin somewhere.
Mingirringgi, owners, for Yirangalangala are two little brothers at Hodgson Downs. It really belongs to Sammy Limmen and Nelson Limmen. That’s their country now. Roy Hammer is Junggayi just like me. We’re looking after that place. No one can go ahead there without us
Roy Hammer and me are Mingirringgi for Kangaroo business further over. That one starts from Hodgson Downs right through, right up to Warlalalga, Marrgarranyi, and right up to Maria Island. That’s our land. It starts a long way, way back at Elsey. It comes all the way: It comes through St Vidgeon’s. From there:
a.Guygunji; and
b.From there, Warranmilyi, on St Vidgeon’s- two springs;
c.From there, Marrgaranyi;
d.From there Wulungurliya, still on St Vidgeon’s;
e.Then it goes to that place now: Rranggawarla, north of ELA 22732;
f. and from there to Leguldu;
g. and from there to Warrurranya, outside the Alawa Land Trust, on
Nathan River station, it’s on the Cox River.
There are named sites all the way along the river on the Kangaroo track: Walabinji first, Bulumindini, and it goes down to the waterhole near Maria Lagoon, Wurrumala.
I'm Mingirringgi, and Barney is my Dalnyin. That country is mine. That Ginger Riley mob, they just hold that country, but that land there belong to my brother Cyril and me.
[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. 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 its Contentions.
The Grantee Party’s Evidence
[10] The grantee party advised in a letter by Mr Ian Wallace, Commercial and Administration Manager, dated 25 March 2002:
“ that it elected not to submit any detailed contentions. However, we wish the Deputy President to appreciate that we concur with the contentions submitted by the Northern Territory Government on 11 March 2002.
In addition to the Government’s contentions, we wish to advise that over the last twelve months we have reached access agreements for eight Exploration Licences in the Northern Territory. All of these Exploration Licences fall on land subject to Native Title.”
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] The Government party in its Statement of Contentions at [7]-[12] 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 [56]-[59] contends that:
“[56]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. The Alawa Aboriginal Land Trust lies immediately west of the licence area.
b. The Nathan River Community lies about 30 kms to the east of the licence area.
c. Cox River Community lies to the south west of the licence area.
[57] 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 Nathan River Road runs north south approximately parallel to and 30kms east of the licence area.
[58]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. The Cox River flows from south to north through the licence area. Several Tributaries flow through the licence area as well.
[59]The community and social activities of the Native Title Claim group include foraging [Land Claim Report [108], [109][128]. In the context of the Land Claim could be seen as hunting, gathering food and collecting firewood, and obtaining water; in general obtaining the means of day to day sustenance [Land Claim Report [108]]. 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 [53]-[63] said:
[6](a) the correlation between the traditional owners as identified in the Cox River (Alawa/Ngandji)Land Claim Report(1984) 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. The document is nearly twenty years old and activities then carried on may not be now.
[53]Nathan River Community and Cox River Community are contended in Paragraph [56] 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 over 30kms distant from the proposed EL area. Mr August, the deponent in this matter, resides at neither. The Alawa Land Trust is an area of land, not a community.
[54] The Alawa Aboriginal Land Trust area …allows plentiful range for the exercise of community and social activities. The Form 4 states that Alawa Aboriginal Land Trust “lies immediately west of the ELA approximately kilometre from its boundary”…However, paragraph 43 of the Objectors’ Contentions ambiguously states that the respective areas ‘adjoin’ but the mapping establishes that a ribbon of pastoral leasehold land, over [2000] metres wide separates them. Later correspondence from Mr Rumler clarifies this contention.
[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 Nathan River Community situated 30 kilometres to the east of the tenement, Cox River Community situated about the same distance to the south west of the tenement. The Government contends at [53] “The Alawa Aboriginal Land Trust is an area of land, not a community and I accept that contention.
[18] Further, I note that Mr August does not live on or near the tenement and that he deposed that “We know that people used to run there, our relations used to live there”[7] and “That Ginger Riley mob, they just hold that country, but that land there belong to my brother Cyril and myself.”[16]. The latter statement raises a real question as to whether any community and social activities conducted at the present time on the tenement are conducted by members of the native title claim group. The Land Claim Report is also relied upon by the native title party but it is a Report that is almost 20 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.
[19] I note also that the Government Party has led evidence of quite extensive previous exploration activity with eleven exploration licences granted over the area in the past, including in the last twenty years.
[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. 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.
[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 August’s affidavit and the map annexed thereto. I note that that map is obscure and deciphered only with difficulty and that it is of little or no assistance to me in locating the various sites referred to by him in his affidavit. None of the sites referred to in his affidavit have been marked on the map.
[26] The native title party also relies upon the AAPA sites information and map which indicates that there are recorded sites notated as 5967-4, 5967-52, 5967-51, 5967-50B, 5967-50A and 5967-49. None of the identified sites are located on the proposed tenement.
[27] At [68-69] of the Objectors’ contentions numerous sites of particular significance are set out and their particular significance discussed. However, there is no evidence before the Tribunal as to the exact or even approximate location of those sites, and most importantly whether they are sites located on the proposed tenement or not. For instance, the site referred to in [3] of Mr August’s affidavit and [68(a)] of the contentions, Yarrkala (Kangaroo Dreaming), is described as being ‘very close to the northern boundary of ELA 22732” and is also named as a Dreaming Track in the Land Claim Report at [53], [57-8] but its location is not specified with sufficient accuracy on any map or document before me. In these circumstances, it is not possible to infer that the site is located on the proposed tenement. Similarly, in respect of Baloganda at Eight Mile Creek referred to at [68(b)] of the contentions and Waranyuina, at Pumpkin Yard Plain referred to at [68(c)]. Finally, at [69(g)] Guygunji(Kangaroo Dreaming) is described as being on a track that comes from Elsey and St Vidgeon’s and includes nine sites. It is said that the track runs from Elsey Station near Mataranka to Maria Island in the Gulf of Carpentaria. These sites are Warranmilyi, Marrgaranyi, Wulungurliya, Rranggawaarla, Leguldu, Warrurranya, Walabinji, Bulumindini and Wurrumala. None of those sites are marked on any map before me, however I note that Elsey is located approximately 120 kilometres east of the boundary of the proposed tenement and Maria Island approximately 75 kilometres west of the boundary of the proposed tenement in the Gulf. Finally, at [69] it is contended that there are named sites all along the Cox River on the Kangaroo Track, as Mr August says at [15]. However, there is no evidence of the existence of any such site along the Cox River which is within the boundaries of the proposed tenement.
[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 at [12], the government party contends “that the grant is not likely to interfere with any areas or sites of particular significance….for the following reasons:
“(b) any such sites have the statutory protections offered by the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”). This Act applies to all of the land in the Northern Territory and provides protection for sacred sites as defined in s.3 of the Aboriginal Land Rights Act (Northern Territory) Act 1976(Commonwealth)(“the Land Rights Act”). “Sacred Site” is defined in the Land Rights Act as meaning “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition”. An area or site gains the protection of the legislation whether registered or not. Although all sacred sites would not be sites of particular significance, such definition includes any area or site of particular significance in accordance with the objector’s traditions. The protections include:
(i) Section 33 of the Sacred Sites Act provides that a person (which definition includes bodies corporate) shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the Act or the Land Rights Act. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(ii)Section 34 of the Sacred Sites Act provides that a person shall not carry out work on or use a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(iii)Section 35 of the Sacred Sites Act provides that a person shall not desecrate a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(iv) Section 37 of the Sacred Sites Act provides that a person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister’s Certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(c) Section 69 of the Land Rights Act also makes it a criminal offence to enter or remain on land in the Northern Territory that is a sacred site.
(d) Section 24 of the Mining Act relevantly provides that every exploration licence shall, unless expressly waived, varied or suspended in writing by the Minister, be granted subject to the condition that the licensee will…
“(k) not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory, otherwise than in accordance with that law.”
(e) The Second Schedule of Conditions includes conditions which specifically reduce the likelihood of interference with sites of particular significance. Conditions 1(b),3,4,12,18 and 20 are referred to as particularly relevant to paragraph 237(b) issues. The compulsory inspection of the Register of Sacred Sites and the mandatory on-site meeting with any native title holders are seen as mechanisms to significantly reduce the likelihood of interference with such sites.
(f) Also the letter of grant of the proposed licence will include endorsements specifically directing the grantee party’s attention to the provisions of the Sacred Sites Act so that, combined with other endorsements and conditions, this militates against reliance on defenses that may be mounted based on an absence of knowledge to offences under the Sacred Sites or Land Rights Acts.(This is stressed in the on-going communications with the grantees.)…….
46. The contextual risk evaluation by the Tribunal need include the following factors:
the regulatory scheme which governs the exercise of the rights under the grant(including the presumption of regularity);
the statutory scheme which protects sacred sites in the Northern Territory; and
prior and current concurrent lawful activities on the same licence area.”
[30] In this matter, the Tribunal has been presented with substantial 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 no reliable evidence that any of those sites are located within the boundaries of the proposed tenement. Mr August, whilst apparently complying with the Tribunal’s usual requirement that sites referred to be indicated on a map, has failed to indicate the location of the sites to which he refers. In those circumstances, I have attempted to ascertain from all the available evidence before me an accurate indication of those locations. I have not been able to ascertain those locations and indeed have discovered that many of the sites referred to are not in fact within the boundaries of the tenement. In those circumstances, I am not prepared to accept the bare assertions of Mr August in relation to the location of sites within the tenement.
[31] In any case, even if I am wrong in that refusal, 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.
[32] In conclusion 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 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 may exist 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 [13]-[21] 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.
[35] 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.
[36] The government party contended in reply at [77]:
“Taking into account:
The absence of evidence of major disturbance;
The overall regulatory scheme which governs the exercise of the rights under the
grant;
The additional statutory checkpoint which seeks to prevent and/or remedy
disturbances; and
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.”
[37] 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.
[38] 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]
[39] 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.
[40] 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.)
[41] 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.
[42] There is also before me in this matter evidence relied on by the government party in relation to previous mining activity on the proposed tenement. The government party’s Final Contentions at Attachment E provides a revised schedule which includes a list which shows that there have been twenty three previous exploration licences granted within the same area dating continuously from 1976 to 1972, 1984 to 1990, 1991 to 1997.
Details have been provided in relation to the some previous exploration activities that were carried out. The activities are listed as follows;
The government party has provided evidence of prior Exploration Licences granted over the same area from 1982 to 1995 and from 1991 to 1999. These are listed as EL 3495, EL3499, EL4542, 4547, 4551, 6285, 7263, EL7264, EL7301, EL7827, EL7808 and AP 2589.
Particulars of the exploration activities were provided for the following EL’s;
EL4547
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.
EL4551
Activity: Stream sediment/loam sampling
EL7263
Activity: Stream sediment/loam sampling
EL7264
Activity: Stream sediment/loam sampling
EL8708
Activity: Stream sediment/loam sampling
Ground Electro-Magnetic (“EM”) Survey.
[44] 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 22732 to BHP Minerals Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
J. E. Stuckey-Clarke
Member
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