Northern Territory of Australia/Robert Patrick Markham & Ors (Wagiman, Dagoman and Jawoyn)/Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge

[2003] NNTTA 44

NATIONAL NATIVE TITLE TRIBUNAL

Northern Territory of Australia/Robert Patrick Markham & Ors (Wagiman, Dagoman and Jawoyn)/Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge, [2003] NNTTA 44 (13 March 2003)

APPLICATION NO:  DO02/50

IN THE MATTER of the Native Title Act 1993 (Cth)

-     and  -

IN THE MATTER of an inquiry into an expedited procedure objection applications 

MR ROBERT PATRICK MARKHAM AND OTHERS ON BEHALF OF THE WAGIMAN, DAGOMAN, and JAWOYN PEOPLE (DO02/50), (Native Title Party)

-     and  -

ALISTAIR QUEST, ALISTAIR ANDERSON, ANTHONY WILKINSON and RAYMOND WOOLDRIDGE (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:         13 March 2003

Hearing dates:            5 July 2002, 26 August 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:            Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge.

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 12 December 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 9786 (“the proposed tenement”) to Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.

[2] The proposed tenement covers an area of 1 block (3 sq km) (a block is approximately 2.9 square kilometres) within the Pine Creek locality. The area of the proposed tenement is comprised of Perpetual Pastoral Lease 1058 (commonly known as “Jindare”) and Pastoral Lease 643 (PL), (commonly known as “Bonrook”).  

[3] On 1 March 2001 a native title determination application was filed with the Federal Court (DC01/18) (D6018/01). The name of the application is “Bonrook” and the applicants are Mr George Huddleston and Others, on behalf of the Wagiman, Dagoman and Jawoyn Peoples. The application was registered on 29 March 2001. The “Bonrook” application, which covers a geographical area of 490.29 sq km, encompasses the whole of the area of the proposed tenement.

[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (12 April 2001) after the section 29(4) notification day (12 December 2001). Mr Robert Patrick Markham, Paddy Huddlestone, George Huddlestone and Julie Williams are the named objectors. The Tribunal has previously determined that Form 4 objections in Group 4 have been properly accepted and that, while a Form 4 cannot be amended in a substantive manner after the statutory 4 month time limit has expired, there is no amendment of a Form 4 by the submission to the Tribunal of such matters as are contained in the contentions of the native title party in the matters before me: see the Decision of Member Sosso on whether the Tribunal has Jurisdiction to conduct an inquiry in Applications No. DO 01/3, DO 01/13, DO 01/19-23, unreported, 21 December 2001. I agree with and follow Member Sosso’s decision in those matters. I conclude that the Tribunal has jurisdiction to determine this inquiry.

[5] On 16 April 2002 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed Professor Douglas Williamson QC to constitute the Tribunal for the purpose of this expedited procedure inquiry. On 18 September 2002 Deputy President Sumner appointed me as the Member to constitute the Tribunal for the inquiry.

[6] On 17 April 2002 and 12 August 2002, Member Williamson made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. At the listings hearing on 26 August 2002, the Tribunal granted the native title party and the government leave to file further contentions. Having considered the material lodged with the Tribunal, and being advised that there was no application received from any party for an “on country” hearing to take place, I am satisfied that I can adequately determine the matter on the papers pursuant to section 151 of the Act.

The Evidence

Objectors’ Evidence

[7] The native title party relies upon an affidavits of Mr George Huddlestone affirmed on 9 August 2002, Mr Paddy Huddlestone affirmed on 12 August 2002, and Mr Joe Huddlestone affirmed on 15 August 2002, of Kybrook Farm, in the Northern Territory of Australia, which are set out in full below:

AFFIDAVIT – GEORGE HUDDLESTONE

I, George Huddlestone of Kybrook Farm, 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 Bonrook native title determination application (DC01/18).  I am Wagiman.  Paddy Huddlestone is my brother.  I live at Kybrook Farm and at Benung near Pine Creek in the Northern Territory.  I live on Wagiman country.

2. The area of the application includes the area of ELA 9786.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “GH-9786” is a map of the ELA and surrounding area.

3. The area of ELA 9786 is Wagiman country. For strangers we have to wet their heads before they go in, and introduce them to our country.  I can speak for that country.  It is on Bonrook Station.

4. We usually go hunting in the area of the ELA.  We don’t get in trouble if we go hunting on Bonrook Station.  We still go there today; no one stop us.

5. We walk all day there hunting on the ELA area.  We used to go on the Kybrook tractor.  We drive there now.  We go look for kangaroo, wild pig.  Sometimes we walk along, Paddy and me.  We cook kangaroo, pig, porcupine.

6. When the rains start, we go looking for black plums.  After the first storm there’s a big mob of bush tucker: plums and berries; a big mob of goanna and kangaroo; porcupine.  Sometimes we go camping for a week.  We leave on a Sunday.  If we run short of sugar we get that honey – sugar bag.

7. If they explore on that country, you can’t find animals for hunting.  I’m worried about that oil or dirt being put into the creeks.  It might kill all the good feed: the fish and turtles, all the wildlife.

8. That mining mob should come and talk to Wagiman about what they do on Wagiman country.

All the facts and circumstances deposed to in this affidavit are within my own knowledge except where they are stated to be from information only and my means of knowledge and sources of information appear on the face of this affidavit.

Affirmed at Pine Creek this 9^th day of August 2002.

AFFIDAVIT – JOE HUDDLESTONE

I, Joe Huddlestone 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 Bonrook native title determination application (DC01/18).  I am Wagiman.  George and Paddy Huddlestone are my brothers.  I live at Kybrook Farm near Pine Creek in the Northern Territory.  I live on Wagiman country.

2. The area of the application includes the area of ELA 9786.  The area ELA 9786 is Wagiman country.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “JH-9786” is a map of the ELA and surrounding area.

3. Sometimes in the wet time, we go down the highway and park the car.  We walk in to the west of the highway and go hunting.  We stop and walk in to Copperfield Creek.  We catch pigs and goannas.

4. In the camp at Kybrook, we tell the kids stories.  When they finish school or at weekends, we take the kids out there.  We walk along Copperfield Creek.  It is all good hunting country.  There are pigs, goannas, kangaroos, porcupines, turkeys, emus, fish.  We don’t follow along the creeks; we know the short cuts from point to point.

All the facts and circumstances deposed to in this affidavit are within my own knowledge except where they are stated to be from information only and my means of knowledge and sources of information appear on the face of this affidavit.

Affirmed at Pine Creek this 15^th day of August 2002.

AFFIDAVIT – PADDY HUDDLESTONE

I, Paddy Huddlestone 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 Bonrook native title determination application (DC01/18).  I am Wagiman.  George Huddleston  is my brother.  I live at Kybrook Farm near Pine Creek in the Northern Territory.  I live on Wagiman country.

2. The area of the application includes the area of ELA 9786.  The area ELA 9786 is Wagiman country.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “PH-9786” is a map of the ELA and surrounding area.

3. The area of ELA 9786 is Wagiman country. I can speak for that country.

4. There is an old wagon road from Kybrook to the Claravale Road, along Copperfield Creek.  Copperfield Creek goes by Kybrook.  The road comes out just near where Copperfield Creek crosses Claravale Road.  Young fellas, like Patrick and George, go hunting there along that back road from Kybrook to Claravale.

5. They hunt kangaroo, goanna, porcupine and pig.  Once the country is burnt, they go hunting everywhere.  There are about 5 or 6 Wagiman boys who go, and some others.  Sometimes, they walk. Sometimes, they camp at the mine out there, and go hunting around the place.  They go every weekend along that wagon road.  If they don’t find anything, they’ll set up a dinner camp and go hunting around there on foot.  They go hunting with a rifle.  If they catch anything, they’ll cut a stick and carry it on their shoulder.  Sometimes the old people go.

All the facts and circumstances deposed to in this affidavit are within my own knowledge except where they are stated to be from information only and my means of knowledge and sources of information appear on the face of this affidavit.

Affirmed at Kybrook Farm this 12^th day of August 2002.

or affidavits in the period immediately before compliance is required.

[8] The native title party submitted the following further evidentiary material to the Tribunal:

(a)The Mataranka Land Claim Report extracts - paragraphs [7.1.1] [7.2.6].

(b)A document entitled “Rights conferred under exploration licence”, which is in the nature of Contentions.

(c)A document entitled “Analysis of Legislation dealing with significant areas and sites”.

(d)A document entitled “Exploration Activities” annexed to the affidavit of Mark Frederick Foy. This document is relied upon as a statement of expert opinion.

(e)The Transcript of the evidence of Mark Frederick Foy given on 4 December 2001 (the Foy transcript). This transcript is relied on as a statement of expert opinion. 

(f)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001. This affidavit is relied upon as a statement of expert opinion.

(g)Information and map provided by the Aboriginal Areas Protection Authority in relation to Aboriginal Sacred Sites within the area of the proposed tenement (‘the AAPA sites information and AAPA map”).

(h)Affidavit of Mark Andreas Rumler affirmed 26 August 2002.

The Government Party’s Evidence

[9] The government party submitted its particulars as well as the following evidentiary material to the Tribunal:

(a)A topographical map marked with the area of the proposed tenement , location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”), tenure details and any known Aboriginal communities;

(b)A schedule of details of the sacred sites referred to;

(c)Mining Tenement documents, including the licence application and details of any current mining tenement and prior mining tenements granted over the same area;

(d)A Revised Prior Tenement Schedule, prior exploration licence map, previous exploration activity map and schedule and existing title holder map and schedule;

(e)The Government advised that it also intends to rely on its Standard Exhibits Documentation as particularised in its Contentions.

The Grantee Party’s Evidence

[10] The grantee party advised in an email from Grantee Representative Ray Wooldridge   dated 26 August  2002;

“Our group will go with the contentions of the Department of Business, Industry and resource Development for this afternoon’s hearing with respect to ELA 9786.”

The Parties’ Contentions

[11] The government and native title parties filed extensive contentions in the proceedings. I have considered the contentions in detail and will refer to them with particularity where appropriate.

General Legal Principles

[12] Section 237 of the Act provides:

“A future act is an act attracting the expedited procedure if:

(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…of native title in relation to the land or waters concerned; and

(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are holders… of the native title in relation to the waters concerned; and

(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”

[13] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.

Reasoning

Section 237(a) – Interference with carrying on of community or social activities

[14] The Government party in its Statement of Contentions at [7] set out its submissions as to the proper construction of section 237(a) with which I agree. I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.

[15] The native title party in its Contentions at [41]-[44] contends that:

“[41] There are several aboriginal communities ‘in the vicinity of’ the licence area which are occupied by members of the native title claim group. They include:

a. Kybrook Farm is about 3 kilometres north of the licence area, near the Stuart
     Highway.
b. Pine Creek is about 6 kilometres to the north of the licence area.

[42] There are several roads inside, and in the vicinity of the licence area.

a. The Stuart Highway runs north south through the eastern part of the licence

area.

[43] There are several water bodies and other areas of environmental significance in

and around the licence area. They include:

a. A creek flowing through the licence area forms part of the larger Copperfield

Creek  system.

[44] The community and social activities of the native title claim group include:

a.   Hunting, fishing and gathering of bush tucker..

i.Paddy Huddlestone says that young fellas, like Patrick and George, go hunting there from Kybrook Farm along the back road from Kybrook to Clarevale, along Copperfield Creek. They hunt Kangaroo, Goanna Porcupine and Pig. Once the country is burnt, they go hunting everywhere. There are 5 or 6 Wagiman boys who go, and some others. Sometimes they camp at the mine out there, and go hunting around the place. They go every weekend along that wagon road. If they don’t find anything , they’ll set up a dinner camp, and go hunting around there on foot. They go hunting with a rifle. Sometimes old people go [affidavit of Paddy Huddlestone [4], [5].

ii.George Huddlestone says that members of the native title claim group go hunting in the area of the licence area:

1.   They drive there. They walk all day on the licence area, looking for kangaroo, wild pig.

2.   Sometimes George walks there with Paddy. They cook kangaroo, pig, porcupine.

3.   When the rains start, they go looking for black plums, After the first storm there’s big mobs of bush tucker: plums and berries: a big mob of goanna and kangaroo; porcupine.

4.   Sometimes they go camping for a week. They leave on a Sunday [affidavit of George Huddlestone [4]-[6]].

iii.Joe Huddlestone says that sometimes in the wet season, members of the native title claim group go down the highway and park the car. They walk in to the west of the highway towards Copperfield Creek and go hunting for pigs and goannas [affidavit of Joe Huddleston [3],[4]].

iv.Charlene Thompson says she and her husband Sonny, walk along the Stuart Highway from Kybrook, to the swamp where they catch fish barramundi and goanna. There are two big billabongs on the right hand side of the road.  They are about two kilometres off the road – about the same distance as Kybrook is from the road. They are less than half way to the Claravale turnoff, over a hill and after the flat country. In 2001, they went once in the dry. They leave in the morning and get there at midday [affidavit of Charlene Thompson[2],[3]].

v.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 the significance of areas or sites [affidavit of Joe Huddlestone [4]].

c. Camping [affidavit of George Huddlestone[6]; affidavit of Paddy Huddlestone [5]].

These activities occur over some or all of the licence area, and in it’s vicinity.

d. Hunting occurs:

i.From Kybrook Farm along the back road from Kybrook to Claravale, along Copperfield Creek. If they don’t find anything, they will set up a dinner camp and go hunting along there on foot [affidavit of Paddy Huddlestone [4],[5]].

ii.In the area of the licence area. They walk all day hunting on the licence area[affidavit of George Huddlestone [4],[6]].

iii.As people walk from cars parked along the Stuart Highway west towards Copperfield Creek[affidavit of Joe Huddlestone[3],[4].

iv.Along Copperfielfd Creek and between points along the creek [affidavit of Joe Huddlestone[4]].

v.At two billabongs two kilometres from the right hand side of the Stuart Highway, less than halfway to the Claravale turnoff, over a hill and after the flat country [affidavit of Charlene Thompson[2],[3]].

These activities occur regularly and are carried on by more than isolated numbers of members of the native title claim group:
            e. Community or social activities are carried on by the deponents and by:

1.Young fellas like Patrick and George. There are about 5 or 6 Waigman boys who go, and some others. They go every weekend along that wagon road. If they don’t find anything they will set up a dinner camp and go hunting around there on foot [affidavit of Paddy Huddlestone [4], [5]].

2.Sometimes the old people go [affidavit of Paddy Huddlestone [5]].

3.Members of the native title claim group go hunting in the area of the licence area in the dry and in the wet [affidavit of George Huddlestone [4], [6]]. Sometimes they go camping for a week [affidavit of George Huddlestone [4]-[5].

4.George Huddlestone goes hunting with Paddy Huddlestone [affidavit of George Huddlestone [5]].

5.Members of the native title claim group take the kids hunting thereafter school or at weekends [affidavit of Joe Huddlestone [3], [4]].

6.Charlene Thompson and Sonny went to the billabongs once 2001, in the dry [affidavit of Charlene Thompson [3].]

[16] The government party in its contentions in reply at [43-44] states;

[43] Pine Creek and Kybrook are contended to be relevant communities located “in or near the ELA”, (in Paragraph 41). Both these are more than 3 kilometres distant from the proposed licence area. In addition uncertainty remains as weather wither (sic) is wholly or partially, a community of relevant native title claimants, the number who reside there, and whether their residence is seasonal or permanent.
[44] It would require a double inference to conclude, without any other evidence , that the presence of a community in the general vicinity of the proposed licence area indicated that 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 minor exceptions noted, no such evidence is provided.

[17] I note also that the Government Party in its statement of contentions has led evidence in [21-23] 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 [34] 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 community or social activities carried on on the proposed tenement although the evidence lacks specificity as to who in fact is involved in those activities and how regular those activities are. 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.

[21] In conclusion, therefore, where some limited degree of contemporary community and social activities is evidenced as being presently conducted by some members of 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 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

[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 the affidavit of Mr Paddy Huddlestone, Mr George Huddlestone and Mr Joe Huddlestone and the maps annexed thereto. None of the deponents identifies any site of particular significance that is actually located on the proposed tenement. The AAPA site information discloses no registered or recorded sites located within the proposed tenement. However, it has identified a number of sites located in the vicinity. The AAPA site map and legend identifies the closest registered site north west of the ELA as 5270-48, with a description of White Ochre (Pine Creek), and a status of 40, in the vicinity of the ELA.

[25] 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.

[26] 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.

[27] In those circumstances, there can be no likelihood of direct interference. Further, the Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective; indeed the evidence is to the contrary.

[28] 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

[29] 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].

[30] 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….

[31] 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.

[32] 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.)

[33] 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.

[34] There is also before me in this matter evidence relied on by the government party in relation to the following exploration licences having been granted over the area of the tenement. These are EL4901, EL4969, EL6357, EL6392, EL7628, EL7673, EL7902, EL8230 and EL9175. Seven of those are current.The activities covered a large area of the proposed tenement and included;
EL4969 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;
EL6357 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.

EL6392, EL7673,   Activity: Stream sediment sampling

EL7628, EL9175,   Activity:  Rock chip sampling

EL8230, Activity: 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;
  (iii)  laboratory processing/analysis of the sample for mineral content.

[35] Having concluded like Member Sosso did in Moses Silver, even before the regime was further strengthened by the Mining Management Act provisions, that the government party standard exhibit before me “highlights that the Northern Territory has in place a well advanced, integrated and proactive legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process”, and having considered the evidence of previous exploration activity, the fact that the area of the proposed tenement is only a very small area of the land and the fact that the native title party has led no evidence as to any major disturbance occasioned by such activity in the past, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to such land or waters.

Determination

The determination of the Tribunal is that the grant of Exploration Licence 9786 to Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge is an act which attracts the expedited procedure under the Native Title Act 1993(Cth).

J.E. Stuckey-Clarke
Member
13 March 2003