Northern Territory of Australia/April Bright, Pavalina Henwood & Ann Majar (Mak Mak, Maranunggu & Werat)/BHP Billiton Minerals Pty Ltd
[2003] NNTTA 48
•17 March 2003
NATIONAL NATIVE TITLE TRIBUNAL
Northern Territory of Australia/April Bright, Pavalina Henwood & Ann Majar (Mak Mak, Maranunggu & Werat)/BHP Billiton Minerals Pty Ltd, [2003] NNTTA 48 (17 March 2003)
APPLICATION NO: DO02/62
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
April Bright, Pavalina Henwood and Ann Majar on behalf of the Mak Mak, Maranunggu and Werat Peoples (Native Title Party)
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BHP Billiton 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: Darwin
Date: 17 March 2003
Hearing dates: 21 November 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: 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 –– 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 6 March 2002, the Northern Territory (“the government party”) gave notice pursuant to section 29 of the Native Title Act (“the Act”) that it proposed to grant Exploration Licence No 23146 (“the proposed tenement”) to BHP Billiton 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 56 blocks (185 sq km) (a block is approximately 2.9 square kilometres) within the Reynolds River locality. The area of the proposed tenement is comprised of Perpetual Pastoral Lease 1086 (commonly known as “Labelle downs”), Perpetual pastoral Lease 1006 (commonly known as “Litchfield”) and, Perpetual Pastoral Lease 1087 (commonly known as “Welltree”).
[3] On 12 March 2002 a native title determination application was filed with the Federal Court (DC02/3) (D6004/02). The name of the application is “Welltree” and the applicants are Ms Pavalina Henwood, Ms Ann Majar on behalf of the Mak Mak, Maranunggu and Werat Peoples. The application was registered on 12 April 2002. The “Welltree” application covers a geographical area of 270.017 sq km, and the area of the proposed tenement is located wholly within the application area.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (28 February 2002) after the section 29(4) notification day (31 October2001). 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 12 July 2002 Deputy President Sumner made directions in relation to the inquiry and on 1 October 2002, acting in his capacity as delegate of the President of the Tribunal, he appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry. A Listing Hearing was held on 21 November 2002. After consideration of the materials provided by the parties to the Tribunal, I was satisfied that the matter could be adequately determined on the papers pursuant to s.151 of the Act.
The Evidence
Objectors’ Evidence
[6] The native title party relies upon an affidavit of Ms Ann Majar, of Woodroffe in the Northern Territory of Australia affirmed 28 October 2002, which is set out in full below:
‘ I, ANN MAJAR of 19 Castor St, Woodroffe in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1. I am an applicant and a member of the native title claim group in the Welltree native title determination application (DC 02/03). I am Werat.
2. The area of the application includes the area of the ELA 23146. I have seen a map of the area of the ELA. Now produced and shown to me marked “AM 23146” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. The ELA is partly on Welltree, partly on Labelle, and partly on Litchfield. Labelle Outstation is in the northern part of the ELA. The Reynolds River runs through the northern part of the ELA. There are lots of billabongs near the river. There is black soil country near the river.
4. Labelle Downs is my country and the Reynolds. I can talk for that country in the ELA. Before the Station was there, when I was a little girl, I went down there to the Daly. I have not been able to go on since Peter Camm has been there.
5. We use English and language: Werat, Marununggu, Marithiel. My language is Werat. I know the words for turtle, tucker, goanna and goose. I am teaching language.
6. There is a track north of the ELA area, from Litchfield Park Road to Labelle Outstation. There is a community, Mungalimba, where the track crosses McCallum Creek on the Delissaville/Wagait/Larrakia Land Trust area. We used to go through the gate onto Labelle from the Land Trust area, and through the Homestead, through the Homestead yard, down to the Reynolds River. I did it in 1997, 1998, 1999, 2000, until the end of 2001, when the new fellow came in.
7. Labelle has got a new manager. He has only been there this year. He stops some people going on to Labelle. We are trying to fix up the access issue. This is the only road in to Channel Point and Balgul community. It is a private road. The people from Balgul are having a hassle getting through Labelle to their community.
8. Henry Townsend owned Labelle. He put the road in. Henry sold Labelle to Peter Camm. Peter Camm is living at Labelle Outstation. Part of his access road is on the Land Trust area. He dug a trench and is destroying a Dreaming track – King Brown and Death Adder.
9. There is a different manager at Welltree to the one at Labelle. We can go on there. The Wangi mob has a problem with people going in. They locked the gates.
10. I go and check up on my country once a week. I stay there every year during the school holidays. In April and May I usually go to Bob’s Knob and Murranja and Nowgli, to the west and north west of the ELA, hunting for turtle. Before, we told the manager and it was OK. Now, there is a new manager.
11. McKeddies is a billabong on the north eastern boundary of the ELA. Kunadawol is there. We go there every weekend from the end of the wet into the dry: from April until July. We always have gone on weekends, from Friday to Sunday. I take my daughter and her two kids. I’ve got six grandchildren. If they’ve got a vehicle, they all come along. My sister Daisy goes there too, very often, on her own, or with her husband, Tom, her son, Glenn, and her three grandchildren. Daisy lives at Woolaning, about fifteen kilometres north north east of the ELA. She owns the Drovers’ Rest kiosk near Petheridge Rainforest. She goes to McKeddies just for the day. We want access there too. They won’t let us on.
12. It is wet country in the northern part of ELA. We drive in; we don’t walk. There is black soil there. If it is too wet, we can’t get in. We’d get bogged to the axle. It is all swamp. It is under water in the wet, even the road. We get tucker there. Water lily stem is good for high blood pressure. There are two kinds of cheeky yam. One you put in running water for three weeks; peel the skin; bake it; put it on paperbark or green plum leaves; and cook it on coals. It is like flour.
13. There are heaps of Xamia Palm at Woolaning. We eat the nut. You have to wait until the dry to eat them. If you eat green ones you get diarrhoea.
14. In the early wet, we look for bush fruit. We go hunting into Litchfield Station, where the southern part of the ELA is. We get goanna, lily pad, sweet potato and wild banana – it starts to fruit in April. I tell stories to the kids. We go to Pundurung on the Reynolds River.
15. Pundurung on the Reynolds in my Dreaming area, Sleepy Cod. It is my conception site. I was born at Coomallie Creek, near Batchelor, which is just outside the eastern boundary of the ELA. My dad and mum used to have a big camp there.
16. Litchfield Station is Malak Malak country; we share it with them. We can go hunting there. I call them, and they take me in June and July. When I was six or seven, we camped near where Petherick’s saw mill, back towards Litchfield. There is quicksand there.
17. There are Dreaming Sites near the ELA area. There Dreaming Sites all have ‘eyes’; pools of spring water, watching the country. They can see if there are strangers on the country, and can cause them to get sick if they are not properly introduced to the country. Bob’s Knob, Murrenja, Nowgli, west of the ELA area, and the end of Mt John on area E3 on the Wagait Land Trust all have eyes. All these sites are connected to each other and are in touch with each other, and if none of them recognise the stranger, the stranger is in danger of getting sick. We have to put water on the head of strangers, and talk to the eyes in language.
18. There is one at Collins Creek, Flagon Creek, and at McCallum Creek near Patj Patj, where the Mungalimba outstation is. They are not supposed to be touched. There’s one at Twin Hills too.
19. I will worry if the company goes out by itself. There are poison places like Bob’s Knob and Murrenja. They are eyes for Mount John, at the top of Murrenja, north west of the ELA, on the Land Trust area. There is a track from Woolaning to Patj Patj to Didjini Nalgal. It sends out a cloud, which goes in a straight line from place to place. If the other Dreaming places don’t agree, they close them up at Mount John.
20. Kunadawol is a White Owl at McKeddies. It is a poison place. There is a white rock there that goes straight down to the water. The Owl gives them warning. The old people said not to touch that rock. The Owl looks after the Dreaming. It is very sacred. There was a boat ramp there.
21. There is a Pulipuli track to Mount Tollmer at Wangi, east of the ELA. When I was a little girl, about 7-8 years old, the Rainbow Snake, called Pulipuli, came up the Reynolds River. From south of Bob’s Knob it went north right up to the Wangi Falls towards Litchfield. It went through the ELA area. The country was all burnt where it passed through and the banks of the river caved in. There was a fire burning the pandanus.
22. My mother and father used to tell me about the places I should avoid because they are dangerous. They said “don’t go to this place; you might get sick”. They told me where I can fish and where I can’t fish. There are some really important areas, which I have not even shown to my husband Alan, because they are too secret. I have showed them to my kids.
23. When I go out there, I teach the kids stories about Dreaming places there, after we come back from hunting. I tell them things like what the water lily root means; what to hunt and what not to hunt; which trees not to touch; which roots not to pick up; and about poison places there and at Mount John. I tell them where they can go and where they can’t go.
24. If I take visitors onto this country they have to be introduced to the country. I have to talk to the country in language, and wash their heads with water mixed with the sweat of countrymen. Then they can go and get turtle. Europeans have got to take one of us with them. Newcomers only have to have this done once, but it might take about three or four years for the country to get used to them. I would have to do this for you if you visited the country.
25. Minerals exploration happened at Mungalimba in the 70s and 80s. It destroyed a lot of fish: catfish, archer fish, and turtle. There is a site at Patj Patj. Now you are lucky to get barramundi; you only get them in a big flood. They started digging it up and washed ore in sluice. The water got away into the creek and killed the fish. Now there is no decent water and the bore is dry. It is on the Land Trust area.
26. I have stopped exploration at Flagon Creek in the Land Trust area. I told Mike Stokes of the mining company not to let it go ahead. We can tell them not to explore or mine there.
27. I want to talk to the mining company before they start exploration.
28. I don’t like me or them stepping on the places. If anyone tampers with those places, the spirits will some (sic) down on us. Like at a Taipan place; my son nearly got bitten. That was on the Land Trust area, a kilometre from the community at McCallum Creek.
29. I don’t like them chipping rocks and taking samples.
[7] The native title party submitted the following further evidentiary material to the Tribunal:
(a)The Finniss River Land Claim Report published in 1981(the Finniss Land Claim Report) of the Commissioner appointed under the Aboriginal land Rights (Northern Territory) Act 1976 (Commonwealth) (Land Rights Act).
(b)The Daly River (Malak Malak) Land Claim Report, published in 1981 (“the Daly Land Claim Report”), of the Commissioner appointed under the Land Rights Act.
(c)Paragraphs [7.1.1.]-[7.2.6] of the Mataranka Land Claim
(d)A document entitled “Rights conferred under exploration licence” which is in the nature of contentions.
(e)A document entitled “Analysis of Legislation dealing with significant areas and sites” which is in the nature of contentions.
(f)A document entitled “Exploration Activities” annexed to the affidavit of Mark Frederick Foy.
(g)The Transcript of the evidence of Mark Frederick Foy given on 4 December 2001 (the Foy transcript
(h)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001.
The Transcript of the evidence of Jeffery John Wilson Stead given on 3 December 2001 (the Stead transcript).
(j)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;
(k)The AAPA material provided to the Tribunal and other parties in DO01/19 Paddy
Huddlestone and Others/Moffatt/NT.
The Government Party’s Evidence
[8] 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 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
[9] The grantee party relies upon an affidavit of Mr Ian Charles Wallace, Commercial and Administration Manager for BHP Billiton Minerals Pty Ltd, affirmed 6 November 2002, which is set out in full below:
‘I, Ian Charles Wallace, Commercial and Administration Manager, BHP Billiton Minerals Pty Ltd of Level 3, QCL House, 20 McDougall Street, Milton, Brisbane in the State of Queensland, wish to confirm that BHP Billiton concur with the contentions submitted by the Northern Territory Government on 24 October 2002.
I also wish to advise that prior to commencing any field exploration, BHP Billiton Minerals Pty Ltd undertakes to meet with the Native Title Claimant Group to:
a) Be introduced to Country.
b) Give extensive details about our proposed exploration programme.
c) Confirm that our programme will “work around” any community or social activities so as not to interfere with them.
d) Confirm that our programme will not interfere with any sites of particular significance.
e) Confirm that no major disturbance of land or waters will be undertaken during our programme.
f) Confirm that all applicable laws will be followed throughout our exploration activities.
To demonstrate BHP Billiton’s commitment to fulfilling the above undertaking, we have in the last two years entered into a number of Agreement with various Aboriginal and Native Title Claimant Groups in the Northern Territory, Western Australia and Queensland that capture the points above. Each of these Agreements are subject to confidentiality provisions and accordingly, cannot be provided with these contentions. However, the existence of a number of these Agreements is a matter of public record.’
The Parties’ Contentions
[10] 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
[11] 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.”
[12] 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], [86-107] and [135-140] 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
[13] The Government party in its Statement of Contentions at [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.
[14] The native title party in its Contentions at [62]-[66] contends that there are several communities in or in the vicinity of the licence area, which are occupied by members of the native title group. The contentions are set out in full below:
a. Mungalimba, on the Delissaville/Wagait/Larrakia Land trust area, where the track from Litchfield Park Road to Labelle Outstation crosses McCallum Creek [affidavit of Ann Majar [6]].
b. Woolaning is about 15 kilometres east north east of the licence area [affidavit of Ann Majar[11]].
c. The area subject of the Delassiville/ Wagait/Larrakia Aboriginal Land Trust. This is an area of Aboriginal freehold to the whole of which members of the native title claim group have unrestricted access. It provides access close to the licence area [ affidavit of Ann Majar [6]].
[63] Labelle Outstation is inside the northern part of the ELA. No members of the native title claim group live there.
[64] There are several roads inside and in the vicinity of the licence area:
a. Labelle Downs Road travels west from Woolaning to Labelle Outstation (inside the northern part of the ELA), through the ELA and on to Channel Point and Balgul communities. Balgul is approximately 40 kilometres west of the ELA..
b. A number of tracks radiate through the ELA from Welltree Station Homestead, which is just outside the eastern boundary of the ELA. One goes south to Litchfield Road south of the ELA. Another goes to the north, north- west, across the Reynolds River to Labelle Outstation.c. A number of tracks radiate from Labelle Outstation within the ELA area.
d. A track enters the south eastern corner of the ELA.
[65] There are several water bodies and other area of environmental significance in and around the
licence area. They are;
a. The Reynolds River and its numerous tributaries and associated lakes and billabongs cover much of the northern part of the ELA area.
b. Overflow Creek and Glass River Swamp are situated in the south of the ELA.
c. The Daly River is south of the ELA.
[66] The community or social activities of the native title claim group include;
a. Foraging [Daly Land Claim Report] [191]; Finniss Land Claim Report [193];[212]]. The manner in which foraging occurs, together with the importance of this activity is set out at [7.1.1] – [7.2.6] of the Mataranka Land Claim Report;
b. Hunting, Fishing and Gathering of Bush Tucker [affidavit of Ann Majar [10]-[14],[16],[23]]. 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];
c. Teaching children about traditional laws and customs, the techniques of conducting hunting, fishing and gathering and other activities and the significance of areas or sites [affidavit of Ann Majar[5], [23]].
d. Camping at McKeddie’s Billabong [affidavit of Ann Majar [11]].
e. The community of native title holders actively look after country, by visiting and maintaining sites [affidavit of Ann Majar [22]]. 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.
f. Ann Majar checks up on her country once a week [ affidavit of Ann Majar [10]].
g. Ann Majar went down to the Reynolds River every year from 1997 to9 the end of 2001, when a new manager came to Labelle Downs station [ affidavit of Ann Majar[6]].
h. Ann’s sister Daisy, goes to McKeddie’s Billabong on the licence area [affidavit of Ann Majar [10]].
i. Many of the activities on the licence area involve water, including fishing for turtle and collecting water lily stems. Much of the northern part of the licence area is covered by water. An inference can be drawn that these water based activities take place in the wet areas of the licence area.
These activities occur regularly and are carried on by more than isolated numbers of members of the native title claim group.
j. Ann Majar checks up on her country once a week. She stays there every year during the school holidays [affidavit of Ann Majar [10]]. She goes every weekend from the end of the wet into the dry, with her daughter and her kids [affidavit of Ann Majar [11]].
k. Ann Majar went down to the Reynolds River every year from 1997 to the end of 2001, when a new manager came on to Labelle Downs station and stopped people using the road [affidavit of Ann Majar[6]]. Active steps are being taken to try to fix up the access issue[affidavit of Ann Majar [7]].
l. Ann’s sister Daisy, goes to McKeddies Billabong on the licence area very often with her husband, her children and her grandchildren [affidavit of Ann Majar[11]].
[15] The Government party contends at [8] 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; and
b. two aboriginal communities are nominated in Attachment A of the Form 4 – Woolaning (15 kilometres east-north-east) and Bugul (38-40 kilometres west). These communities/settlements are 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.
[16] The government party in its contentions in reply at [62-65] stated that:
[62] The settlements of Mungalimba and Woolaning are contended by the Objectors as being relevant communities of native title holders, yet the only evidence led of any member of the relevant native title claim group residing in these communities is that of the sister of Ann Majar lives at Woolaning. Ann Majar herself lives in Woodroffe, a suburb of the City of Palmerston, which is approximately 19 kilometres south of Darwin.
[63] It would require a double inference to conclude, without evidence, that the presence of a settlement 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.
[64] There is an issue of relevance and also of particularity with Paragraph 64. If the Objectors are asking the Tribunal to conclude that the potential use by the Grantee of the Labelle Downs Road (and a number of unmade tracks) is an interference directly with thew carrying on of the claimed activities, it is an insubstantial impact, bordering on the trivial. Trivial impacts are not within the scope of s.237 (per French J in Derrick Smith v WA[1] at [26]. Any number of other users, Aboriginal and Non-Aboriginal, can utilise these roads and unsealed tracks and any of them could potentially cut up unsealed surfaces. Such damage is unlikely to be caused by exploration activities as it would usually occur in the wet season after the exploration field season in the Northern Territory has concluded; see Foy transcript of 4 December 2001 at page 39.
[65] As to paragraph 65, the existence of water bodies and the assertion of their use by the Objectors does not lead to a logical inference that the grant of the proposed exploration licence will cause an interference with these activities.
[1] (2001) 108 FCR 442, [2001] FCA 19.
[17] I note also that the Government Party in its statement of contentions has led evidence in [21-22] of quite extensive current and previous exploration activity with exploration licences granted over the area in the past, including in the last twenty four years, which is set out in detail at [35] below.
[18] 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.”
[19] 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)].
[20] On the evidence before me, I find that there are certain community or social activities carried on on the proposed tenement. I have given only slight weight to the two Land Claim Reports said by the Objectors to provide direct evidence of current community and social activities on the proposed tenement as they are both 22 years old. I do however note that there is reference to the native title claim group cited by the objectors in their contentions. At [44-52] the Objectors say:
The particular findings in the Finniss River Land Claim Report
44. The area subject to the Finniss Land Claim Report is in the vicinity of the licence area. The Licence area is about 30 kilometres to the south of the area that was the subject of Area 1 of the Finniss River Land Claim Report, the Gurudju Aboriginal Land Trust Area[Pastoral Map;filed with these contentions].
45. There is substantial overlap between the membership of the native title claim group and those people found to be traditional owners by the Land Commissioner.
46. The native title claim group represented by the objectors includes;
a. The Mak Mak Maranunggu claimant group [ScheduleA[4] native title application], who were found to be the traditional owners of Area 1 in the Land Claim, described as the Maranunggu [see[114], [194], & [243]].
47. The evidence, that was before the Land Commissioner is referred to in the Land Claim Report, that is of particular relevance to this inquiry, includes;
a. Several people identifiable as members of the native title claim group carried on activities on areas of land or waters on the Wagait Reserve to the north of the native title claim area([187] & [188]).
48. The commissioner made relevant findings about the claimants in and the area subject to, the Land Claim, as follows;
a. The commissioner found that Maranunggu were traditional owners for Area 1 of the area claimed in the Land Claim [194].
b. The Maranunggu had a right to forage in respect of Area 1 [193], and in respect of the south west corner of Area 2 [212].
c. The Maranunggu had for some time occupied the eastern part of the Wagait Reserve and had moved around not only that land but country to the north, east and south of the Reserve [114]. This country included Area 1 in the Land Claim and also of land and waters subject to the native title application.
The particular findings in the Daly Land Claim Report
49. The area subject of the Daly Land Claim Report is in the vicinity of the licence area. The licence area is only 18 kilometres to the north of the area that was the subject of the Daly River( Malak Malak ) Land Claim Report under the Land Rights Act, the Malak Malak Aboriginal Land Trust [Pastoral Map; map filed with these contentions].
50. There is substantial overlap between the membership of the native title and those people found to be traditional Aboriginal owners by the Land Commissioner in the Daly Land Claim Report.
51. The native title claim group represented by the Objectors includes;
a. Nugget Majar [ScheduleA [5(a)] native title application], who was found to be a member of local descent group 12 in the Land Claim [178],
b. Ann Majar, a daughter of Nugget Majar [ applicant in the native title application ; see Schedule A ];and,
52. The Commissioner made relevant findings about the claimants in, and the area subject to, the
Land Claim, as follows;a. The claimants have the right to forage over the claim area [191].
[21] At its very highest, the Land Claim Reports 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 identified members of one family belonging to 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 history of mining and exploration activities on and in the vicinity of the tenement, the lack of evidence of interference with community or social activities in the past, undertaking (c) of the affidavit of Mr Wallace filed by the grantee party 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
[22] 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.
[23] 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].
[24] The native title party relies upon Ms Majar’s Affidavit and the map annexed thereto. The AAPA site information discloses 14 registered or recorded sites located on the proposed tenement. It also shows the location of sites Ms Majar has identified west of the ELA called Nowgli, Bob’s Knob and Murrenja at [10],[17] & [19] of her affidavit. Ms Majar’s affidavit also mentions Kunadawol at McKeddie’s Billabong at [11] & [20]. However, there is no indication on the map provided by Ms Majar with her affidavit, as to the location of the sites on the proposed tenement.
[25] In its contentions, the native title party in [78-81] states there are areas or sites of particular significance that the grant of the exploration licence is likely to interfere with:
a. Kunadawol is at McKeddies Billabong at the southwest corner of the licence area. There is a white rock there that goes straight down to the water [affidavit of Ann Majar[20], [11]].
b. There is Pulipuli track up the Reynolds River from south of Bob’s Knob, west of the licence area, to Mount Tolmer at Wangi, east of the licence area[affidavit of Ann Majar[21]].
c. There is a dreaming track from Woolaning, north east of the licence area, to patj Patj, near McCallum Creek where the Mungalimba outstation is, to Didjini Nalgal [affidavit of Ann Majar[19],[18]].
d. There are related dreaming sites [affidavit of Ann Majar [17], [18]];i.near the ELA area at Bob’s Knob, Murrenja and Nowgli (west of the licence area; and
ii.at the end of Mount John on the Wagait Aboriginal Land Trust area;
iii.at Collins Creek, Flagon Creek and at McCallum Creek near Patj Patj where Mungalimba outstation is ; and
iv.at Twin Hills.
The particular significance of these sites identified by the evidence is:
a. Kunadawol is a white Owl Dreaming. It is a poison place. The Owl gives them warning. The old people said not to touch the rock that is there. The Owl looks after the Dreaming. It is very sacred [affidavit of Ann Majar [20]].
[26] In its contentions in reply at [10-11], the government party contends;
“Attachment A of the Form 4 that there are 16 AAPA recorded or registered sites on the proposed licence area ( or within 100 metres of the boundary, and a further 33 sites within ten kilometres of the proposed licence area. . The nearest contended site is over four kilometres distant.
The Government party contends that, given the protective site regime in place in the Northern Territory, the grant of the proposed licence is not likely to interfere with any area or site of particular significance, in accordance with their traditions, to the persons who are the holders of the native title in relation to land or waters concerned.’
[27] 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.
[28] 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) actually located on the proposed tenement. In those circumstances, it is necessary to assess the likelihood of direct interference.
[29] As I have pointed out in other objection inquiries, 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.
[30] 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 undertakings (d) and (f) given by Mr Wallace in his affidavit filed in this inquiry on behalf of the grantee party, 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
[31] 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].
[32] The government party contended at [12]-[20] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party said at [12]-[17]:
12. In relation to s.237(c), the Government party adopts the legal principles as stated by the Tribunal in the Moses Silver Determination at paragraphs 135 to 140, subject to the application of the Mining Management Act 2001(the “MM Act”).
13. The MM Act came into operation on 1 January 2002. Environmental and safety issues have been consolidated under this new legislation, with the effect that operational management of the Northern Territory’s Substantial Disturbance regime has been removed from the Mining Act and placed under this new Act.
14. It is a condition of an exploration licence granted post 1 January 2002 that the grantee hold an Authorisation granted pursuant to s.36 of the MM Act “before carrying out on the licence area any exploration, operations or works involving substantial disturbance.”(s.166(1A) Mining Act.)
15. An application for Authorisation under s.35 MM Act requires the proposal and approval of a Mining Management Plan(“MMP”). An MMP must include:
(a) a description of the activity to be carried out;
(b) safety, health and environmental issues relevant to the activity;
(a) the management system to be implemented at the site;
(b) a plan and costing of closure activities.(s.40 MM Act.)
16 An Authorisation is subject to the condition that the operator complies with the approved MMP(s.37(2)(a)) and any additional conditions imposed(s.37(2)(b) and s.37(3)), including, usually, the requirement to lodge a security.(s.37(3)(c)).
17. Section 35 creates the offence of carrying out of activities without an Authorisation, the penalty for which…could be a fine of $25,000 for a natural person and [$125,000] for a body- corporate offender….
[33] 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.
[34] 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.)
[35] 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.
[36] Details of Prior Mining Tenements over the same area between 1972 and 1997. However, the party did not provide any details of the activities undertaken. These are;
EL71, EL1356, EL1408, EL1731, EL2562, EL3101, EL3188, EL3210, EL6651, EL6652, EL7086 and EL9507. There were also three Authority to Prospect granted between 1967 and 1968.
[37] 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 and undertakings (e) and (f) given by Mr Wallace in his affidavit filed for the grantee party, 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 23146 to BHP Billiton Minerals Pty 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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