Northern Territory of Australia/Gabriel Hazelbane & Ors (Wagiman, Warai, Jawoyn)/Robert Lorenz Fisher and Robert Joseph Stroud
[2003] NNTTA 55
•25 March 2003
NATIONAL NATIVE TITLE TRIBUNAL
Northern Territory of Australia/Gabriel Hazelbane & Ors (Wagiman, Warai, Jawoyn)/Robert Lorenz Fisher and Robert Joseph Stroud [2003] NNTTA 55 (25 March 2003)
APPLICATION NO: DO02/34
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
Gabriel Hazelbane and Ors on behalf of the Wagiman, Warai and Jawoyn Peoples (Native Title Party)
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Robert Lorenz Fisher and Robert Joseph Stroud (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: 25 March 2003
Hearing dates: 9 July 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: Robert Lorenz Fisher and Robert Joseph Stroud
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 31 October 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 22147 (“the proposed tenement”) to Robert Lorenz Fisher and Robert Joseph Stroud (“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 Pine Creek locality. The area of the proposed tenement is comprised of Pastoral Lease 815 (commonly known as “Mary River West”).
[3] On 1 February 2001 a native title determination application was filed with the Federal Court (DC01/6) (D6006/01). The name of the application is “Mary River West” and the applicants are Gabriel Hazelbane, Lenny Liddy, Paddy Huddleston, Robert Patrick Markham and Tony Kenyon on behalf of Wagiman, Warai and Jawoyn Peoples. The application was registered on 1 March 2001. The “Mary River West” application covers a geographical area of 1107.68 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 October 2001). 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 11 March 2002 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed Deputy President Franklyn QC to constitute the Tribunal for the purpose of this expedited procedure inquiry. On 11 March 2002 Member Franklyn made directions in relation to the inquiry.
[6] On 18 July 2002, having considered the material lodged with the Tribunal, the Member was satisfied that the matter could be adequately determined on the papers pursuant to section 151 of the Act.
[7] On 21 November 2002, Deputy President Sumner appointed me to constitute the Tribunal for the purposes of the Inquiry. I have reviewed the material provided by the parties and I am satisfied that I am able to adequately determine the matter on the papers pursuant to s151 of the NTA.
The Evidence
Objectors’ Evidence
[8] The native title party relies upon an affidavit of Mr Joe Huddleston of Kybrook Farm, in the Northern Territory of Australia affirmed 24 June 2002, which is set out in full below:
I Joe Huddleston of Kybrook Farm, 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 Mary River West native title
determination application (DC01/06). I am Wagiman. Paddy and George Huddlestone are my brothers.
2.The area of the application includes the area of ELA 22147. I have seen a map of the
area of the ELA. Now produced and shown to me marked “JH-22147” is a map of the ELA and surrounding area. That area is Wagiman country. Wagiman country goes north to the old railway line, north of ELA 22147. I can speak to the Tribunal about the area of land and waters covered by the ELA. But for decisions about that country, you have to speak to all the Wagiman.
3.I live at Kybrook, near Pine Creek, in the Northern Territory. The area of ELA 22147
is north of the Stuart Highway north west of Emerald Springs. It is about 40 kilometres from Kybrook.
4.The ELA area is next to, and to the west of ELA 10172. I gave evidence to Professor
Williamson of the Tribunal at Kybrook Farm on 16 April 2002 in Tribunal matter DO1/62 about ELA 10172. Bob Fisher and Bob Stroud want that exploration licence too. I gave evidence with Paddy Huddlestone and Lenny Liddy, but I did most of the talking about Wagiman community or social activities on the area of ELA 10172.
5.Now produced and shown to me marked “JH-T10172” are pages 34-37, 53-56, & 67-69 of the transcript of evidence in matter DO01/62 concerning an expedited procedure inquiry into the grant of ELA 10172. I have had those parts of the transcript read to me. They say what Wagiman do on the area of ELA 10172. I confirm that the transcript accurately says what I said.
6.I confirm that what I said to the Tribunal about the way we go hunting in the wet and in the dry is true. What I said about hunting also applies to the area of ELA 22147. There are no fishing areas in the area of ELA 22147.
7.In the wet, we drive up the highway or along the old railway line in two cars. We park them, and, leaving one car, walk through the bush, including the area of ELA 22147, back to the other car. While we are walking we hunt for kangaroos, porcupine. We use guns; sometimes, we use a spear. All up, there are 8 or 9 married men, and some boys. Meantime, we leave the women at the fishing area, which is outside this ELA area.
8.We take our kids and our grandchildren and show them how to hunt all through the area. I do that so when I’m gone, they’ll know how to hunt, and how to look after our country.
9.We go hunting in the dry season as well. We get kangaroos, porcupine and bush tucker - green plum, bush potato, water yam, sugar bag.
10.Just Wagiman go hunting there: other people can’t get tucker. We talk to that country in Wagiman we tell that country what we are doing there. The country can smell us and knows us. You got to talk to that country in language.
11.No dreaming site there.
12.If white fella not introduced to country he get lost there he get sick there. We want to introduce the white man to the country in our language so he doesn’t get sick. Maybe we get into trouble from the old people who passed away – spirits - for letting other people go there without being introduced there proper. Spirits of the old people stay on that country that’s where they go. Old people died in that country and their skin gets into the dust of that country.
13.If white fella go there and damage country maybe they damage the water. Maybe the country will punish the miners for damaging the country. They should take Wagiman people with them tell them where they can go. OK for white fella to go there but have to talk to us first and we show them where they can go and where they can’t go. White man can’t take soil from there without talking to all the Wagiman first. We show them where they can take it.
14.That mining company should come and talk to Wagiman for that country.
15.There is a site 2 or 3 kilometres west of the ELA called Lagulin (AAPA site 5270-36). It is red-eye pigeon dreaming site. I worry that mining company damage the water the creeks that go to that Lagulin from that ELA.
16.I teach my grandchildren about our heritage. I tell them about Lagulin.
[9] 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 copy of the Transcript of Evidence (uncorrected) taken at the on Country Hearing in DO01/62 on 16-17 April 2002.
(c)A document entitled “Rights conferred under an exploration licence”.
(d)A document entitled “Analysis of Legislation dealing with significant areas and sites”.
(e)A document entitled “Exploration Activities” annexed to the affidavit of Mark Frederick Foy. This document is relied upon as a statement of expert opinion.
(f)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.
(g)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001. This affidavit is relied upon as a statement of expert opinion.
(h)The transcript of the evidence of Jeffrey John Wilson Stead given on 3 December 2001 (“the Stead transcript”).
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”).
(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
[10] 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
[11] The grantee party provided the Tribunal with a Statement of Character and Contentions dated 30 June 2002 as follows;
Bob Fisher of Hayes Creek and Bob Stroud of Darwin have been associated in mining interests in the Pine Creek/Adelaide River areas of the Northern Territory for many years. We have held and currently hold various mining leases in the general locality and within the above EL Application area. We have previously operated small scale mining and exploration for a number of years in this area and have demonstrated an excellent record in meeting all the requirements of the NT Mining Act, the Mines Dept and all Government regulations both NT and Federally. I fully understand the environmental impact of mining and we have exceeded all requirements in relation to rehabilitation and will continue to demonstrate a good relationship with all those involved and associated with the area
.
We fully support the NT Government’s “Dept of Business, Industry and Resource Development” Contentions as outlined in their document DO02/34 – ELA 22147 June 2002 Group 29.
The Parties’ Contentions
[12] 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
[13] 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.”
[14] 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
[15] The Government party in its Statement of Contentions at [7]-[8] set out its submissions as to the proper construction of section 237(a) with which I agree. I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.
[16] The native title party in its Contentions at [41]-[44] contends that:
[41] There are several communities in or in the vicinity of the licence area, which are occupied by members of the native title claim group. They include;
a. Pine Creek lies to the south of the licence area, along the Stuart Highway.
b. Kybrook Farm lies to the south of Pine creek.
[42]. There are several roads inside and in the vicinity of the licence area.
a. Grove Hill Road comes within 9 kilometres of the northern boundary of the licence area.
b. The Stuart Highway passes within 3 kilometres of the southern boundary of the licence area.
c. A road linking the Stuart Highway and the Grove Hill Road runs roughly north south about four kilometres to the west of the licence area.
[43]. There are several water bodies and other areas of environmental significance in and around the licence area [map filed with contentions]. They include:
a. A small creek system flows through the licence area, which ultimately drains into larger creeks that feed the Mary River system.
b. The licence area covers some relatively high and rugged country.
[44] The community or social activities of the native title claim group include;
a. Hunting and gathering of bush tucker [affidavit of Joe Huddleston [5], [6]-[10]; 10172 Transcript pages 35-37, 53-55, 69]. 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 laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and about the significance of areas and sites of particular significance [affidavit of Joe Huddleston[8], [16]];
c. Religious activities such as introducing people to country [affidavit of Joe Huddleston [12]];
d. The community of native title holders actively look after country, by visiting and maintaining sites [affidavit of Joe Huddleston [13]]. 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.
e. In the Dry season Wagiman have big mobs of hunting places in the licence area [affidavit of Joe Huddleston[9]]. In the Wet season, Wagiman stop the car by the side of the Stuart Highway and walk in to the licence area to go hunting [affidavit of Joe Huddleston [7],[8]].
f. In the wet, members of the native title claim group, including Joe Huddleston and three other married men and their kids, take two cars up the Stuart Highway, or along the old railway, and park them at different places on the highway. The men circle round from one car to the other, hunting while they walk. These circles are generally between the Stuart Highway to the south, the old railway line to the north, Hayes Creek to the west. This area includes the licence area and the area of the proposed ELA 10172 [10172 Transcript pages 35-37,53].
g. Hunting also occurs in this area in the Dry. There are kangaroos, porcupines and bush tucker in the area of the proposed ELA 10172 in the Dry [10172 Transcript pages 35, 54-55]. It can be inferred that hunting also occurs in the Dry in the licence area.
h. There is a fishing area at Burrundie, McKinlay River or in the Grove Hill area [10172 Transcript pages 36, 54]. These areas are in the general vicinity of the licence area, but outside the area of the proposed ELA 10172 [10172 Transcript page 69].
These activities occur regularly and are carried on by more than isolated numbers of members of the native title claim group:
i. Wagiman go hunting in the licence area in the Dry season and in the Wet season. In the Wet season a vehicle full of people goes hunting [affidavit of Joe Huddleston [7]-[9]].
[17] 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. although the Form 4 contends that the township of Pine Creek and settlements of Burrundie and Kybrook Farm are affected, The Objectors’ concede Burrundie is over 15 kilometres distant. Pine Creek and Kybrook Farm are over thirty kilometres distant. No information is provided to suggest that any of these settlements are relevant communities of native title holders. Further, 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.
[18] The government party in its contentions in reply at [62-63] stated that;
[62] The Objectors at paragraph 41 of their Contentions suggest Pine Creek and Kybrook Farm as being communities being occupied by the native title claim group. The affidavit of Joe Huddleston deposes to him being a resident of Kybrook Farm and this settlement being approximately forty kilometres from the proposed licence area (affidavit paragraph 3). However, this is the only evidence provided of a member of the native title group residing at any of the nominated communities.
[63] It would require an inference unsupported by evidence to conclude that the mere existence of a settlement such as Kybrook farm forty kilometres from the proposed licence area, or even more the existence of a mining town such as Pine Creek, implied the existence of a community of native title holders.
[64] It would require a further inference to conclude that the inferred community of native title holders conduct social or community activities within the proposed licence area.
At [66] and [67] the government further contends;
[66] There is an issue of relevance and also of particularity with Paragraph 42. If the Objectors are asking the Tribunal to conclude that the potential use by the grantee of the Grove Hill Road, the Stuart Highway and an unnamed track is an interference directly with the 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 at [26])….
[67] As to Paragraph 43, 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. Mr Huddleston at paragraph 6 of his affidavit advises: “There are no fishing areas in the area of ELA 22147”.
[19] 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 years, which is set out in detail at [37-38] below.
[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; or
(b) any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
The Licensee shall carry out its activities in such a way as to minimise disturbance to 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.”
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)].
[22] 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 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 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 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
[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 Huddleston’s Affidavit and the map annexed thereto. Mr Huddleston 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. Mr Huddleston has identified a site 2 or 3 kilometres west of the ELA called Lagulin at [15] of his affidavit. However, there is no indication on the map provided by Mr Huddleston with his affidavit as to the location of the site.
[26] In its contentions, the native title party in [55] states “The particular significance of these sites identified by the evidence is:
a. Lagulin is a red-eyed pigeon dreaming site [affidavit of Joe Huddleston [15]].
[27] The AAPA sites map records 5270-36 as Red-eyed pigeon (Margaret River). It is located some distance west from the proposed licence area. It has a status of 40 and is said to be a “Raised rock outlier with two prominent peaks located east of the Stuart Highway 10 kms south-west of Hayes Creek.”.
[28] In its Statement of Contentions at [10], the Government party contends;
Attachment A to the Form 4 that there are no AAPA recorded or registered sites within the proposed licence area. The nearest contended site is over four kilometres distant.
[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 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] 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 [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 operation 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….
[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 Contentions in Reply at [7]-[27] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[36] 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.
[37] There is also before me in this matter evidence relied on by the government party in relation to the following Schedule of Current Mining Tenement covering the same area;
MCN(A) 5064-5066
MCN(A) 5233-5235
MCN(A) 5237- 5239
MCN(A) 5244- 5245
[38] Details of Prior Mining Tenements over the same area between 1973 and 2001. These are;
EL615, EL1601, EL2770, EL3138, EL3612, EL4450, EL4505, EL4818, EL4897, EL5006, EL5644, EL6786, EL7340, EL7754, EL7895, EL7913, EL8698 and EL9103. There were also three Authority to Prospect granted between 1966 and 1972, twenty (20) Mineral Claim (Northern) , six Mineral Lease (Northern ) and one Mineral Lease B (Waggaman). The recorded activity available from the Schedule of previous activity is as follows;
EL 1601, Activity
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.
EL3138, 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.
EL4818, Activity
Stream sediment sampling
Rock chip sampling
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.
EL5006, Activity
Rock chip sampling.
EL7754, Activity
Soil sampling
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.
Reverse Circulation (‘RC’) 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.
EL7913, Activity
Soil sampling.
[39] Having concluded as 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 the evidence of the parties, 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 22147 to Robert Fisher and Robert Stroud is an act which attracts the expedited procedure under the Native Title Act 1993(Cth).
J.E. Stuckey-Clarke
Member
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