Mr Tony Kenyon Luwanbi and Others on behalf of the Warai and Kungarakan People (Do01/147)/Agricola Gold Ltd/Northern Territory
[2002] NNTTA 207
•17 September 2002
NATIONAL NATIVE TITLE TRIBUNAL
Mr Tony Kenyon Luwanbi and Others on behalf of the Warai and Kungarakan People (DO01/147)/Agricola Gold Ltd/Northern Territory, [2002] NNTTA 207
(17 September 2002)
APPLICATION NO: DO01/147
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 applications
MR TONY KENYON LUWANBI AND OTHERS ON BEHALF OF THE WARAI, and KUNGARAKAN PEOPLE (DO01/147), (Native Title Party)
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AGRICOLA GOLD 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: 17 September 2002
Hearing dates: 4 June 2002.
Government Party: Mr Matthew Storey, 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 William Rex Jettner
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 –– 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
Angus Riley and May Foster on behalf of the Wirntiku, Milwayijarra and Ngapa Groups, DO 01/70 and 71, Deputy President Franklyn, 17 April 2002.
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002
Kathleen Parry, Albert Myoung, Paddy Huddleston and Marjorie Foster/Northern Territory/Troy Resources NL DO 01/85, Member Sosso, 12 June,2002
Victor Groves &)Ors/ Northern Territory/Exploration and Resource Development Pty Ltd, D0 01/127-9, Member Sosso, 13 September 2002.
REASONS FOR DETERMINATION
Background
[1] On 22 August 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 No 10321 (“the proposed tenement”) to Agricola Gold 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 2 blocks (7 sq km) (a block is approximately 2.9 square kilometres) within the Batchelor locality. The area of the proposed tenement is comprised of Perpetual Pastoral Lease 991(commonly known as “Mount Keppler”).
[3] On 21 December 2000 a native title determination application was filed with the Federal Court (DC01/30) (D6032/01). The name of the application is “Mount Keppler” and the applicants are Mr Tony Kenyon Luwanbi, on behalf of the Warai and Kungarakun Peoples. The application was registered on 16 February 2001. The “Mount Keppler” application, which covers a geographical area of 399.761 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 (21 December 2001) after the section 29(4) notification day (22 August 2001). Mr Tony Kenyon Luwanbi, Ms Edna Barolits, Gabriel Hazelbane Gulngarring 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 29 January 2002 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 31 January 2002 I made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. At the listings hearing on 4 June 2002, I granted the native title party leave to file further contentions and/or evidence in reply in response to a specific issue raised in [95] of the government’s contentions in reply and that the matter should proceed to determination on the papers on 10 June 2002. since, having considered the material lodged with the Tribunal, I was satisfied that I could adequately determine the matter on the papers pursuant to section 151 of the Act.
The Evidence
Objectors’ Evidence
[7] The native title party relies upon an affidavit of Mr Tony Kenyon Luwanbi of Waruk, via Humpty Doo, in the Northern Territory of Australia affirmed 26 April 2002, which is set out in full below:
I, Tony Kenyon Luwanbi of Waruk, via Humpty Doo, in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1. I am a member of the native title claim group in the Mount Keppler native title
determination application (DC01/30). I am Warai.
2. The area of the application includes the area of ELA 10321. The ELA area is all Warai
country. I can speak for that country. I have seen a map of the area of the ELA. Now produced and shown to me marked “TKL10321” is a map of the ELA and surrounding area Marked on it are some of the places referred to in this affidavit.
3. I live at Waruk, near Humpty Doo in the Northern territory. I have lived there for
over 20 years.
4. I used to walk across this country in the ELA area a long time ago when I lived at
Adelaide River, when my dad was alive. I do not know the Warai people who are using
this country now. There is not much hunting on this area – It is difficult to get to. The
McGregor’s who live in Adelaide River came and asked permission to go hunting and
fishing there. They are not Warai; they are Kungarakany.
5. Sometimes people from Adelaide River, Kungarakan Mob, come and ask me if they can
go there: Eva McGregor, Jamie McGregor and their niece, Jennifer McGregor. They
go into ELA 10321 to look for turtle, porcupine, water lily. They go in dry time during
school breaks. As far as I know, other people don’t go there.
6. The ELA area is close to Howley Creek and to the site Anborrokgarl.
7. I am worried about the impact that exploration might have on that site. I am worried
about stuff getting into the creek and going downstream. I am worried about them
killing the fish and turtle downstream.
8. My sister can talk for the site. It’s a women’s site and men have to keep away from
it. But men can go as near as the closest point to the site that is within ELA 10321.
9. It is OK for the company to explore, but they should consult me before any mining
occurs.
10. If the Exploration Company sets up camps on that country it might prevent us
accessing areas ,might mess up our country and all the creeks. The company needs to
talk to us first, because they might destroy our sites. They should talk to us before they
go anywhere.
[8] The native title party submitted the following further evidentiary material to the Tribunal:
(a)The Mataranka Land Claim Report extracts - paragraphs [7.1.1] [7.2.6].
(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”).
(h)Extracts from the Transcript in DO01/19 Paddy Huddlestone and Others/ Moffatt/NT.;
a.Transcript – site visit 15 November 2001, pages 6-10.
b.Transcript – Kybrook Farm 15 November 2001, page 28;
The AAPA material provided to the Tribunal and other parties in DO01/19 Paddy
Huddlestone and Others/Moffatt/NT.
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 a letter by Mr William Rex Jettner dated 29 May 2002;
“Re: EL10321
Please be advised that we support the contentions advanced by the Northern Territory Government with regards to the National Native Title Tribunal’s objection to inclusion in an expedited procedure for EL 10321.”
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.
Application to Dismiss the Objection Pursuant to Section 147
[14] In its contentions in reply at [95], the government party said:
“…there is evidence that an authorised representative of the native title claim group, (apparently the individual under relevant traditional law and custom authorised to speak for the country comprising the claim area)does not object to the grant of the licence. Mr Kenyon indicates he is willing to have the licence granted and exploration proceed without further consultation with him. In these circumstances the Government Party contends it is open to the Tribunal to summarily dismiss the objection pursuant to s.147. The Government Party gives notice it may make such an application at or prior to the Listing Hearing in this matter.”
[15] At the Listing Hearing on 4 June, 2002, the government party raised this issue and Mr Frith of counsel for the native title party responded:
“Member, the procedure is an objection to the inclusion of the expedited procedure statement in the section 29 notice. And the effect of the inclusion of such a statement is that there is no right to negotiate regarding this future act. The right to negotiate doesn’t necessarily mean that the native title party has to object to the future act. Looking at section 31 of the Act it provides that there can be an agreement that the act proceed or that the act occur subject to conditions. Certainly, it is not a requirement [for] an objection to the inclusion of the expedited procedure statement that there be an objection to the future act occurring at all.”
I agreed with Mr Frith at the hearing. He proceeded to file further contentions which amplified his argument. The government party however proceeded in its further written contentions to make application that the matter be dismissed as vexatious or frivolous under section 147 of the Act on the basis that Mr Kenyon’s statement in [9] of his affidavit that “it was OK for the company to explore “ was inconsistent with his maintaining an effective objection to the inclusion of the expedited procedure statement in the section 29 notice.
[16] In my view, the government party’s application cannot succeed for the reasons set out by Mr Frith at the listings hearing and in his further contentions filed 7 June 2002. Mr Kenyon’s statement in [9] must be read in the context of his affidavit as a whole, especially [7] and [10]. A fair and contextual reading of the affidavit clearly reveals an intention on Mr Kenyon’s part to object to the inclusion of the expedited procedure statement and an unwillingness on his part to have the licence granted and exploration proceed without further negotiation and consultation under the right to negotiate provisions of the Act.
Reasoning
Section 237(a) – Interference with carrying on of community or social activities
[17] The Government party in its Statement of Contentions at [32]-[33] 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.
[18] The native title party in its Contentions at [40]-[43] contends that:
“[40] 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. Mount Keppler outstation community lies approximately 20 kilometres north
west of the licence area.
b. Adelaide River Township lies approximately 10 kilometres to the west of the
licence area.
[41] There are several roads inside, and in the vicinity of the licence area.
a. A significant track runs north south through the licence area [map filed with
the contentions].
[42] There are several water bodies and other areas of environmental significance in
and around the licence area. They include:
a. Howley Creek touches and runs along the eastern boundary of the
licence area [map filed with the contentions].
b. The licence area between Adelaide River and Howley Creek. Howley
Creek flows into Margaret river further downstream.
[43] The community and social activities of the native title claim group include:
a. Hunting, fishing and gathering of bush tucker by Kungarakany people, who
have obtained permission of the Warai people to do so.
i.The McGregors, who live at Adelaide River are Kungarakany people, have asked permission to go hunting in the licence area
[ affidavit of Tony Kenyon (Luwanbi)[4]].
ii.Eva McGregor, Jamie McGregor and his granddaughter, Jennifer McGregor go hunting in the licence area, to look for turtle, porcupine and water lily. They go in dry time during school breaks [affidavit of Tony Kenyon (Luwanbi)[5]].
iii.The Mataranka Land Claim Report provides some assistance in defining the context in which foraging (which includes hunting, fishing and gathering of bush tucker) takes place [see [7.1.1][7.2.6]];
b. Teaching children about traditional law and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas or sites.
i.The McGregors go during school breaks [affidavit of Tony Kenyon
(Luwanbi )[5]].
ii.an inference can be drawn that they take school age children.
iii.Further inference can be drawn that the McGregors teach them how to carry on community or social activities.
c. The community of native title holders actively look after country, by visiting and maintaining sites. This activity is conducted by individuals with specific responsibility The sister of Tony Kenyon (Luwambi) can talk for the site Anborrokgarl[affidavit of Tony Kenyon (Luwanbi)[8]].
These activities occur over some or all of the licence area, and in its vicinity.
d. Turtle and water lily are taken from the licence area [affidavit of Tony Kenyon (Luwambi)[5]. They are found in or near water. The major water course in or near the licence area is Howley Creek. Porcupine may be taken further away from the water.
These activities occur regularly and are carried on by more than isolated numbers of members of the native title claim group:
e. The McGregors go to the licence area from Adelaide River in the dry time during school breaks[affidavit of Tony Kenyon (Luwambi) [8]].
[19] The Government party contends that the grant of the proposed licence is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land for the following reasons;
a. no aboriginal community is located within the proposed licence area;
b. Adelaide River is ten kilometres to the west of the proposed licence area. To the extent this town is relevant to the matter before the Tribunal, it is such a distance away from the proposed licence area that its grant is not likely to interfere directly with the carrying on of any community or social activities.
[20] The government party in its contentions in reply at [62-63] states;
[62] Mount Keppler Outstation and Adelaide River are contended in [40] of the objector’s contentions as relevant settlements, but it is uncertain if these 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 Mount Keppler outstation lies 20 kilometres to the north of the proposed licence area and Adelaide River, 10 kilometres to the west.
[63] There is only direct evidence provided (in the form of Mr Kenyon’s affidavit at paragraphs 4 and 5) of three residents of Adelaide River ever going to the proposed licence area and no such evidence in relation to residents of Mount Kepler Outstation. No specific evidence is provided that these three individuals are members of the native title claim group.(Mr Kenyon at paragraph 4 asserts the McGregors are Warai, one of the peoples relevant to DCO1/30, but then (at paragraph 5) suggests that they need permission to exercise native title rights that are asserted as of right in the Determination Application in DC01/30.”
[21] I note also that the Government Party in its statement of contentions has led evidence in [47-49] of quite extensive previous exploration activity with exploration licences granted over the area in the past, including in the last twenty years, which is set out in detail at [38] below.
[22] 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.”
[23] 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.”
See also Victor Groves &Ors/Northern Territory/Exploration & Resource Developments Pty Ltd D0 01/127-9, unreported, Member Sosso, 13 September 2002 at [57(i)].
[24] On the evidence before me, I find that there are community or social activities carried on on the proposed tenement but that they are not at a very intensive level. Mr Kenyon’s affidavit is essentially to the effect that his people, the Warai, do not use the land now but that the members of the Kungarakan Mob, in particular the McGregors, whom I am prepared to accept form part of the native title claim group, do occasionally for hunting and fishing only in the dry time during school breaks. I have given only slight weight to the Land Claim Report as it is 13 years old and there is no reference to the native title claim group in the paragraphs cited by the objectors in their contentions. At its very highest, the Land Claim Report refers to historical foraging activities. In conclusion, therefore, where some limited degree of contemporary community and social activities are evidenced as being presently conducted by the native title claim group on the proposed tenement as I find to be the case in this matter, it is necessary for the native title party to show that the statutory regime will not prove a sufficient protection from direct interference with those activities. In assessing the evidence before me, I take into account the restricted nature and extent of contemporary community and social activities on the tenement, the fact that no aboriginal community is situated on the tenement, the relatively small size of the tenement, the long history of mining and exploration activities on the tenement, the lack of evidence of interference with community or social activities in the past, the presumption of regularity and the comprehensive protections provided by the statutory regime in place in the Northern Territory. Weighing up all those matters, I conclude that the limited degree of community or social activities evidenced before me are not likely to be directly interfered with by the grant of the proposed tenement, taking the common sense approach to the evidence and applying the test explained by French J. in Smith v. Western Australia[2001]FCA 19 and therefore hold that no direct interference within the meaning of s.237(a) of the Act is likely.
Section 237(b) – Sites of particular significance
[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 upon Mr Kenyon’s affidavit and the map annexed thereto. Mr Kenyon fails to identify any site of particular significance that is actually located on the proposed tenement. The AAPA site information discloses no registered or recorded sites located on the proposed tenement. However, he has identified a site north east of the ELA called “Anborrokarl” at [6] and [8] of his affidavit.In its contentions, the native title party in [53] states “ The particular significance of this site identified by the evidence is:
a. Anborrokgral is a women’s site. Men have to keep away from it [affidavit of Tony Kenyon (Luwanbi) [8]]. This fact alone is sufficient to give the site particular significance. The significance of the site is identified to the Tribunal.
[28] In its contentions in reply at [75-77], the government party contends;
In Paragraph 52 of the Objectors’ contentions the existence of only one named location (Anoborrokgral) is suggested as relevant. The only direct evidence of the relevance of the location is said to be found in the affidavit of Mr Kenyon and the AAPA material. Recording of a location by the AAPA does not of itself demonstrate the location is an area or site of particular significance. Mr Kenyon deposes that this is a women’s site and he cannot talk for it. The Tribunal therefore has before it no direct evidence as to whether the location is an area or a site of particular significance.
Anborrokgral lies a kilometre distant from the proposed licence area, and on the opposite bank of the Howley Creek. Even accepting that the location is an “area or site of particular significance” (which the Government Party does not) there is no real possibility of interference with the location arising from the grant of the proposed licence.
There has been extensive exploration activity covering the whole of the proposed licence area over a period of in excess of twenty years. No evidence is provided that this activity has caused any interference with Anborrokgral.
[29] 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.
[30] In this matter, the Tribunal has been presented with contentions by the native title party that there are sites of particular significance within the meaning of s.237(b) but no evidence of any such site actually located on the proposed tenement.
[31] In those circumstances, there can be no likelihood of direct interference. Further, the Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective; indeed the evidence is to the contrary.
[32] In conclusion therefore, in light of the evidence before me, the Northern Territory statutory regime for the protection of sacred sites, and taking into account the presumption of regularity, I find that it is not likely that any areas or sites of particular significance which 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 [37]-[45] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party said at [37]-[42]:
37. In relation to s.237(c), the Government party adopts the legal principles as stated by the Tribunal in the Moses Silver Determination at paragraphs 135 to 140, subject to the application of the Mining Management Act 2001(the “MM Act”).
38. The MM Act came into operation on 1 January 2002. Environmental and safety issues have been consolidated under this new legislation, with the effect that operational management of the Northern Territory’s Substantial Disturbance regime has been removed from the Mining Act and placed under this new Act.
39. It is a condition of an exploration licence granted post-1 January 2002 that the grantee hold an Authorisation granted pursuant to s.36 of the MM Act “before carrying out on the licence area any exploration, operations or works involving substantial disturbance.”(s.166(1A) Mining Act.)
40. An application for Authorisation under s.35 MM Act requires the proposal and approval of a Mining Management Plan(“MMP”). An MMP must include:
(a) a description of the activity to be carried out;
(b) safety, health and environmental issues relevant to the activity;
(a) the management system to be implemented at the site;
(b) a plan and costing of closure activities.(s.40 MM Act.)
41 An Authorisation is subject to the condition that the operator complies with the approved MMP(s.37(2)(a)) and any additional conditions imposed(s.37(2)(b) and s.37(3)), including, usually, the requirement to lodge a security.(s.37(3)(c)).
42. Section 35 creates the offence of carrying out of activities without an Authorisation, the penalty for which…could be a fine of $25,000 for a natural person and [$125,000] for a body- corporate offender….
[35] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[36] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)
[37] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.
[38] There is also before me in this matter evidence relied on by the government party in relation to the following exploration licences having been granted over the area of the tenement. These are EL1656, EL3144, EL5312, EL5321, EL5621, EL7065, EL7205, EL8181, EL8369 and EL8578 from 1981-1998. The activities covered a large area of the proposed tenement and included;
EL1656 Activity: Rock chip sampling involved;
(i) the collection of rock chip from outcrop(1-2kg); and
(ii) laboratory 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 mineral content.
Stream sediment sampling involved:(i)the collection of sediment sample (5kg) from a suitable trap site within the
drainage;
(ii) onsite screening of the sample to collect a particular size fraction; and
(iii) laboratory processing/ analysis of the sample for mineral content.
Percussion drilling involved:(i) preparation of the 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.
EL5312, EL5621, Activity: Soil sampling
Stream sediment sampling
Rock chip sampling
EL5321 Activity : Percussion drilling
EL7065 Activity: Soil sampling
Stream Sediment sampling.
EL7205 Activity: Rock Chip sampling;
EL8181 Activity Rock Chip sampling
Rotary Airblast (‘RAB’) drilling involved:(i) 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.
Percussion drilling
Costean sampling.
[39] Having concluded like Member Sosso did in Moses Silver, even before the regime was further strengthened by the Mining Management Act provisions, that the government party standard exhibit before me “highlights that the Northern Territory has in place a well advanced, integrated and proactive legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process”, and having considered the evidence of previous exploration activity, the fact that the area of the proposed tenement is only a very small area of the land and the fact that the native title party has led no evidence as to any major disturbance occasioned by such activity in the past, 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 10321 to Agricola Gold Ltd is an act which attracts the expedited procedure under the Native Title Act 1993(Cth).
J.E. Stuckey-Clarke
Member
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