Northern Territory of Australia/Jane McGregor & Ors (Kungarakan, Warai & Kamu)/ Rustler’s Roost Mining Pty Ltd
[2003] NNTTA 52
•21 March 2003
NATIONAL NATIVE TITLE TRIBUNAL
Northern Territory of Australia/Jane McGregor & Ors (Kungarakan, Warai & Kamu)/ Rustler’s Roost Mining Pty Ltd, [2003] NNTTA 52 (21 March 2003)
APPLICATION NO: DO02/31
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Jane McGregor and Ors on behalf of the Kungarakan, Warai & Kamu Peoples (Native Title Party)
- and -
Rustler’s Roost Mining Pty Ltd (Grantee Party)
- and -
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: 24 May 2020
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: Mr James Venables, Jackass Consulting Group
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 9782 (“the proposed tenement”) to Rustler’s Roost Mining 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 3 blocks (10 sq km) (a block is approximately 2.9 square kilometres) within the Batchelor locality. The area of the proposed tenement is comprised of Crown Perpetual 1711(commonly known as Robin Falls”) and; Freehold NT Portions 4808, 4809, 4810, 4811 and 4813.
[3] On 17 August 1999 a native title determination application was filed with the Federal Court (DC99/5) (D6005/99). The name of the application is “Adelaide River” and the applicants are Jane McGregor, Ada Calma, Rhonda Calma-Holt, Kathleen McGinness, Tony Kenyon, Gabriel Hazelbane, Roger Yates, Frances Storer and Marjorie Forster on behalf of the Kungarakan, Warai and Kamu Peoples. The application was registered on 6 January 2000. The “Adelaide River” application covers a geographical area of 79.973 sq km, and about two-thirds 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 (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 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 the representative for the Grantee Mr James Venables advised the Tribunal that at the Listing Hearing of 18 July 2002, the Grantee Party relied on the Contentions of the Government Party and of his inability to attend the Hearing.
Application to Dismiss the Objection Pursuant to Section 148(b).
[7] On 1 July 2002, the Tribunal received a faxed copy of the contentions of the native title party with a covering letter advising that the balance of the documents would be hand delivered to the Tribunal on 2 July 2002. The native title party also sought an extension of tine for the filing of its contentions on the basis that “counsel has been unavailable to draw the contentions”.
[8] On 2 July 2002, the Tribunal received a submission from the Solicitor for the Northern Territory Matthew Storey relating to Matters DO02/31, DO02/32, DO02/33, DO02/35 which stated;
“On 11 March 2002 Deputy President Franklyn made directions requiring the native title parties in theses matters to file contentions by 27 June 2002. The Northern Territory understands no contentions in these matters have been filed with the Tribunal by this time.”
The submission further stated that;
“Pursuant to s 148(b) the Northern Territory applies to have these matters dismissed on the basis that the applicants in each of these matters have failed within a reasonable time to comply with a direction by the Tribunal in relation to the application.”
On 9 July 2002, a listing hearing was convened before Deputy President Franklyn. After consideration of submissions by both the Government and the Native Title Party, on 9 July 2002, the member issued amended directions to the parties and stated that a further listing hearing would be convened on 18 July 2002, if required.
[10] On 18 July 2002, Deputy President Franklyn convened a hearing and drew the attention of the parties to an administrative error in the heading of the Directions which were issued on 9 July 2002. He advised that the correct title of Reason for Decision on the Application to Dismiss pursuant to s148(b) and variation to Directions would be amended. He further directed that evidence closed on 18 July 2002, and that the matter would be determined “on the papers”.
[11] On 19 July 2002, the Application for Dismissal was dismissed by Deputy President Franklyn with the Reasons for Decision and Amended Directions as follows;
REASONS FOR DECISION:
Dismissal of s.148 Application and Variation of Directions
On 31 October 2001 the Government party issued a notice under s29 of the Native Title Act that it proposed to grant exploration licence 9782 to the Grantee that it considered the grant to be an act attracting the expedited procedure.
On 28 February 2002 the Native Title party lodged an expedited procedure objection application in respect of the proposed grant.
On 11 March 2002 the Tribunal issued directions to the parties as follows:
(1)On or before 5 July 2002 the native title party shall provide the following to the Tribunal and each other party:
(a) a statement of contentions.
Statement of contentions to include:
· a statement of the nature and location of sites or areas of relevant significance in accordance with the native title holders traditions on or adjacent to the proposed tenements, identifying in each case the particular significance of the site or area; and
· a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement.
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list (which is provided to the other parties) indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the native title party verified where possible by affidavit and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
(2)On or before 10 July 2002 the grantee party shall provide the following to the Tribunal and each other party:
(a) a statement of contentions; and
(b) a copy of each document relevant to the Inquiry(including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list (which is to be provided to the other parties) indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the grantee party verified where possible by affidavit and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
(3)On or before 16 July 2002 each party may reply to the contentions made pursuant to Directions (1), (2) and (3).
(4) A listing hearing (if necessary) will be held on 15 July 2002.
(5) Liberty is given to apply to vary these directions or for a relisting of this hearing.
(6) Parties are asked to note that:
· if the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b) Native Title Act 1993 (as amended)); and
· a copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise.
· As far as practicable parties are to provide evidence in documentary form (see paragraph 3.14 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal on 20 April 2000 and in particular para 3.14.5).
· The expression tenement/s used herein and in subsequent directions in this matter includes, where appropriate, any exploration or other licence under the Mining Act (NT) , the subject of a notice issued under s29 of the Native Title Act.
The Government party duly complied with the directions addressed to it in paragraph (1) thereof.
The Native party failed to comply on or before the 27 June 2002 with the directions addressed to it in paragraph (2) thereof, but on 2 July 2002 provided the Tribunal and served on the other parties the contentions and material referred to in such paragraph and gave notice that it intended to apply for a variation of direction (2) by extending the period for such lodgement and service.
On 2 July 2002 prior to the service on it of such material, the Government party applied for the expedited procedure objection application to be dismissed, pursuant to s148(b) of the Native Title Act 1993 for failure to comply within a reasonable time with a direction of the Tribunal.
The said applications for variation and dismissal respectively were brought on for hearing together on 8 July 2002 when submissions were made by all parties.
The Native Title party’s application for variation by extension of time was grounded on the claim that its counsel had been unavailable to draw its contentions. Counsel was available at the hearing and confirmed that he had accepted instructions…. to prepare those contentions “some time ago” and that at that time there appeared to be no problem with compliance but that in the end the pressure of work on related matters resulted in him being unable to prepare the contentions by 27 June 2002 but did so by Monday 1 July 2002 when they were lodged with the Tribunal and a copy faxed to the other parties. The supporting material for the contentions was lodged and served on Tuesday 2 July 2002. Thus the contentions were late by two days and the supporting material by three days. I do not accept the Government party’s contentions that it is disadvantaged or prejudiced to any real extent by that delay. I accept the delay to of been occasioned by the miscalculation of the Native Title party’s counsel who, it seems, overestimated his ability to complete his brief by the due date. The period of delay is very short and with the weekend intervening it seems most improbable that the Government party would be put too far behind in its preparations because of that delay.
I wish to make clear however, that failure by counsel or solicitor to perform work necessary for compliance by a Native Title party with directions addressed to it will rarely be accepted as sufficient justification for extending the time for compliance or dismissing an application under s148(b) even when the delays are relatively short. The period of time allowed for compliance is such that it is difficult to accept that it cannot reasonably be effected within the directed timeframe. Any counsel or solicitor engaged must accept that his failure to attend to his brief so that the Native Title party can comply with directions addressed to it leaves that party at very real risk of dismissal of its objection application. Expedited procedure matters are to be dealt with expeditiously and failure to comply with directions is not compatible with that requirement. That is implicit in the provisions of s.148(b). It is appreciated that dismissal of an objection application results in the Native Title party losing its right to negotiate. That is always a matter of great significance but when the directions allow a timeframe such as that in this case, it cannot be the overriding consideration. Failure to comply with directions also has the very real flow-on effect of upsetting the Tribunal’s schedule of matters to be dealt with and its ability to expeditiously deal with the same.
Decision
For the reasons given I dismiss the application to dismiss the expedited procedure objection application DO02/31 and I vary the directions of 11 March 2002 as follows:
(a)direction (2) thereof is varied by substituting the date 5 July 2002 for the date 27 June 2002;
(b)direction (3) thereof is varied by substituting the date 10 July 2002 for the date 4 July 2002;
(c)direction (4) thereof is varied by substituting the date 16 July 2002 for the date 11 July 2002; and
(d)direction (5) thereof is varied by substituting the date 18 July 2002 for the date 15 July 2002.
[12] 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 determine the matter on the papers pursuant to s151 of the NTA.
The Evidence
Objectors’ Evidence
[13] 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 15 June 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 Adelaide River native title determination application (DC99/05). I am an applicant in that application. I am Warai.
I live at Waruk, near Humpty Doo in the Northern Territory. I have lived there for over 20 years.
3. The area of the application includes the area of ELA 9782. 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 “TK9782” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
I know the country on the ELA. It is south of Adelaide River township. Part of the ELA area is on freehold land, down near Burrell Creek. The other part of the ELA area is in the hills west of the road that goes from Adelaide River to Daly River. I am told by the NLC that this is not freehold land.
Creeks run down from the hills to the west into Burrell Creek, then north into Adelaide River, then through Adelaide River township. Some of those creeks have springs. In the Dry time, they flow halfway: in the Wet, they flow all the time.
I go to the ELA area when I go to Adelaide River. I used to go hunting there with my uncle and my dad, when I was a little kid, before the Japanese War. We went all along that flat country in the ELA area and up into the hills. We hunted and looked for porcupines.
Dad used to work in the Army. He passed away in the War time. After the War, we moved out from there. Since we moved we didn’t get back much. My oldest brother used to hunt there. He died in 1981. He used to live in Adelaide river.
My granddaughters Jennifer and Diane and their families live in Adelaide River now. So does my grandson Edward. They are brothers and sisters. Their father is Warai. They still go hunting there. They fish for turtle along Burrell Creek, and hunt kangaroo. They go every week when they have the day off.
If anyone goes hunting around Adelaide River, in Warai Country, they have to ask permission from me or my brother Roger.
10. Kungarakany people, like the Verbergs, stop along the road south of Adelaide River. The old people used to walk through the hills. Old McGregor and his family, go along the road, pull up, and go fishing for short and long necked turtles. They might stop in the ELA area. They used to shoot kangaroo; now they can’t because there are fenced up blocks.
11. I am worried because the ELA area is up from the creek. I am worried about stuff getting into the creek and going downstream. I am worried about them killing the fish and turtle downstream. I am worried that any stuff that gets into Burrell Creek will get into the Adelaide River.
12. The Exploration Company might prevent us from 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.
13. There are sites along Burrell Creek, from the jump up on the left hand side, down to the army camp near Adelaide River. They are Mudak Dreaming – an aboriginal schooling thing.
14. If they damage the creek, they might find something happens to them. They might get a big sore growing on their foot or finger.
15. There are sites all along the creek. You might get sick if you damage them. It might be you will get injured walking along the creek, for instance, if a stick hits your knee. It might be three years before you die.
16. All those sites are the same dreaming, Mudak. It goes right down to Adelaide River township.
17. Wunindi is a site there. It is an initiation place. The boys who were to be initiated, were taken up the creek to hunt and camp. My grandchildren can still go there, as long as they are not too big.
18. I have stopped people drilling into a site before. Near Hayes Creek is Union Reef Mine. The country around there belongs to Hazelbane mob. There is Dog Dreaming there in that country, that belongs to Warai women. My grandmother told me. If anyone touches one big hill there, a wild dog comes out.
19. That’s what happened. They were using a drill to drill a hole into that hill. It would probably kill the people working there, if they damage that place. I went there with Dave Ritchie from AAPA I told them not to drill a hole into that hill.
[14] 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 an 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)The transcript of the evidence of Jeffrey John Wilson Stead given on 3 December 2001 (“the Stead transcript”).
(h)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”).
i. 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;
ii. The AAPA material provided to the Tribunal and other parties in DO01/19 Paddy Huddlestone and Others/Moffatt/NT.
The Government Party’s Evidence
[15] 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
[16] The grantee party advised in a letter to the Tribunal dated 3 July 2002;
“The Adelaide River Exploration Licence 9782 was applied for as a result of the regional exploration program, which identified several targets of interest. While geological criteria was important in selecting areas of interest, attention was also paid to finding areas where future production, if a deposit was found, was feasible and where exploration could be carried out without interfering with local communities and native sites.”
Planned Work Program
“The Planned work program would include an initial review of company reports, published technical literature and compilation of previous exploration data. Ground work would include regional drainage sampling, soil sampling, rock chip sampling and prospecting. Detailed follow up grids would be established over anomalous areas identified to facilitate further work including infill geochemical sampling and geological mapping. Drill targets would be selected based on this follow up work…”
The Grantee further stated;
“We concur with the view of the Government (Item 7 and 8) of the Contentions of the Government Party, that the granting of the proposed license would not interfere with the carrying on of community or social activities of the persons who are the holders of the native title in relation to the land. As noted by the Government, there is no aboriginal community within the proposed license area and the town camp referred is six kilometers to the northeast of the proposed license area. Any exploration activity of the Company would be confined to the area of the ELA”.
The Parties’ Contentions
[17] 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
[18] 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.”
[19] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.
Reasoning
Section 237(a) – Interference with carrying on of community or social activities
[20] 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.
[21] 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. Adelaide River township is about 6 kilometres north of the licence are, along a sealed road (Old Stuart Highway). Three of the grandchildren of Tony Kenyon (Luwanbi), and their families, live at Adelaide River [affidavit of Tony Kenyon (Luwanbi) [8]].
[42] There are several roads inside, and in the vicinity of the licence area that are frequently used by the members of the claim group to access the communities and areas, including the licence area, for the purpose of carrying on community and social activities.
a. Old Stuart Highway (Dorat Road) passes through the licence area.
[43] There are several water bodies and other areas of environmental significance in and around the licence area. These are used for fishing, as sources of drinking water, and may sustain and be part of areas and sites of significance. They include;
a. Burrell Creek passes through the eastern part of the licence area. It flows north into the Adelaide River. Several creeks flow through the licence area from the hills in the western part of the licence area[affidavit of Tony Kenyon (Luwanbi)[4],[5],[11]].
[44] The community or social activities of the native title claim group include;
a. Hunting, fishing and gathering of bush tucker. Three of Tony Kenyon (Luwanbi)’s grandchildren and their families live in Adelaide River and go hunting in the licence area. They fish for turtle along Burrell Creek, and hunt kangaroo. They go every week , when they have the day off[affidavit of Tony Kenyon (Luwanbi) [6],[8],[9][10]]. 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. Authorising other people to hunt in the licence area. Warai authorise Kungarankany people, like the Verbergs and old McGregor and his family, to hunt in the licence area [affidavit of Tony Kenyon (Luwanbi) [9],[10]];
c. Teaching children about traditional laws and customs, the techniques of conducting hunting, fishing gathering and other activities. Three of Tony Kenyon (Luwanbi)’s grandchildren and their families, and old McGregor and his family hunt and fish in the licence area [affidavit of Tony Kenyon (Luwanbi) [8], [10]]. An inference can be drawn from the fact that they take their families there, that they teach them about the activities that they conduct there;
d. The community of native title holders actively look after country, by visiting and maintaining sites [affidavit of Tony Kenyon (Luwanbi) [17],[18]-[19]]. 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. Three of Tony Kenyon (Luwanbi)’s grandchildren and their families live in Adelaide River and go hunting and fishing in the licence area. They fish for turtle along the Burrell Creek, and hunt kangaroo. They go every week when they have the day off. So do the Verbergs and Old McGregor, who area Kungarankany [affidavit of Tony Kenyon ( Luwanbi)[8],[10]].
These activities occur regularly and are carried on by more than isolated numbers of the native title claim group;
f. Three of Tony Kenyon (Luwanbi)’s grandchildren and their families live in Adelaide River and go hunting in the licence area. They fish for turtle along the Burrell Creek and hunt kangaroo. They go every week when they have the day off. So do the Verbergs and Old McGregor, who[sic] area Kungarankany [affidavit of Tony Kenyon (Luwanbi) [8],[10]].
[22] 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;
b. although the township of Adelaide River is nominated in the Form 4 (as is the “community” of Waira, which is in effect a town camp within Adelaide River).[sic] The objectors concede that township is six kilometres to the north east of the proposed licence area. There is no indication that this township constitutes a community of relevant native title holders. Further, the township 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 relevant community or social activities.
[23] The government party in its contentions in reply at [62-63] stated that;
[62] Adelaide River township is contended in Para 41 of the Objectors contentions as the only relevant settlement. Mr Kenyon deposes that he is a member of the relevant native title claim group. By reasonable inference it can be assumed that Mr Kenyon’s grandchildren are also members of the claim group. Three of Mr Kenyon’s grandchildren reside at Adelaide River (Kenyon affidavit at para 8). Mr Kenyon himself does not reside at Adelaide River but at Humpty Doo (Kenyon affidavit at para 2) some 80 kilometres distant. Beyond Mr Kenyon’s three named grandchildren, it is uncertain to what extent Adelaide River is a “community of relevant native title claimants”. Mr Kenyon does not depose that “Old McGregor” nor the “Verbergs” ( referred to in the Kenyon affidavit para 10) are either members of the native title claim group or residents of Adelaide River.
[24] I note also that the Government Party in its statement of contentions has led evidence in [21-22] 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 [40] below.
[25] 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.
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.”
[26] 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)].
[27] On the evidence before me, I find that there are certain community or social activities carried on on the proposed tenement. Mr Kenyon’s affidavit is essentially to the effect that his people, the Warai, “They still go hunting there. They fish for turtle along Burrell Creek, and hunt kangaroo They go every week when they have the day off.” 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 history of mining and exploration activities on the tenement, 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
[28] 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.
[29] 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].
[30] 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, Mr Kenyon has identified a site north east of the ELA called “Wunindi” at [17] of his affidavit. He also identifies sites along Burrell Creek as “Mudak Dreaming- an aboriginal schooling thing’ at [13]-[16]. However there is no indication on the map provided by Mr Kenyon as to the location of the sites. In its contentions, the native title party in [53] states:
“The particular significance of this site identified by the evidence is:
a. There are Moduk Dreaming sites along Burrell Creek, from the jump up on the left hand side, down to the army camp near Adelaide River. There are sites all along the creek. All those sites are the same dreaming, Modok. It goes right down to Adelaide River township[affidavit of Tony Kenyon(Luwanbi) [13],[16]].
b. Wunindi is a site there [affidavit of Tony Kenyon (Luwanbi) [17]].
The AAPA sites map records “Wunindi” as located some distance north east from the proposed licence at 5171-76. It has a status of 12 and is said to be “Large billabong on Burrell Creek south of Adelaide River”. The site map does not identify the location called “Moduk Dreaming” and is of no assistance to the Tribunal in this matter.
[31] In its contentions in reply at [76-79], the Government party contends:
76. The Objectors make reference to only two identified vicinities. These are Moduk Dreaming sites along Burrell Creek,(objectors contentions paragraph 53a) and Wunindi (Objectors contentions paragraph 53b). The Government contends that neither of these can constitute areas or sites of particular significance for the purposes of an inquiry under s237(b).
77. In relation to the alleged Modok dreaming sites along Burrell Creek. The only evidence relied on in relation to this point is the affidavit of Mr Kenyon. However Mr Kenyon supplied no evidence that:·the alleged sites are in fact within the licence area;
·the alleged sites are in fact of particular significance or that he has authority to give evidence about such significance;
·there is any risk of interference to such alleged sites.
The recent determination of Member Sosso in Griffiths/BHP Billiton/Northern Territory DO01/100 5 July 2002 at paragraph [63] is apposite. In that matter Member Sosso was considering the evidence of a Mr Roberts who deposed that there were “sites all the way to the top [of Alpa Creek]”. Member Sosso commented on this evidence that:
[63] Reference is also made to both Sandy Creek and Alpa Creek (Gardirriny) it is suggested that there is a Dingo dreaming there. While Mr Roberts says that the mining company can go up Sandy Creek he objects to the mining company going up Alpa Creek. Leaving aside for one moment Mr Robert’s authority to speak on behalf of the Dingo dreaming sites, the statement about Alpa Creek is so vague that it is not much assistance to the Tribunal. He only mentions one site (Gardirriny) along Alpa Creek, and does not speak of the particular sacredness of Alpa Creek, just that it is part of the Dingo Dreaming. In these circumstances, even if it were the case that Mr Roberts had the requisite authority to speak on behalf of these sites, the Tribunal has not been presented with sufficient material to make a finding that Gardirriny is a site of particular significance. Moreover Mr Roberts does not name the other sites along Alpa Creek, he simply says that there are sites all the way to the top. As Deputy Franklyn said in Chubby Jones & Ors/ Western Australia/Taipan Resources NL WO99/620-622, unreported1 November 2000, (at [19]): “No question can arise as to the likelihood or otherwise of interference of such a site unless there is evidence of its existence”.
78. In the current matter Mr Kenyon does not name any specific sites associated with the alleged dreaming. In addition as noted in paragraph 4 of these contentions, Burrell Creek is not within the area subject of claim under DC99/5 and, thus, irrelevant to this inquiry.
79. As to the location identified by Mr Kenyon at paragraph 17 of his affidavit as Wunindi. Mr Kenyon provides no indication as to the location of Wunindi. From the context of the affidavit it could be anywhere from the licence area to Adelaide River township. He gives no indication of its significance other than a place where boys taken to be initiated were taken to hunt and camp. He gives no indication of his authority to speak for the location. Finally, he gives no indication as to why he apprehends a potential interference with the location.
[32] 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.
[33] 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 is actually located on the proposed tenement.
[34] Further, the Tribunal is aware of the extensive legislative regime created by the Northern Territory 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.
[35] 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
[36] 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].
[37] 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, only 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….
[38] 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 [5]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[39] 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.
[40] There is also before me in this matter evidence relied on by the government party in relation to the following Details of Prior Mining Tenements over the same area between 1978 and 2001. These are EL1344, EL1759, EL1996, EL2055, EL3254, EL3677, EL5065, EL6920, EL7517, EL7792, EL8200, EL8452. There were also five Authority to Prospect granted between 1961 and 1972, and two Mineral Lease B (Waggaman) and one Extractive Mineral Permit (Northern ). The recorded activity available from the Schedule of previous activity is as follows;
EL 2055, Activity
Diamond drilling involved:
(i) preparation of drill site,
(ii) drill to predetermined depth;
(iii) collection of core samples;
(iv) cutting of the core sample to collect a particular size interval; and
(v) 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.
EL3677, 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.
EL5056, Activity
Stream sediment 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.
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.
AP1959, Activity
Soil sampling.
[41] 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 presumption of regularity, 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 9782 to Rustler’s Roost Mining 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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