Paddy Huddleston and ors on behalf of the Wagiman, Warai and Jawoyn Peoples/Northern Territory/Robert Stroud and Robert Fisher

[2003] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Paddy Huddleston and ors on behalf of the Wagiman, Warai and Jawoyn Peoples/Northern Territory/Robert Stroud and Robert Fisher, [2003] NNTTA 35
(19 February 2003)

APPLICATION NO:          DO01/62

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

-  and  -

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

Paddy Huddleston and ors on behalf of the Wagiman, Warai and Jawoyn Peoples
(Native Title Party)

-  and  -

Robert Joseph Stroud and Robert Lorenz Fisher (Grantee Party)

-  and  -

Northern Territory of Australia (Government Party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Prof. Douglas Williamson QC
Place:  Melbourne
Date:  19 February 2003

Catchwords:               Native title – future act – proposed grant of exploration licence – expedited procedure objection application – standing to make objection - evidence – document purporting to withdraw objection – inconsistent evidence – whether authority to speak for objectors – circumstances in which document obtained – bypassing of representative of objectors – questions as to reliability of document – section 151(2) Native Title Act 1993 (Cth) – decision that objection ought not be determined on the papers – necessary to hear oral evidence about circumstances of purported withdrawal – hearing ‘on-country’ – processes for conduct of hearing – order of witnesses – group evidence – no oath or affirmation – use of ‘repeater’ – scope of oral hearing – observations on conduct of grantee party – desirability of ensuring participation by representative of objectors – section 109(1) Native Title Act – unfair to rely on document – decision that objection not validly withdrawn – whether act is likely to have any of the consequences specified in s 237 of the Native Title Act – whether presumption of regularity applies to grantee party – other circumstances likely to ensure compliance with regulatory regime – evidence does not support objection – determination that the grant of exploration licence is an act attracting the expedited procedure.

Legislation:                 Native Title Act 1993 (Cth) ss 29, 32, 109, 151, 237

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3

Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 3, 33, 34, 35, 36

Mining Act 1980 (NT) ss 24, 24A, 166

Mining Amendment Act 2001 (NT) s 14

Mining Management Act 2001 (NT) ss 35, 36, 37

Cases:  Smith v Western Australia (2001) 108 FCR 442

Dann v Western Australia (1997) 74 FCR 391

Little v State of Western Australia [2001] FCA 1706, Nicholson J

Cheinmora v Striker Resources NL (1996) 142 ALR 21

Commercial Bank of Australia v Amadio (1983) 151 CLR 447

Cambridge Gulf Exploration NL v The Northern Territory and Others, Supreme Court of Northern Territory, Thomas J, 8 December 1995

Aboriginal Areas Protection Authority v Cambridge Gulf Exploration NL, Local Court of Northern Territory, Hannan SM, 24 August 1994

Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, Member Sosso, 1 February 2002

George Huddlestone and Others/Stephen Darryl Moffatt/Northern Territory, NNTT DO01/19, Member Sosso, 2 February 2002

Michael Page/Arafura Resources NL/Northern Territory, NNTT DO01/21, Member Sosso, 1 February 2002

Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, Deputy President Franklyn QC, 27 March 2002

Waanyi Jambarana and Waanyi Liliriji/Ashton Mining Ltd/Northern Territory, NNTT DO01/11, Member Stuckey-Clarke, 14 May 2002

Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, Member Williamson QC, 15 July 2002

Arthur Que Noy and Others/Robert Michael Biddlecombe/Northern Territory, NNTT DO01/114, Member Sosso, 19 July 2002

Anges Limerick/Pilbara Chemical Corporation NL and Rare Earths and Minerals Pty Ltd/Northern Territory, NNTT DO01/47, Member Williamson QC, 5 August 2002

Robert Patrick Markham and Others on behalf of the Wagiman, Dagoman and Jawoyn Peoples/Alistair Quest and Others/Northern Territory, NNTT DO02/51 and DO02/52, Deputy President Sumner, 29 November 2002

Gabriel Hazelbane and Others/Imperial Granite and Minerals Pty Ltd/Northern Territory, NNTT DO02/45 and DO02/46, Member Williamson QC, 24 December 2002.

Listing Hearing dates:    12 December 2001, 25 February 2002, 21 March 2002.

Hearing ‘on country’:     16-17 April 2002.

Conclusion of written submissions:     21 May 2002.

Government Party:         Mr Daniel Lavery, Solicitor for the Northern Territory.

Native Title Party:        Mr Angus Frith of Counsel, instructed by Mr Mark Rumler, Solicitor for the Northern Land Council.

Grantee Party:               Mr Robert Stroud and Mr Robert Fisher.

TABLE OF CONTENTS

Paragraph

Background: proposed grant; objection  [1]

Contentions by parties: lists of submissions  [8]

Evidence by parties: lists of material  [10]

Generic evidence  [13]

The expedited procedure provisions  [16]

Affidavit of Joe Huddleston  [21]

Decision to conduct hearing ‘on country’  [22]

The on-country hearing
  –  Preliminary matters  [39]
  –  Oral evidence  [49]
  –  Submissions  [91]

Conclusions concerning withdrawal of objection  [98]

Assessment of evidence under s237 criteria [126]

Section 237(a): Interference with carrying on community
or social activities  [129]
  –  Community or social activities  [131]
  –  Interference with activities  [147]
  –  Past exploration activities  [155]
  –  The regulatory regime  [159]
  –  Presumption of regularity  [165]
  –  the government party  [165]
  –  the grantee party  [166]
– Conclusion as to s237(a) [171]

Section 237(b): Areas or sites of particular significance [178]
  –  Identification of sites  [180]
  –  Interference with sites  [191]
– Conclusion as to s237(b) [194]

Section 237(c): Major disturbance to land or waters [195]
  –  Criteria: ‘major’ disturbance  [196]
  –  Evidence  [199]
– Conclusion as to s237(c) [205]

Conclusion as to s237 generally [206]

Determination  [208]

REASONS FOR DETERMINATION

Background:  proposed grant; objection

[1] On 7 March 2001 the Northern Territory (‘the government party’) gave notice pursuant to section 29 of the Native Title Act 1993 (Cth) (‘the Act’) that it proposed to grant exploration licence 10172 (‘the proposed tenement’) to Robert Stroud and Robert Fisher (‘the grantee party’) and included a statement in accordance with section 32(1) that it considered that the act attracted the expedited procedure as defined in section 237 of the Act.

[2]  The proposed tenement area (‘the licence area’) comprises 10 blocks (approximately 33 square kilometres) located within the Pine Creek locality.  It is a rectangular shape, approximately 9.5 kilometres north-south and 3.5 kilometres east-west.  The major portion of the licence area (approximately 80%) is over part of Pastoral Lease (‘PL’) 815, known as ‘Mary River West’, and the balance (the northern-most 20%) is over part of PL 903, known as ‘Douglas’.

[3]  On 1 February 2001 a native title determination application (DC01/6, D6006/01) was filed with the Federal Court of Australia (‘the Mary River West application’).  The applicants are Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the native title claim group comprised of the Wagiman, Warai and Jawoyn Peoples (‘the native title claim group’).  The application was accepted for registration and entered on the Register of Native Title Claims on 1 March 2001.

[4]  In the application form for the Mary River West application, and the Form 4 document referred to below, the surname of several applicants is spelt ‘Huddleston’.  In various subsequent documents, the surname is sometimes printed as ‘Huddleston’ and sometimes ‘Huddlestone’.  Signatures are sometimes written ‘Huddleston’, and sometimes ‘Huddlestone’.  Usually (but not always) the signed version corresponds to the printed version, whatever that might be.  For consistency the surname ‘Huddleston’ is used in this determination.

[5] An application (Form 4) dated 9 July 2001 objecting to inclusion of the proposed grant in an expedited procedure was lodged within the statutory time period pursuant to section 32(3), and accepted by the Tribunal on 16 July 2001 pursuant to section 77. The objectors are the applicants referred to above on behalf of the native title claim group (‘the objectors’, or ‘the native title party’). Form 4 states at paragraph 5 that all of the land and waters subject to the section 29 notice ‘is covered’ by the Mary River West application. Attachment A to Form 4 states that ‘ELA 10172 is largely within the Mary River West PL … [but] … the northernmost section crosses into the Ban Ban Springs PL.’ (paragraph 3(a)). Reference to detailed geospatial data held by the Tribunal indicates that the correct pastoral lease is Douglas, not Ban Ban Springs. Further, the geospatial data indicates that the northern boundary of the Mary River West application corresponds to the northern boundary of Mary River West PL in the relevant area. Accordingly the 20% of the licence area that is north of that boundary and within Douglas PL is not within country ‘covered’ by the Mary River West application.

[6] In my opinion, the objectors nevertheless have standing to object to the proposed grant of the licence area as a whole, even though part of it lies outside the boundary of their Mary River West application. Further, it is not fatal to the objection if the evidence by the objectors about the likely effect of the proposed act - in terms of ‘traditional owner’ based section 237 criteria – is confined to the portion of the licence area that is within their native title claim area. See Gabriel Hazelbane and Others on behalf of the Warai and Angwinmil Peoples (DO02/45) and Gabriel Hazelbane and Others on behalf of the Wagiman, Warai and Jawoyn Peoples DO02/46)/Imperial Granite and Minerals Pty Ltd/Northern Territory NNTT DO02/45 and DO02/46, Member Williamson QC, 24 December 2002, at paragraphs [21] to [38].

[7]  Listing hearings were held on 12 December 2001, 25 February 2002 and 21 March 2002.  As discussed below, a decision delivered at the listing hearing on 21 March 2002 resulted in a hearing of oral evidence ‘on-country’ on 16 and 17 April 2002.  This evidence was recorded and transcribed (‘the transcript’).  Further written contentions followed, concluding on 21 May 2002, after which the objection application was reserved for decision.

Contentions by parties:  lists of submissions

[8]  The following contentions were submitted to the Tribunal prior to the ‘on-country’ hearing held on 16-17 April 2002:

(1)Government party’s statement of contentions, dated 21 November 2001.

(2)Grantee party’s statement of character and contentions, 4 December 2001.

(3)Objectors’ statement of contentions, 18 December 2001.

(4)Grantee party’s request for section 150 conference, 8 January 2002.

(5)Objectors’ reply to the contentions of the government party, 23 January 2002.

(6)Grantee party’s contentions in reply, 28 January 2002.

(7)Government party’s contentions in reply, 1 February 2002.

(8)Objectors’ response to grantee party’s request for section 150 conference, 6 February 2002.

(9)Objectors’ contentions in reply to paragraph [85] of the government party’s contentions in reply, 12 March 2002.

[9]  The following contentions were submitted to the Tribunal following the ‘on-country’ hearing held on 16-17 April 2002:

(1)Government party’s final contentions, 2 May 2002.

(2)Objectors’ submissions, 3 May 2002.

(3)Grantee party’s reply to objectors’ submissions, 10 May 2002.

(4)Objectors reply’s to government party’s final contentions, 14 May 2002.

(5)Government party’s final reply, 15 May 2002.

(6)Government party’s addendum to final reply, 21 May 2002.

Evidence by parties:  lists of material

1. The government party submitted the following evidence:

   (1)Map marked with

   (i)      the proposed licence area;

   (ii)    the location of various underlying tenures of land, both within the proposed licence area and in its general locality; and

   (iii)   the location of sacred sites, registered or recorded pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989, both within the licence area (nil) and in its general locality; and

   (iv)   the location of any known Aboriginal communities.

   (2)Mining tenement documents including

   (i)      a copy of the Exploration Licence application, (with financial details in a sealed envelope marked ‘Financial Details – Confidential’, dated 21 August 1998);

   (ii)    a schedule of current mining tenures covering the same area;

   (iii)   details of prior mining tenements granted over the same area, with dates of grant, expiry, surrender or termination.

   (3)Extracts from, or references to, statutory conditions and materials routinely provided to all grantees, listed in the statement of contentions 21 November 2001 (and now encompassed in the government party’s ‘standard exhibit’ referred to below).

   (4)Attachments to the government party’s contentions in reply 1 February 2002, comprising a transcript of proceedings of the reasons for decision by Hannan SM in the Local Court, Northern Territory, in the matter of Aboriginal Areas Protection Authority v Cambridge Gulf Exploration NL, 24 August 1994, pages 1 to 6 (Attachment ‘A’), and the reasons for decision by Thomas J in the Supreme Court, Northern Territory, in the matters of Cambridge Gulf Exploration NL v The Northern Territory and Others, 8 December 1995 (Attachment ‘B’).

   (5)Attachment ‘A’ to the government party’s final contentions 2 May 2002, comprising updated and expanded information and maps concerning prior tenements, previous activity, mineral occurrence, and existing title holders in and around the licence area.

   (6)Annexure ‘A’ to the government party’s addendum to final reply, 21 May 2002, comprising copy affidavit of Joe Huddleston affirmed 22 April 2002 together with appended map marked ‘JH-10339’.

2. The native title party submitted the following evidence:

   (1)Affidavit of Joe Huddleston affirmed 11 December 2001 (‘the affidavit’), together with map of licence area and surrounding country marked ‘JH-10172’ produced with the affidavit.

   (2)Affidavits affirmed by expert witnesses Jeffrey John Wilson Stead (8 October 2001) and Mark Frederick Foy (6 November 2001).  Annexure ‘MFF1’ to Mr Foy’s affidavit is a 10 page document ‘Exploration Activities’ prepared by him.

   (3)Documents prepared by Angus Frith ‘Rights conferred under an exploration licence’ (8 October 2001) and ‘Analysis of legislation dealing with significant area and sites’ (7 November 2001).  These are in the nature of legal analysis and opinions concerning the relevant legislation.

   (4)The Upper Daly Land Claim Report, 10 August 1989, with particular reference to extracts from pages 84, 88 and 89.

   (5)Letter dated 6 February 2002 from the Northern Land Council to Tribunal containing unsworn factual material concerning the background to the letter dated 4 January 2002 referred to in paragraph [12(2)] below.

   (6)Documents attached to objectors’ contentions in reply to paragraph [85] of the government party’s contentions in reply, 12 March 2002:

   (a)     Article ‘Do these walls have ears?’ Australian Indigenous Law Reporter (2000) 5 AILR 1, by Justice Peter Gray.

   (b)     The ‘Anunga’ Rules, being guidelines for the interrogation of Aboriginal suspects in police matters, laid down by the Supreme Court of the Northern Territory in R v Anunga [1976] 11 ALR 412.

   (c)     Extracts from transcript of evidence in DO01/19 given by George Huddleston on 15 November 2001 at Kybrook Farm (pages 1 to 63) and at Japenjin (pages 1 to 13).

   (7)Material presented at ‘on-country’ hearing at Kybrook Farm on 16-17 April 2002

   (a)     Oral evidence by Lenny Liddy, Joe Huddleston, Paddy Huddleston (transcript pages 13-70).

   (b)     Exhibit 1, Kidman Springs/Jasper Gorge Land Claim Report, 31 March 1989, paragraphs 3.5 and 3.6.

   (c)     Exhibit 2, map prepared by Aboriginal Areas Protection Authority (‘AAPA’) showing sites in the vicinity of the licence area (no sites are on the licence area) registered or recorded in the Register of Sacred Sites as at 7 December 2001, together with a schedule containing the reference number, description (name), brief geographical description, status and map co-ordinates for each site.  The map was referred to in the evidence by Paddy Huddleston during the ‘on-country’ hearing at Kybrook Farm on 16 April 2002, (transcript pages 34 and following).  Various notations were made upon the map to identify places referred to by Mr Huddleston in his evidence.

3. The grantee party submitted the following evidence:

   (1)Unsworn ‘statement of character’ concerning industry background and policy of grantee party, 4 December 2001.

   (2)Document dated 4 January 2002 from Paddy Huddleston and others to the Tribunal, purporting to withdraw objection DO01/62.  A copy of this letter is appended to the grantee party’s reply to the contentions of the objectors, 28 January 2002.

   (3)Letter dated 8 January 2002 from grantee party to Tribunal requesting section 150 conference relating to the letter referred to in (2) above, and explaining the background to it.  Relevant extracts from this letter are set out in the grantee party’s reply (above), 28 January 2002.

   (4)Oral evidence at ‘on-country’ hearing, Kybrook Farm by Robert Stroud (16 April 2002, transcript pages 71 to 95), Robert Fisher (17 April 2002, transcript pages 106 to 116) and Mohamad Douglas (17 April 2002, transcript pages 98 to 106).

   (5)Exhibit 3, at the ‘on-country’ hearing, comprising hand-written notes made by Robert Stroud at meeting at Kybrook Farm on 5 January 2002 (16 April 2002, transcript pages 81 to 84).

   (6)Unsworn factual material concerning the background to the letter dated 4 January 2002, contained in the grantee party’s reply to the submissions regarding evidence given at Kybrook Farm, 10 May 2002.

Generic evidence

1. With the consent of the parties, the following ‘generic’ material was received in evidence:

   (1)Memorandum by Member Sosso, 16 November 2001 ‘Generic Issues To Be Dealt With’, provided to the parties in expedited procedure objection inquiries DO01/13 and DO01/19.

   (2)Response by government party, 5 December 2001.

   (3)Response by Northern Land Council, 6 December 2001 on behalf of the native title party.

   (4)Transcripts of evidence given by Jeffrey John Stead, 3 December 2001, and Mark Frederick Foy, 4 December 2001, in expedited procedure objection inquiry DO01/11 before Member Stuckey-Clarke.

   (5)The ‘Standard Exhibit’ submitted by the government party.

2. Since the listing hearings, the Northern Land Council has provided a folder of Standard Documents to Contentions of Objector, compiled as at 9 August 2002, to be relied upon as evidence or submissions in all expedited procedure objection inquiries.  The folder includes the affidavits and documents referred to in paragraphs [11(2)] and [11(3)] above, and the transcripts of evidence referred to in paragraph [13(4)].  Given that no grant has yet been made in this matter to the grantee party, it is appropriate to have regard to all relevant material in this folder of Standard Documents.

3. As at the dates of the listing hearings, the ‘Standard Exhibit’ referred to in paragraph [13(5)] above comprised a folder of ‘Particulars’ provided on 22 November 2001.  Since then, the folder has been updated, as at August 2002.  The government party relies upon the contents of the Standard Exhibit in all expedited procedure objection inquiries.  Copies of the exhibit are ‘on file’ with the Tribunal, the Northern Land Council, the Central Land Council, and are available for reference by proposed grantees.  In brief, the contents comprise extracts from legislation, standard conditions that are contained in every grant of an exploration licence, and brochures, booklets, guidelines and other information concerning the conduct of exploration and mining in the Northern Territory.  The relevant material is brought to the attention of applicants for the grant of an exploration licence, either prior to or at the time of grant.  Given that no grant has yet been made in this matter to the grantee party, it is appropriate to have regard to the Standard Exhibit in its updated form, as at August 2002.

The expedited procedure provisions

1. Subdivision P of Division 3 of Part 2 of the Act applies to certain future acts, including the conferral of specified mining rights, which by definition include exploration rights (section 253). Subdivision P establishes a regime for negotiation amongst prescribed parties, and if agreement is not reached, then a determination is to be made by an arbitral body. If the procedures of the subdivision are not complied with, the future act will be invalid to the extent that it affects native title.

2. Section 32 of the Act applies if the notice given under section 29 of intention to do the act (in this matter, to grant an exploration licence) includes a statement that the government party considers that the proposed act is an act attracting the expedited procedure as defined in section 237. If the proposed act is one that does attract the expedited procedure, then the negotiation or determination process provided by subdivision P is no longer applicable, and the proposed act may validly be done.

3. In the present matter the objectors have lodged an objection pursuant to section 32(3) against the inclusion of the statement. If the objection is upheld, then the further provisions of subdivision P remain applicable.

4. The key to the objection process and the present inquiry lies in the provisions of section 237. These provide as follows:

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

(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) 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 the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or 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.

1. The interpretation and application of the provisions of section 237, both before and since amendment in 1998, have been the subject of considerable attention both in determinations by the Tribunal and judgements of the Federal Court of Australia. This material has been canvassed in detail in the contentions by the government party and the native title party in the present matter, and in a number of similar objection inquiries in the Northern Territory during the past year. An extensive and helpful analysis of the relevant principles is set out in the Reasons For Determination given by Member Sosso in Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, 1 February 2002 (‘Moses Silver’). No point is served by repeating that process here, because to the extent that the principles and observations set out in paragraphs [20] to [47] (predictive assessment, standard of proof, presumption of regularity, evidence of intention, activities outside the proposed tenement, beneficial and protective character of the Act, co-existence of rights with pastoral leases, meaning of the term ‘act’); paragraphs [49] to [62] (section 237(a) – community and social activities); paragraphs [86] to [107] (section 237(b) – sites of particular significance) and paragraphs [135] to [140] (section 237(c) – major disturbance) of DO01/13 are relevant to the issues directly raised in the present matter, I respectfully agree with them and adopt them, subject to incorporation of the comments about the appropriate approach to spiritual issues set out in paragraphs [18] to [21] of my reasons for determination in Billy Coolibah and Others/Ashton Mining Ltd/Northern Territory, NNTT DO01/60, 15 July 2002.

Affidavit of Joe Huddleston (‘the affidavit’)

1. It is convenient to set out here the affidavit of Joe Huddleston, affirmed 11 December 2001, which accompanied the objectors’ initial statement of contentions, 18 December 2001.  The affidavit (which is headed ‘Joe Huddlestone’ but signed ‘Joe Huddleston’) states:

   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 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 the ELA 10172. I have seen a map of the area of the ELA. Now produced and shown to me marked “JH-10172” is a map of the ELA and the surrounding area.

   3.   I live at Kybrook, near Pine Creek, in the Northern Territory. The area of ELA 10172 is north of the Stuart Highway near Emerald Springs. It is about 35 kilometres from Kybrook.

   4.   We still go hunting there rain time – wet season – you got no other place – other place too boggy. Can’t use motor car. We drive up the road, that Stuart Highway, stop car side of road and then walk in there. We hunt Kangaroo, porcupine, everything.  Find big mob Kangaroo stay there all day hunt him with gun, sometimes spear, Lenny Liddy makes them spear.

   5.   We go there get bush tucker – green plum, bush potato, water yam, sugar bag.

   6.   We used to go camping. Now drive up and back on day trips. People go there just last week. Used to take Kybrook community tractor camp there overnight. Get porcupine when they come down to water there at night.

   7.   Now we drive down come back that afternoon.

   8.   We go hunt there dry season too. That good hunting there. We don’t go fishing there. Dry season water all gone. Every dry season we got big mobs hunting place. Go to this place for hunting.

   9.   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.

   10.    No dreaming site there.

   11.    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 their skin get into the dust of that country.

   12.    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 but have to talk to us first and we show them there 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.

   13.    That mining company should come and talk to Wagiman for that country

   14.    There is a site near the ELA called Lagulin (AAPA site 5270-36). It is red-eyed pigeon dreaming site. I worry that mining company damage the water the creeks that go to that Lagulin from that ELA.

   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.

As stated at paragraph 2, the affidavit is accompanied by the map marked ‘JH-10172’.  For brevity hereafter, Mr Huddleston’s affidavit will be referred to as ‘the affidavit’.

Decision to conduct hearing ‘on-country’

1. A listing hearing was held on 12 December 2001. Representatives of the native title party and the government party participated, but the grantee party was unable to attend. Directions were made extending the time for compliance with earlier directions for the filing of certain submissions. The parties present were asked whether they wished to have the objection application determined on the papers, and it was agreed that this would be appropriate. The Tribunal is required pursuant to section 151(2) to hold a hearing if it appears that the issues for determination cannot be adequately determined in the absence of the parties. At that stage, having regard to the material then before the Tribunal and the consent of the parties present, I formed the view that it was not necessary to hold a hearing, and directed that a determination be made on the documents.

2. By letter dated 8 January 2002 to the Tribunal, the grantee party requested a section 150 conference.  It enclosed a document dated 4 January 2002, purporting to be a withdrawal by the objectors of their objection.  The letter dated 8 January 2002 and its enclosure were copied by the grantee party to the native title party and the government party.

3. By Tribunal letter dated 4 February 2002 the parties were notified that Deputy President Sumner had considered the request for a section 150 conference, and had decided that it should not be convened at this stage given the circumstances of the matter and responses by parties.

4. The Northern Land Council, as representative for the objectors, by letter dated 6 February 2002 responded in detail to the grantee party’s letter dated 8 January 2002.  (apparently there had been an earlier response by letter dated 25 January 2002).

5. Having regard to the provisions of sub-sections 150(3) and 150(4), as the Tribunal Member conducting the hearing I was quarantined from the request for a conference and the relevant documents.  However, once the request was refused by Deputy President Sumner, the substance of the matter was raised before me for determination in the hearing.  Accordingly a directions hearing was held on 25 February 2002 at which the relevant material referred to in these reasons was placed before me and submissions were made by the parties.

6. The grantee party’s reply to the contentions of the objectors, 28 January 2002 sets out the relevant extract from the letter dated 8 January 2002, and encloses the document dated 4 January 2002 in full.

7. The extract from the letter dated 8 January 2002 is as follows:

   Both Bob Fisher of Hayes Creek and myself Bob Stroud have now received and read the Objectors Contentions from the NLC.  We are both very concerned that there must be some misunderstanding between the Objectors representative (NLC) and the Objectors as to their desires and intentions.  I have included a letter signed by Paddy Huddleston and others reflecting their desires.  There are also other issues listed below that we consider to be incorrect.

   We request an – s.150 – conference/meeting with the objectors (Huddleston & Ors) to allow them to clarify their correct desires with NNTT.

   Sharon, Bob Fisher has been a very good friend with the Huddleston family for many years and in particular Paddy, Joe and Lenny Liddy.  I have also known the Huddlestons for sometime mainly through Bob Fisher and other people in the Pine Creek area so it came as a surprise to us both to read Joe Huddleston’s affidavit.  We have always had good longstanding dialogue with Paddy in all of our operations and in particular at the area known as “The East Margaret Diggings” which is covered by our application ELA10172.  Paddy has always said it is his area and it is his desire for us to continue mining and exploration in the area as it does not affect his family at all.  Paddy called in during Christmas break to see Bob Fisher and wish him all the best and asked how is the mining and lease approvals going.  It was during this conversation that Fisher brought up the fact that Paddy’s brother Joe signed an affidavit saying that they still hunt this area and take the farm tractor up there when hunting.  Paddy was alarmed with what Fisher had explained and replied that the area is his and Wagiman and Joe is not authorised to say anything about the area by himself without Paddy’s consent.

   Both Bob Fisher and myself called in on the Huddlestons and Paddy at Kybrook Farm last Saturday the 5^th January 2002.  Paddy again confirmed that it is his desire and intention that we continue to operate and mine in the area in question.

1. The document dated 4 January 2002 is in typescript and is as follows:

   Paddy Huddleston
   Kybrook Farm
   Pine Creek
   NT

   4 January, 2002

   National Native Title Tribunal
   GPO Box 9973
   DARWIN  NT  0801

   CC:      Northern Land Council
               Chairman
               P.O. Box 42921
               Casuarina NT 0811

   Reference:

   DO01/62:  Expedited Procedure Inquiry - Paddy Huddleston & Ors (Wagiman, Warai and Jawoyn)
   Objectors

   And

   Robert Joseph Stroud and Robert Lorenz Fisher (ELA 10172)
   Grantee Party

   Dear Sir/Madam,

   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. Joe and George Huddlestone are my brothers.

   2.The area of the application includes the area of ELA 10172. I have seen a map of the area which identifies the boundaries of ELA 10172 and MCN????.

   3.I have travelled to the area with Bob Fisher and Bob Stroud and checked its location and boundaries, including the distance and relationship to the sacred sites 5270-36 (Lagulin) and 5270-37.

   4.The total area of the EL Application and MCN’s are contained within the catchment area of the East Margaret River which flows easterly into the Margaret River system and thence into the Adelaide River system.

   5.I have checked and confirmed that no water flow could at any stage flow into or through or near any sacred site at any time, as there is a range of hills dividing the applications areas from the relevant sacred sites.

   6.I have discussed with Bob Fisher and Bob Stroud their intentions and have no concerns about any exploration/mining activity carried out with the bounds of the law.

   7.I am aware of the damage caused by mining to this area and that it will not effect or influence any area we frequent for hunting or living or have any influence on our life style.

   8.I hearby withdraw my objection DO 01/62 over the ELA 10172 and agree to granting both the exploration application ELA 10172 and the mineral claims MCN5233, MCN5234, MCN5235, MCN5237, MCN5238, MCN5239, MCN5244, MCN5245.

   Signed Paddy Huddlestone.

   Signed Lenny Liddy.

   Signed George Huddlestone.

   Signed Tony Kenyon.

   Signed Robert Patrick Markham.

   Signed Gabriel Hazelbane.

2. The six names listed above were typed as set out, presumably in anticipation of signature at the appropriate places opposite by some or all of the persons listed.  They are the six named objectors.  The actual signatures to the document are not reproduced here, but the original document is signed by Paddy Huddleston and Lenny Liddy (two of the six objectors) and also by Joe Huddleston.  The latter is not a named objector, but is a member of the native title claim group upon whose behalf the objection is made, and is the deponent in the affidavit of 11 December 2001.  The document is not signed by the other four objectors whose names are listed.

3. Below the three signatures is the hand-written inscription ‘witnessed’ and the signatures ‘R Stroud’ and ‘Bob Fisher’, each dated 5 January 2002.

4. The government party’s contentions in reply dated 1 February 2002, paragraph 88, submit that ‘the conflict of facts (evident from the transcript of previous hearings and from inconsistent statements made to the Grantee) would make it appropriate that this matter not proceed to determination ‘on the papers’ as … the issues for determination cannot be adequately determined in the absence of the parties (see s 151(2)(b) NTA)’. Reference is also made to Little v State of Western Australia [2001] FCA 1706, R.D. Nicholson J, concerning the authority of members of the native title claim group to make complaint.

5. The letter dated 6 February 2002 by Mark Rumler, Northern Land Council (‘NLC’) solicitor representing the native title party, expressed concern at the grantee party’s letter dated 8 January 2002 and the enclosed document dated 4 January 2002.  Mr Rumler contended that the grantee party should not be entitled to rely upon the document dated 4 January 2002.  A number of grounds were advanced, including -

   (1)not all of the objectors had signed the document

   (2)instructions had since been received by the NLC that -

   ·        the native title claim group, on whose behalf the objection was made, did not wish to withdraw the objection

   ·        no opportunity was given to seek legal advice from the NLC (and none was given)

   ·        the signatories could not read, the document was not read to them, and the intended use of the document was not explained.

It is not necessary to set out the extensive further submissions by the NLC, based upon a variety of grounds, but the concluding submission was that in all the circumstances it would be unconscionable and inequitable for the grantee party to be able to rely upon the document.

1. In the light of the material then available to me, a further listing hearing was convened on 25 February 2002 to enable submissions to be made by the parties. 

Mr Lavery, for the government party, submitted that the objection should no longer be dealt with on the papers, having regard to the mandatory effect of section 151(2).

Mr Frith, for the native title party, submitted that the Tribunal has a discretion under section 151(2) and that the matter should still proceed on the papers, but that the letter dated 8 January 2002 should be excluded insofar as it contains statements attributed to Paddy Huddleston, and that the document dated 4 January 2002 should be totally excluded.

Mr Stroud and Mr Fisher, collectively the grantee party, requested an oral hearing so that the matters raised by the grantee party may be resolved.

Upon completion of the submissions the matter was reserved for consideration.

1. At a listing hearing held on 21 March 2002 I announced a decision to vacate the direction made on 12 December 2001 that a determination be made ‘on the papers’, and instead to hold a hearing. The basis of the decision was that in the circumstances that had arisen since 12 December 2001, it no longer appeared to the Tribunal that the issues for determination could be adequately determined in the absence of the parties, as provided by section 151(2).

2. Oral reasons for decision were given.  Reference was made to the above documents and submissions.  It was noted that only two of the six named objectors had signed the document dated 4 January 2002; there was no indication in the document of the views of the other four objectors, or of the claimant group as a whole; in particular there was no indication of any authority for the 3 signatories (including Joe Huddleston) to withdraw the objection made on behalf of the native title claimant group as a whole.  Reference was made to the differences between what was expressed by Joe Huddleston in his affidavit dated 11 December 2001 and in the document dated 4 January 2002 signed by him, and also to the comment about Joe Huddleston’s authority in the letter dated 8 January 2002.  Reference was also made to the various assertions of fact (made on instructions) set out in the NLC’s letter dated 6 February 2002, and the desirability of having direct evidence relating to those matters.  There were other matters in issue, including whether there were inconsistencies in the objectors’ material compared to evidence given in other proceedings.  The latter included the matter raised in paragraph 85 of the government party’s contentions in reply dated 1 February 2002, and the objectors’ contentions in reply to those contentions, dated 12 March 2002. 

3. It was concluded that whether section 151(2) was mandatory or discretionary in its application, on either view I was not satisfied that the issues for determination could be adequately determined ‘on the papers’ in the absence of the parties. Specifically, it was necessary to hear oral evidence, tested by cross-examination if appropriate, to determine whether the document dated 4 January 2002 or the relevant parts of the letter dated 8 January 2002 ought to be received into evidence, and if so, what significance or weight, if any, ought to be given to them.

1. Further directions were given concerning arrangements for the hearing and the presentation of evidence commencing on 16 April 2002.  It was accepted by the parties that this should take place ‘on-country’, at Kybrook Farm, which is located a short distance off the Stuart Highway in the vicinity of Pine Creek.  It was directed that the existing written materials stand as outlines of evidence by witnesses referred to therein, and that if any party sought to call evidence from a witness not referred to in the written materials, an outline of evidence was to be provided to the other parties not later than 12 April 2002.

The ‘on-country’ hearing – preliminary matters

1. A hearing of oral evidence was conducted at Kybrook Farm on 16 and 17 April 2002.  Mr Frith, counsel representing the objectors, proposed to call as witnesses Paddy Huddleston, Lenny Liddy and Joe Huddleston.  Messrs Stroud and Fisher, representing themselves as the grantee party, proposed to call the same three witnesses, plus George Huddleston and Mohamed Douglas, and to give evidence themselves.  Mr Lavery, representing the government party, did not propose to call any oral evidence.

2. A number of preliminary matters were dealt with, as discussed below.

3. It was agreed between the parties that Mr Frith, and not the grantee party, would call Paddy Huddleston, Lenny Liddy and Joe Huddleston.  Mr Frith submitted that the grantee party should call the other witnesses first.  That submission was rejected on the basis that it was appropriate for the objectors’ evidence to be provided first, but it was indicated that if a matter arose from evidence by witnesses called by the grantee party that had not been put to the witnesses called for the objectors, then Mr Frith could apply to recall any of his witnesses to address any such matter.

4. Mr Frith requested that the witnesses to be called by him should give their evidence together as a group.  Questions could be directed to a particular persons at particular times, but the others might assist in answering.  This request was not opposed by the other parties and was accepted.

5. Mr Frith submitted that it was not appropriate for an oath or affirmation to be administered to any of the witnesses in this inquiry.  In particular he contended that when evidence is given by the group, consultation might occur before an answer is given, and it is often difficult to work out whose answer it is.  Reliance was placed upon views expressed by Olney J in the Kidman Springs/Jasper Gorge Land Claim Report (No 30), pages 7-8, at paragraph 3.5, (submitted and marked as Exhibit 1).  His Honour considered that notwithstanding the practice of at least some of his predecessors, he declined to administer an oath or affirmation to any of the witnesses called.  There was doubt about the degree of understanding of the significance of an oath or affirmation, there was strong peer pressure to tell the truth when speaking in public, and in the case of a group giving evidence, consultation within the group made it difficult to determine just who had given the answer.  Further, His Honour saw no reason why non-Aboriginal witnesses should not be accorded the same respect.  Mr Frith acknowledged that there were differences between circumstances under the Aboriginal Land Rights (Northern Territory) Act 1976 and the Native Title Act, but submitted that they were not significant differences so far as the relevance of the observations by Olney J were concerned.

6. Mr Lavery did not oppose the application, but referred to past occasions on which Paddy Huddleston, Lenny Liddy and Joe Huddleston had affirmed affidavits, and both Mr Liddy and George Huddleston had taken an affirmation before giving oral evidence.  The grantee party had nothing to add.

7. Section 156(1) of the Act provides that the Tribunal ‘may’ take evidence on oath or affirmation. It was indicated that in the ordinary course of events I would expect that either an oath or affirmation would be taken, and that one should be looking for some particular reason why it was appropriate not to do so in the specific circumstances of a particular matter. In this particular matter little had been provided by way of specific circumstances. However, given the proposal to call evidence from witnesses as a group; having regard to the considerations expressed by Olney J; and taking into account that neither Mr Lavery nor the grantee party opposed the application; I accepted Mr Frith’s application. It was indicated however, that it should not be assumed that a similar approach would be taken in other matters, unless there was satisfaction that the particular circumstances warranted this approach.

8. In the event, evidence was given by the group without administration of oath or affirmation, and similarly by Mr Douglas.  In the circumstances Mr Stroud and Mr Fisher were offered the same opportunity, but each chose to take an oath.

9. Facilities were available to record the evidence.  Unfortunately the apparatus was not capable of providing amplification of sound.  In anticipation of some difficulty in all persons present clearly hearing the evidence, it was agreed by the parties that Mr Gareth Lewis (from the Northern Land Council) who was familiar with the speech patterns of the witnesses, would sit close to the witnesses and if necessary act as a ‘repeater’ of what was said.  This meant that if something said was too quiet or indistinct to be clearly heard by all present, he would repeat it loudly and clearly.  It was understood by all parties that Mr Lewis was not to act as an interpreter.  In practice the process worked well.  It was applied by Mr Lewis with discretion and gave no cause for objection at any stage.

10. The final preliminary matter concerned the scope of the oral hearing.  It was proposed by the Tribunal and not disputed by the parties that the oral evidence need only be directed to the issues arising from the grantee party’s letter dated 8 January 2002 and the document dated 4 January 2002.  All other matters were still to be dealt with on the papers, as originally envisaged by the direction to that effect given on 12 December 2001.  To this there were two qualifications, requested by the government party and acceded to by the other parties and the Tribunal.  Mr Lavery sought clarification as to the location of the site ‘Lagulin’ referred to in Mr Huddleston’s affidavit at paragraph 14, and clarification of the locality referred to in the expression ‘hunting there’ at paragraph 4 of the affidavit.  The first matter was resolved by reference to the AAPA site map (submitted for the first time at the hearing and marked Exhibit 2), the second matter was dealt with in oral evidence by Paddy Huddleston.

The ‘on-country’ hearing – oral evidence

1. Paddy Huddleston, Lenny Liddy and Joe Huddleston gave evidence as a group.  Although there was consultation between them from time to time, at different times one or the other of them was basically the ‘lead’ witness.

2. Paddy Huddleston said he had known Bob Fisher for eighteen years, starting when Fisher used to be a policeman at Pine Creek.  He referred to a conversation with Bob Fisher at Hayes Creek before Christmas 2001.  This occurred at Fisher’s store when Huddleston was filling up with diesel fuel and purchasing other supplies.  Fisher told him (in Huddleston’s words) ‘he found that maybe gold up there’ and also ‘I’ll give you money and I’ll give you that money on the side way and don’t let the Northern Land Council know that’.  Huddleston replied ‘If you want to do that, but better be careful, you know … from the Northern Land Council.’

3. Paddy Huddleston said that the next time he saw Bob Fisher was at Kybrook Farm.  Another person (identified as Bob Stroud) was with Fisher.  They stopped at Paddy’s house, then the three of them went to Lenny Liddy’s house nearby, where they joined up with Liddy.  Then Joe Huddleston drove up.  In an apparent reference to Bob Fisher, Paddy Huddleston said ‘ … we had a talk to him … and he got us to be sign that paper … and he – he did sign that paper but didn’t try to be complain (sic) about more detail, whatever he was written on the paper …’.  Mr Frith asked ‘When you say “complain”, do you mean “explain”?’, to which the witness answered ‘Explain, yeah’.  Joe Huddleston said that they were together at Lenny Liddy’s house maybe 40 minutes.

4. Lenny Liddy interposed - ‘He did tell me … there’s maybe something good on the mine.  He maybe give a little bit of money, you know … he was saying the three of us.  We were standing there when we signed that ….  Well, I said, if you’re going to give us the money, well that’s it, I said … what he thinking maybe royalty or something.’ (transcript, pages 21-22).

5. Lenny Liddy then gave further evidence.  He knew Bob Fisher when he was a policeman at Pine Creek.  Bob Fisher ‘and that bloke sitting next to him’ (identified as Bob Stroud) came to Kybrook Farm.  Paddy Huddleston and Bob Fisher were talking ‘about the mining and all this.’  Bob Fisher said to Paddy Huddleston ‘Oh, I don’t want none of the Northern Land Council know about this.’ (transcript, page 22).  Fisher also said ‘Oh, we’re going to test that ground’ (ie sample) … ‘out there in that mine there what he found … he told us he give us a bit of money on the side … then we signed the paper over then.’ (transcript, page 23).  In response to direct questions by Mr Frith, Lenny Liddy said that Bob Fisher did not say what was in the paper.  Liddy also said that he could not read.  He said Paddy signed first, then himself, then Joe.  Liddy identified his signature on the document dated 4 January 2002.  He said that Mohamed Douglas came from his house at Kybrook Farm whilst Bob Fisher was there, and he talked about drilling around the country for samples.

6. Joe Huddleston gave evidence.  Joe Huddleston first met Bob Fisher when he was a policeman at Pine Creek.  Joe was in trouble with him sometimes, as were a few other Wagiman people.  Fisher now has a shop at Hayes Creek.  Joe sees him when he goes fishing, maybe once a week, and pulls in there for fuel and other things (transcript, page 33).  On the day in question he had driven from Town Camp at Pine Creek to Kybrook Farm to talk to Lenny Liddy about going fishing at Douglas Hot Springs.  The two Bobs and Lenny and Paddy were already there.  They called him up.  Paddy and Bob said he needs to sign the paper.  They didn’t say anything else about it.  There were two pages.  He didn’t read the paper; doesn’t know how to read; he does know how to read his name and write it.  He saw the other names on the paper, but not his.  He said ‘the other Bob’ (Stroud) wrote his (Joe’s) name on the paper and asked him to sign, which he did (transcript, pages 27-30).  The document shows a handwritten addition ‘Signed – Joe Huddleston’, and Joe Huddleston’s signature appears beneath that.  Joe Huddleston said that the paper was not read to him; it was already signed by Paddy and Lenny.  He said that after he had signed it he was told by Bob Fisher that ‘What it say in that letter that if he find out what’s in the mine there, he would sort of pay out of the money to us on the side’ (transcript, page 32).  He was with the others for about 20 minutes.  He then left to go to Douglas Hot Springs.  The others were still there when he left.

7. According to Joe Huddleston’s evidence, Tony Kenyon is Warai, Robert Markham is Jawoyn, Gabriel Hazelbane is Warai, George, Paddy and Joe Huddleston are brothers and Wagiman (transcript, page 31).

8. Joe Huddleston was referred to the AAPA site map (Exhibit 2) to clarify the hunting area referred to as ‘there’ in paragraph 4 of his affidavit.  After the wet he does stock-work, but during the wet he is back at Pine Creek.  From there he goes fishing at Douglas Hot Springs, calling at Hayes Creek for fuel.  He indicated on the map the area where ‘we’ go hunting in the wet.  It is all of the area between the Stuart Highway to the west, the old railway line to the east, almost up to the Hayes Creek to the north, and down near the abandoned McDonald airstrip to the south.  (It is noted that the licence area, or at least the southern portion of it, lies within the northern portion of the area described by the witness.)  When it is wet two cars are left at the road and ‘we’ walk around in a big circle.  Sometimes the hunters are dropped off, and picked up further along.  There could be four or five married men, plus women and children.  Sometimes go out for more than one day.  There is fishing in creeks like Burrundie or Nobles, McKinlay, Grove Hill area, Margaret River (transcript, pages 34-37).

9. In answer to questions by Mr Frith about what he wants to happen with Bob Fisher and Bob Stroud about the exploration licence, Joe Huddleston indicated a desire for them to talk.  He appeared to have a particular concern about the creation of a dam, or the consequences of a dam overflowing in the wet and poisoning the water and trees and animals (transcript, page 39).

10. This point was pursued with Paddy Huddleston.  He referred to a big dam near Pine Creek, and the destruction of hunting grounds.  Wagiman don’t want that (transcript, page 40).  Mr Huddleston described the boundaries of Wagiman country, indicating that the licence area is within Wagiman country, and that Wagiman should sit down with the Land Council and make an agreement about ‘where the mine is … whatever the plans for something there, well they never been talking.  They might be get that exploration licence with the agreement …’ (transcript, page 45).

11. Lenny Liddy was asked what should happen with the exploration licence.  He said ‘I reckon you should tell Bob Fisher to go ahead and get that exploration licence’ (transcript, page 46) (but see paragraph [65] below).

12. Paddy Huddleston was referred to the statement at paragraph 3 of the document dated 4 January 2002 that he had travelled to the licence area with Bob Fisher and Bob Stroud and checked its location and boundaries, and relationship to sacred sites.  He said that this did not happen at any time (transcript, page 47).

13. Leave was given to Mr Stroud to cross-examine the group witnesses.  Mr Frith submitted that the use of leading questions should be limited as far as possible.  He referred to the statement by Olney J at paragraph 3.4 in the Kidman Springs/Jasper Gorge Land Claim report, referred to previously – ‘the usual right of a cross-examiner to ask leading questions is rarely exercised in dealing with Aboriginal witnesses, as experience shows that frequently little weight can be attached to the responses so obtained.’  I declined to give any direction that cross-examination be so limited, but indicated that the matter may be raised again if a specific issue arose.  Mr Stroud was informed that in any event the use of leading questions runs the risk of diminishing the value of answers received.

14. When cross-examined about decision making by the Wagiman and particularly whether Paddy, Lenny and Joe would be enough to make a decision about the objection, Paddy Huddleston said there were the three here (semble: Paddy, Joe and Lenny) and two sisters, and we would like to see them and the other Wagiman together with the Land Council and Bob Fisher and Bob Stroud to have discussions or make decisions about agreement (transcript, page 51).  He repeated that the contents of the document had not been explained.  Q: ‘Was it explained to you by us?’.  A: ‘No’(transcript, page 51).  He heard Mohamed Douglas explain about his work with ‘drilling … and all that’ for Union Reef, and agreed that Bob said the work in the licence area would be similar (transcript, page 52).

15. Joe Huddleston was cross-examined about the hunting and fishing areas.  Hunting took place in both dry season and wet season (transcript, page 54).  Every year.  Kangaroos, porcupine, bush tucker.  Fishing at Burrundie, also at Mount Wells which is Jawoyn country (his wife’s area – he goes with her).  Specifically, in the exploration licence area, they actually walk in, ‘we walk all that places’.  In dry season ‘it is green, find kangaroos, porcupines, bush tucker, covered with that’ (transcript, page 55). 

16. When asked whether the document was explained to him, Joe Huddleston said that the contents of the document were not explained properly.  He agreed that Mohamed Douglas explained what work he did at Union Reef ‘doing all those samples’.  When asked whether he understood the difference between mining and exploration, he indicated that one word was used for mining and exploration.  ‘ … it’s called mining if there’s exploration.’ (transcript, pages 56-57).

17. In cross-examination Lenny Liddy said he had understood what Mohamed Douglas was saying.  He was not sure whether he would be happy with exploration in the licence area (transcript, pages 58-59).  This is in contrast to what he said earlier – see paragraph [59] above.

18. Joe Huddleston was asked in cross-examination whether he would be happy if exploration were carried out in the licence area.  He indicated that they like to have all five of the senior Wagiman people together before they make decisions.  ‘The other two missed out, you know.’ (transcript, page 59).

19. To a similar question, Paddy Huddleston indicated that to answer he would need a meeting of all the Wagiman with the grantee party and the Northern Land Council.  ‘We would like to get you and Northern Land Council have a meeting with us.  That’s it.’ (transcript, page 59).

20. Joe Huddleston was cross-examined by Mr Lavery as to the various areas available for hunting and fishing.  These included areas west of the highway and well to the south and west of the licence area – such as Douglas Hot Springs, Butterfly Gorge, and McDonald airstrip.  Within the licence area there is hunting for kangaroos and porcupines.  There are springs there.  Lots of fish in the wet season.

21. In re-examination by Mr Frith, Paddy Huddleston confirmed that hunting also took place in the dry time east of the highway (transcript, page 70).

22. Both Mr Stroud and Mr Fisher gave evidence for the grantee party.  Bob Stroud said that he and Bob Fisher in partnership intended to liaise with all parties involved in the area and to observe the regulatory requirements, to have acknowledgement and signatures before proceeding with any exploration operations (transcript, page 71).  He said Paddy Huddleston had indicated that the objectors’ primary area of interest was the area west of the Stuart Highway, including all the area behind Pine Creek, Claravale, and all the area around Butterfly Gorge, Oolloo and Douglas Hot Springs.  All the land west of the old railway is Wagiman country.

23. Bob Stroud said that as to the conversation on Saturday 5 January, from previous conversation between Paddy Huddleston and Bob Fisher, there appeared to be no problem in the application for an exploration licence or the objection to it.  ‘During that (the meeting at Kybrook Farm) we explained to them the pre-written letter that we’d brought down, which outlined what we were to do, and requesting that if, as they said, they were happy to withdraw the objection that they’d sign to say they would withdraw.  We, at that time, did not include Joe Huddleston’s name on the letter as we took it that he was in opposition to us exploring the area.’ (transcript, page 73).

24. Bob Stroud went on to explain the role of Mohamed Douglas.  ‘With the help of Mohamed Douglas we explained everything.  As a number of them are unable to read or write, we explained what our intention was and we had Mohamed Douglas also explain what was involved in exploration, and the area involved specifically, and what was our intention.  At the time, Paddy was happy that we carry out exploration and acknowledged the fact that it we did find or prove anything of value, that we would have to make application for mining claims, mining leases, and we would have to negotiate with them and all the parties with interests in the area before getting them granted.  It was during the course of the explanations by Mohamed Douglas that Joe acknowledged that he understood also, and it was requested that he put his name on the document and sign it as well.  It was at that stage that Joe wrote his own name on and then signed.’ (transcript, page 73).  Bob Stroud added that Joe requested this himself.  It was Bob Stroud’s belief that all of the parties at the meeting understood the operation of exploration and what the grantee party’s intentions were in respect of the application.

1. In cross-examination Bob Stroud stated that he had met Paddy Huddleston only once before 5 January – back in 1997.  He had not met Joe Huddleston before that day, and had met Lenny Liddy before only in about 1995/1996.  He had prepared the document dated 4 January, based on what Paddy Huddleston had indicated (ie, to Bob Fisher).  After the others had signed the document, at a later time not in their presence, Bob Stroud and Bob Fisher signed as witnesses.  The list of names had been placed on the prepared document without knowing whether they all had an interest in the area, and it is since then that he has become aware that the Wagiman are the only ones covering the area west of the railway line.  He had understood that Lenny Liddy and George Huddleston agreed with the wishes of Paddy Huddleston, but he had no idea about Tony Kenyon, Markham or Hazelbane.

2. Bob Stroud said that he did not hear Bob Fisher say that he’d give money on the side and that there was no need to go to the Land Council (transcript, page 76).  He was aware that ‘Wagiman had instructed the NLC, from the objection only, and that Joe Huddleston had given instructions to the NLC.  I wasn’t aware that Paddy or anyone else, other than the objection.’ (transcript, page 77).  He was aware of the native title application, that the applicants are the same people as written at the bottom of the document dated 4 January, that the application is in the Federal Court, and that letters had been received from the representatives of the native title party in the objection, being Mark Rumler, the solicitor instructed by the Wagiman in the objection (transcript, page 77).  ‘Paddy Huddleston indicated his willingness for us to proceed in the area, so we went to them … We didn’t see a reason to go to the solicitor for the objectors’ (transcript, page 78).

3. Bob Stroud said that the document was explained twice – once when read by him, and once when explained by Mohamed Douglas.  Mohamed read the document through to himself, then explained it to the others what the intention was for exploration.  Bob Stroud was the only one who read it aloud.  He started reading from paragraph 1.  A map was laid out on the ground for reference, showing the highway and the application area.  The map was passed around.  A number of women were also present.  Bessie Coleman, Beryl Smith, Maureen Smith, Hilda Lee, Carol Smith.  The explanation by Mohamed Douglas took maybe 15 minutes.  We were there for a good 40 minutes, maybe longer.  Lenny was asked whether he had any questions.  He said no.  Joe was asked whether he understood what Mohamed said.  He said yes.  Joe printed his own name and then signed.

4. Bob Stroud said that paragraph 3 of the document about Paddy Huddleston travelling to the area was a mistake.  It should have been crossed out.  When paragraph 3 was read out, Paddy said he knew the area quite well and did not need to go there.  Mr Stroud said that he ‘inadvertently forgot to cross it out’ and ‘I didn’t think the corrections were required’. (transcript, page 88).  He agreed in cross-examination that he sought to rely on the document as evidence that the objection was withdrawn.

5. In cross-examination by Mr Lavery, Bob Stroud marked various places on the AAPA site map (exhibit 2).  These were East Margaret Diggings (immediately adjacent to the west boundary of the licence area), the old railway line (to the east of the licence area), the old McDonald airstrip (to the south-east of the licence area), Oolloo Station (off the map to the south), Douglas Hot Springs (south of Hayes Creek and West of McDonald), Umbraraawarra Gorge (south-west of Pine Creek), Claravale Station (off the map to the south), Butterfly Gorge (west of McDonald), Hayes Creek (on the Stuart Highway west of the licence area).

6. Bob Stroud stated that exploration activities would only be carried out in the dry season, due to impossibility of access in the wet season.  He added that apart from wet-season run-off, he was not aware of any long-term waterholes or natural springs within the boundaries of the licence area.

7. Mohamed Desmond Douglas was called by the grantee party.  He lived at Kybrook Farm, and was employed as an offsider for a mechanic in the workshop.  He said that at the discussion he had a quick glance at the ‘letter’ (document dated 4 January).  Read part of it, not all.  ‘It was just for exploration and I was telling the old people about exploration, because I used to work in exploration for four years, and I was just explaining to the old people about exploration and how it works and how it goes and what the operation is.’ (transcript, page 99).  He said that there was a map there, and Bob Stroud pointed out all the areas, the exact location.  ‘They wanted to know how far it was and where, and I explained as much as I could to them about the map.’ (transcript, page 99).  He also said ‘ Because some of the old people, they just think exploration is the big mine, and I sat down with them and I told them from what they do, how they sampled, how they do the things, how the whole operation works.’ (transcript, page 100).

8. When asked what happened next, he said that he told Paddy, Joe and Lenny ‘Its not up to you three.  You’re better off just getting the clan, whole clan together, and I also told that to you two guys as well (Messrs Stroud and Fisher), to come back another day.’ (transcript, page 100).  And further, ‘ … I said to these guys, “Its not worth coming to see three or four people, you might as well see the lot of them while you’re down here, so make arrangements to come down and meet the whole Wagiman association.”’ (transcript, page 101).  He then left, and was not present when signatures were given.

9. In cross-examination by Mr Frith, he said he knew Bob Fisher from the roadhouse, but had not met Bob Stroud before.  He had just wandered over from his house when he saw the group.  ‘I thought they were lost or something or they wanted something in the workshop … and then they were talking about exploration and I sat down.’ (transcript, page 102).  He was there between 10 and 20 minutes, he supposed.  He had worked for Acacia Resources for about 2 years just on exploration work.  Can’t say whether when he looked at the paper was before or after he talked about exploration.  ‘I just gave them a quick briefing, you know.  Like – like what happens, like there’s not going to be big machinery there knocking down all the trees and that.’ (transcript, page 104).  He just had a look at the ‘headline and all that’ (transcript, page 104).  He ‘thought’ he saw Bob Stroud reading the paper out loud to everybody.  ‘I know he showed them some paperwork and was talking or reading it’ (transcript, page 105).

10. Robert Fisher then gave evidence.  In approximately 1983/1984 he worked at Pine Creek police Station as a local constable.  He said that he got to know Paddy, Joe, Lenny and a lot of people at Kybrook Farm.  There was a good relationship, even though on several occasions he arrested people for drunk driving.  A copy of the objection notice was received from the Northern Land Council.  Paddy used to come to the hotel, and he spoke to him about the application.  Paddy’s name was at the head of the list.  Paddy said he didn’t want to have anything to do with the licence area, and he had told this to the Northern Land Council, but it wouldn’t take any notice of him.  ‘Several other times Paddy and Joe came into the hotel and, every time they came in, they asked me when we were going to start mining.  I explained to Paddy.  I said we couldn’t while there was an objection, plus the leases hadn’t been granted yet until the objections are either withdrawn or sorted out through Native Title.’ (transcript, page 107).  He said that on several visits Paddy Huddleston repeated the lack of interest in the area, and referred to other areas in which there was interest, and he (Fisher) repeated the reasons why he could not proceed.  Then Paddy Huddleston invited him down to Kybrook Farm.  Paddy said ‘You come down and have a meeting with us over that land’ (transcript, page 107).  Bob Fisher said he got his partner to draft a letter, and they went to Kybrook Farm.  ‘We showed them the letter and we explained everything to them.  Mohamed Douglas got involved with us.  He had a look at the letter.  He’d been involved in exploration in that area and he explained to Paddy and Joe and Liddy what exploration was all about, and if we wished to have a meeting with the rest of the clan, that was his advice to Paddy, was to talk to the rest of the clan.  And Paddy said, “Everything’s okay.  We’ll have – we sign the letter and then we can get Bob to do the exploration.”’ (transcript, page 108).

11. Bob Fisher testified that Paddy Huddleston said ‘To do exploration in that area, that Northern Land Council said you got to put that money up front’.  Bob Fisher explained that he could not afford three Toyotas up front if there was no gold.  Paddy Huddleston agreed that there would be no money for exploration but they both agreed there would be money for royalties if mining went ahead.  ‘Then we would talk to the Aboriginal people and do – and do it, strike a deal, on a percentage basis of the gold.  He agreed with this.’ (transcript, page 108).

12. Bob Fisher described the credit arrangements at Hayes Creek Hotel.  Mr Frith explored the arrangements at some length.  ‘There was no payment of anything to get Paddy to sign anything or to do anything on the leases’ (transcript, page 108).  There are credit arrangements with many customers, including Aboriginal people.  Paddy Huddleston has been given credit for about three or four years.  He doesn’t book up a great deal, and he has always paid the account.

13. When cross-examined by Mr Frith, Bob Fisher said he had been a policeman for eight years altogether, including two years at Pine Creek during 1983/4.  He then went to Oenpelli for three years.  After that he bought the Hayes Creek Wayside Inn, and it was a couple of years later that the Aboriginal people started coming in to the hotel.

14. He denied that he had said to Paddy Huddleston that he didn’t want to involve the Land Council (transcript, page 110).  There was an occasion before bringing the letter down to Kybrook Farm that a map of the area was brought down and shown to Paddy Huddleston, and there was talk about royalties.  Paddy asked about who gets the royalties.  We said that the Northern Land Council gets the royalties and distributes them between the Aboriginal people.  Paddy Huddleston indicated that the community is poor, does not get enough, and needs more.  Fisher said ‘Well, we can deal with you direct with this land, and we can pay you direct for this land’ and he agreed with that (transcript, page 111).  Mr Frith asked ‘So you’re using royalties in the sense that – under the Land Rights Act?’.  Mr Fisher replied ‘Well, I don’t know if royalty is under the Land Rights Act or not, but I know that mining companies pay royalties to Aboriginal people for their use of the land.’ (transcript, page 111).

15. Bob Fisher was asked by Mr Frith about his knowledge of the members of the Wagiman clan.  He knew that Paddy and Joe Huddleston, and presumably George Huddleston (their brother) were Wagiman.  He was not sure about Lenny Liddy.  He believed Tony Kenyon, Gabriel Hazelbane and Robert Markham were not Wagiman.  He agreed that at the meeting Mohamed Douglas had advised that they should have a meeting with the Wagiman clan.  He did not know who those people would be.  ‘I was led to believe that Paddy was the traditional owner and the head spokesman, nominated spokesman, for the Wagiman tribe, and that’s all I thought I had to deal with’ (transcript, page 112).

16. Bob Fisher said that he believed that Paddy Huddleston could not read, and both Lenny Liddy and Joe Huddleston said that they could not. (transcript, pages 113-114).  The paper was shown to Paddy, and it was ‘read out’ several times.  Questioning by Mr Frith established that there was not a literal reading of the words of the letter, but statements as to the substance of it.  ‘I didn’t read it out in context to him, I read out the – the idea of what the letter contained in terms that I understand, working with the Aboriginal people for a period of five years, that they would understand what I was talking about’ (transcript, page 113).  The gist of what was said was along the lines – ‘We been talking about exploration and mining in the course of that exploration lease and other leases that we’ve been granted and you’ve asked to come to Pine Creek.  We are here, we’d like to talk about this letter.  This is a letter withdrawing the objections of what Joe has said to the Northern Land Council and sign that – that affidavit for an objection for us to any exploration or mining – its not exploration, it was mining – and that we’re down here today to talk about this.  This is a letter that we’ll ask you to sign, if you are happy with it, about us doing exploration in the district.’ (transcript, page 113).

17. Bob Fisher was aware that the objectors had a solicitor representing them.  When he was a policeman he had approached defendants directly when he knew that they had solicitors.  By inference, it appeared that he saw no problem in that.

18. Bob Fisher was referred to the suggestion by Mohamed Douglas about having a meeting with all the Wagiman, and asked why he did not go on and do that.  He replied ‘We haven’t even thought about it because of this meeting we’ve called down here and other meetings we’ve had in Darwin.  We thought that would be just a course of the action in the – in the terms (? sic: times) to come’ (transcript, page 116).  He would be prepared to go to such a meeting.

The ‘on-country’ hearing – submissions

1. Prior to the conclusion of the hearing the matter of final submissions was discussed.  Mr Lavery indicated that if the objectors sought to contend that the grantee party ought not have approached the objectors directly in the absence of their legal representative, then the government party would desire the opportunity to reply, to uphold the entitlement of a self-represented grantee party (as distinct from a legal representative) to approach objectors directly.  The objectors’ submissions dated 3 May 2002 did take the point that the signatories were ‘given no opportunity’ to obtain independent advice (submissions, paragraphs 15(v), 36, 37 to 41, and 54(b)).  The government party however, did not further address this aspect in its ‘final contentions’ dated 2 May 2002, the ‘final reply’ dated 15 May 2002, or the ‘addendum to final reply’ dated 21 May 2002.  Nor did the grantee party address the point in its submissions dated 10 May 2002.

2. In fact the contentions of the government party dated 2 May, 15 May and 21 May 2002 did not address the evidence given concerning the circumstances of the meeting at Kybrook Farm on 5 January 2002. Instead, the contentions focussed almost completely upon evidence of activities relevant to the criteria in section 237 of the Act. The contentions of the grantee party dated 10 May 2002 sought to establish the adequacy of the consultation on 5 January, without tackling the issue of independent advice by a known legal representative.

3. The submissions dated 3 May 2002 on behalf of the objectors addressed events leading to the meeting on 5 January 2002, and the conduct of that meeting, in considerable detail.  The basic contentions were that:

   (a)the document dated 4 January 2002 and associated material based upon it should not be received in evidence, that is, the grantee party should not be entitled to rely upon the document;

   (b)alternatively, if the document were received in evidence, then it cannot be taken as withdrawing the objection.

1. The contention of the objectors that the document should not be received in evidence was put in several ways:

   (a)it would be unconscionable and inequitable for the grantee party to be able to rely on a document obtained in the circumstances in which the document was obtained, namely the unmeritorious conduct of one of the parties, including knowingly making use of an advantage over another party;

   (b)the contents of the document cannot be relied upon, because the circumstances in which the signatures were obtained give no assurance that the document reflects the wishes of the native title party as a group.

2. Arguments put in favour of the above contention include the inability of the signatories to read (and the grantee party’s knowledge of that), their lack of schooling, that English was not their first language, the promise of direct payments of money (albeit for mining, not exploration), the opportunistic nature of the meeting at Kybrook Farm, the document prepared in advance, the relatively short discussion, the limited nature of the explanation by Mohamed Douglas, inadequate explanation by the grantee party, error as to inspection of the licence area in the document as signed, no opportunity to take independent advice, previous association with Bob Fisher when he was a policeman (inferences as to him still being an authority figure), the extension of credit by Bob Fisher at the Hayes Creek Roadhouse (inferences as to financial influence), imbalance in commercial and legal experience which the grantee party ought to have been aware of and which should have been balanced by independent advice.

3. The contention of the objectors that if the document were received in evidence, it cannot be regarded as a withdrawal of the objection, was put on the basis that:

   (a)the objectors were the registered native title claimants, or the native title claim group, or the whole of the Wagiman people;

   (b)the document is admittedly not accurate in paragraph 3;

   (c)the document does not reflect the intention of the signatories, according to the evidence given at the hearing, let alone the intention of the objectors as a whole;

   (d)of the named objectors, only Paddy Huddleston and Lenny Liddy signed the document;

   (e)all the Wagiman make decisions together; the grantee party needed to talk to all the Wagiman; the grantee party knew this (before the signatures were given);

   (f)the evidence of Joe Huddleston confirmed and expanded upon much of the content of his affidavit dated 11 December 2001 filed in support of the objection.

4. Extensive transcript references were given in support of the above contentions.  There is considerable evidentiary support for many of them.

Conclusions concerning withdrawal of objection

1. A substantial proportion of the evidence concerning events leading up to the meeting held on 5 January 2002, and the events of that day, is common ground.  On the other hand, there are substantial differences as to significant aspects of the evidence.  In particular, these concern discussion about payments and the basis of them (both before the meeting day and at the meeting) and the nature and extent of explanations about the document at the meeting.

2. It would be easy to describe the evidence given at the hearing as containing ‘revisions’ of events, shaped to support one view or another.  In my view, having had the benefit of seeing and listening to all of the witnesses, such an assessment would be too simplistic and not accurate, on the whole.  To a large extent differences can be attributed to the normal difficulties that witnesses have in recalling the precise details of events, even recent ones.  All the more so, when one considers the disadvantages that burdened these particular Aboriginal witnesses when seeking to comprehend complex matters dealt with and discussed in the English language, rather than the Wagiman language.  I am sure that there was considerable scope for misunderstanding, or incomplete understanding, of issues.  But that is the point that needs to be addressed.  In the circumstances, was there really an informed decision to withdraw the objection?

3. Paddy Huddleston and Bob Fisher are key players in these events.  It is clear that there were discussions between them from time to time at the Hayes Creek Roadhouse about the progress of events.  Whilst accounts of detail might differ, there was some form of discussion about the possibility of direct royalty-type payments in the event of the establishment of a mining operation after successful exploration.

1. The Standard Exhibit also contains extracts from, or references to, provisions of the mining legislation that are applicable to the grantee of an exploration licence.  They include the following:

   (1)Section 24 of the Mining Act.  This provides that the licensee will:

   (b)     not extract or remove more material than amounts for authorised sampling purposes;

   (j)     conduct activities in such a way as not to interfere with existing roads etc or the lawful activities or rights of any person on or in relation to land adjacent to the licence area;

   (k)     not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory, except in accordance with that law.

   (2)Section 24A.  This gives the Minister general powers additional to those derived from sections 24 and 166, to impose conditions in an exploration licence.  This section provides a statutory foundation for the conditions in the Second Schedule.

   (3)Section 166.  This imposes general conditions upon various tenements, including exploration licences.  Of particular note is subsection 166(1A), effective 1 January 2002.  It provides that all exploration licences are granted subject to the condition that the holder of the licence must also hold the relevant Authorisation before carrying out on the licence area any exploration operations or works involving substantial disturbance.

   (4)Sections 35 to 37 of the Mining Management Act 2001, effective 1 January 2002. These provide a scheme for regulation of substantial disturbance, replacing the regime previously contained in conditions (e) to (g) in section 24 of the Mining Act.  For the purposes of this Act, ‘mining activity’ by definition includes exploration for minerals, and corresponding definitions apply:

   -       Section 35(1) provides that the operator for a mining site must not carry out mining activities on the site unless it has first been granted an Authorisation.  However, section 35(5) provides that section 35 does not apply to the carrying out of exploration for minerals unless it is to involve substantial disturbance of the surface of the site.  If substantial disturbance is contemplated, then a mining management plan must be submitted (section 35(3)).

   -       Section 36(2) provides that before the Minister may grant an Authorisation, he must be satisfied that the management system will promote protection of safety and health of persons and the environment on site, and that the management of the mineral resources will be in accordance with good mining practice.

   - Section 37(1) provides that an Authorisation may be subject to conditions specified.

2. The evidence of the government party also includes the affidavit of Timothy Milne Gosling (5 December 2001) and the extensive annexures to it, originally tendered by the government party in objection inquiry DO01/13, and included in the ‘generic’ material provided in the present matter.  The affidavit is referred to in the memorandum listed at paragraph [159(6)] above. Mr Gosling’s affidavit was sworn before the legislative changes that operate as from 1 January 2002.  It deposes to the processes under section 24(e) of the Mining Act for approval of activities likely to result in ‘substantial disturbance’.  These processes were aimed at minimising damage, and provided for rehabilitation.  As from 1 January 2002 a more comprehensive substantial disturbance regime has been in place, by virtue of the Authorisation process set out in the Mining Management Act 2001 (NT).

3. Within the material referred to above concerning the regulation of activities pursuant to an exploration licence in the Northern Territory, there is particular significance in the provisions, terms and conditions designed to protect native title rights and interests, including requirements added since 1 January 2002.  Not only are these controls applicable, but also active steps are taken by the government administration to bringing them to the notice of a grantee party.  Certainly following this inquiry the grantee party in this matter could not profess ignorance of them.

4. In the context of sections 237(a) and 237(b), Condition 1 of the Second Schedule is particularly important. It sets out a general obligation upon the grantee to minimize interference with traditional community or social activities, or interference with areas or sites of particular significance. Against that background, the conditions relating to consultation (condition 6) and resolution of complaints (condition 25) take on added significance. The provisions of conditions 1, 6, 7, 8, 18, and 25 of the Second Schedule are all specifically directed to the protection of native title rights and interests. In addition, the rest of the conditions also serve, directly or indirectly, to prevent or minimize interference with community or social activities, or areas or sites of particular significance. The effect of legislation directed specifically to sacred sites is considered in relation to section 237(b), but to the extent that there are physical activities associated with areas or sites, then legislation directed to protection of sacred sites tends to facilitate physical activities associated with them.

5. In Arthur Que Noy and Others/Robert Michael Biddlecome/Northern Territory, NNTT DO01/114, 19 July 2002 at [32], Member Sosso states:

   The regulatory regime in force in the Northern Territory contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities.  …. the cumulative effect of the various provisions in the Mining Act is such, that it is possible to infer that there is a comprehensive and well integrated legal regime which is aimed at preventing (as far as is practicable) interference with community or social activities by explorers. While this regime does not render otiose an assessment pursuant to section 237(a), nevertheless the existence of such a regime is an important factor to be considered when making a predictive risk assessment …

I respectfully adopt those observations.

Presumption of regularity:  government party

1. There is no reason to doubt that the views put in Mr Gosling’s affidavit (referred to in paragraph [161] above), attesting to the effectiveness of the substantial disturbance regime before 1 January 2002, are equally applicable to the regime in place since then.  Furthermore, as noted by Deputy President Franklyn QC in Gabriel Hazelbane and Others/Northern Territory/Rodney Johnston, NNTT DO01/40 and DO01/41, 27 March 2002 (‘Gabriel Hazelbane’) at paragraph [16]:

   It must be assumed that the Minister and Secretary will administer their obligations under the Acts in accordance with the terms of the Mining Act and Mining Management Act and the philosophy of the Mining Act as apparent in sections 24, 24A and 166 of the Mining Act, and sections 35 to 46 of the Mining Management Act.  The presumption of regularity applies.

I respectfully adopt this approach.  There is no evidence in the present inquiry sufficient, in my view, to rebut the presumption of regularity with respect to the grant of the proposed exploration licence and the subsequent supervision of operations.

Presumption of regularity:  grantee party

1. With respect to the observance of the statutory and administrative regime imposed upon a grantee party, in this matter the grantee party has provided a Statement of Character and Contentions dated 4 December 2001.  The substantive text is 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 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 this area.

   We fully support the NT Governments “Dept. of Mines and Energy/Dept. of Business, Industry and Resource Development” Contentions as outlined in their document DO01/62 – ELA 10172 22^nd November 2001.

The statement is signed by Bob Stroud.

1. In the ordinary course of events the Tribunal is entitled to assume that the grantee party will act lawfully and consistently, and that it will give effect to its stated intentions.  However, presumptions of legality and continuity are capable of rebuttal in appropriate circumstances.

2. The value of the grantee party’s statement of practice and intentions in the present matter needs to be considered in the context of the findings in this determination concerning the circumstances in which the document dated 4 January 2002 came into existence and was signed by Paddy Huddleston, Lenny Liddy and Joe Huddleston.  A presumption of regularity in the future observance of obligations is not to be adopted without consideration of these circumstances.

3. I take into account the following factors:

   (a)The findings set out in this determination concerning the document dated 4 January 2002 are likely to put all parties on notice concerning the need for real care and attention in relation to regulatory obligations in this matter.

   (b)Condition 6(b) in the Second Schedule as to consultation with native title parties requires the Licensee, prior to commencement of exploration activities, to give written notice of a meeting not only to the registered native title claimants, but also to the representative body (in this case the Northern Land Council).

   (c)Condition 6(c) requires the Licensee to have regard to representations regarding any aspect of the exploration activities.

   (d)This should provide an alert NLC with the opportunity to become involved and to ensure that the interests and concerns of the native title claimant group are fully taken into account and respected in the implementation of any proposed exploration program.

   (e)Condition 25 provides a complaint mechanism if exploration activities are being conducted in a manner that adversely affects native title rights and interests in the area.

   (f)As a result of the on-country hearing in this matter the grantee party must be aware that the spotlight is now well and truly upon it with respect to compliance with all regulatory requirements.

4. On balance, it is considered likely that the grantee party will strenuously endeavour to meet all of its statutory and regulatory obligations with respect to the native title claimant group.  This assessment is not based upon presumption, but upon the factors listed above and the chastening effect of recent events.

Conclusion as to section 237(a)

1. In Smith v Western Australia (2001) 108 FCR 442 at 451 French J states that interference:

   must be substantial in its impact upon community or social activities.  That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.

2. It is accepted that there is some evidence of community or social activities on the licence area within the meaning of section 237(a), relating to hunting, gathering bush tucker and (in the wet season) fishing. There is also some evidence of teaching children about country (transcript, pages 54-55, 68-69).

3. Whereabouts and when upon the licence area these activities take place is less than clear.  It may be more or less over the whole area, given the relatively small extent of the proposed tenement – approximately 9.5 kilometres north/south by approximately 3.5 kilometres east/west.  It may be that in the wet season the emphasis is upon the south-western portion, to which there is more ready access by foot from the Stuart Highway.  It may be that at times the activities are in the northern or north-east portion, in conjunction with visits to Jawoyn country beyond there, possibly with access from the Grove Hill road and along the old railway corridor.

4. The map of previous exploration activity and attached schedule, included at Attachment ‘A’ to the final contentions of the government party, illustrates that exploration between 1983 and 1996 has virtually covered the whole of the licence area, and has also been extensive in the immediately adjoining areas to the east and west.  Yet the evidence, either in the affidavit or oral testimony, contains no complaint that this past exploration activity (or indeed, mining activity), has in any way interfered with community or social activities.  As to the future, paragraph [12] of the affidavit states that ‘If white fella go there and damage country maybe they damage the water’.  This is more likely to be apprehension about mining than exploration, and is not at all specific about location.  What the affidavit does point up, at paragraphs [11] to [14], is the need for consultation and discussion about proposed exploration activity, both as to nature and location.  Should exploration activity (which will be confined to the dry season – transcript, page 94) temporarily impede traditional activities at any particular place, then during that period there appear to be other areas available within the licence area, and in addition extensive areas outside the tenement to the south and west are available to the Wagiman members of the native title claim group, and an area outside the tenement to the north east is available to the Jawoyn members.

5. Importantly, the legislative and administrative regulatory regime now in place to control the conduct of exploration activities is designed to avoid or minimize any adverse impact with respect to all of the criteria provided by section 237. This regime cannot be regarded as an automatic and perfect safeguard, but in the absence of some particular circumstance revealed by the evidence, the consultative processes and presumption of regularity as to the enforcement of the regime by the government party serve to render unlikely the occurrence of substantial interference within the meaning of section 237(a). I incorporate by reference the observations about the effect of the regime set out in Billy Coolibah and Others on behalf of the Gurdanji and Garawa Peoples/Ashton Mining Limited/Northern Territory, NNTT DO01/61, Member Williamson QC, 5 December 2002 at [33] to [37], and Billy Coolibah and Others/Ashton Mining Limited/Northern Territory, NNTT DO01/57, Member Williamson QC, 21 October 2002.

6. I find that there are relevant community or social activities by members of the native title claim group upon a significant part of the licence area, amongst other places within the local region.  However, I also take into account the fact that there is no Aboriginal community located on the licence area, the absence of evidence about interference with traditional activities caused by extensive exploration over a lengthy period of time in the past, the comprehensive requirements of the statutory and administrative regulatory regime for the conduct of exploration activities in the Northern Territory, the presumption of regularity as to the application of the regime by the government party, and the likelihood that the grantee party will seek to observe the requirements of the regulatory regime.

7. On the evidence and having regard to the above considerations, I am satisfied that there is not any real chance or risk that the proposed act will 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 or waters concerned. I find that it is an act attracting the expedited procedure within the meaning of section 237(a) of the Act.

Section 237(b): Areas or sites of particular significance

1. The issue is whether the proposed act is likely to interfere with an area or site of particular significance in accordance with the traditions of the native title claim group.

2. 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 respectfully agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.

Identification of sites

1. Exhibit 2, submitted by the native title party at the hearing on 16-17 April 2002, is the AAPA map showing sites recorded at 7 December 2001. It does not show any recorded site within the licence area. It shows a number of sites in the region surrounding the licence area. At the hearing Mr Frith conceded that there is no site of particular significance, within the meaning of section 237(b), in the licence area (transcript, page 38). This is plainly a correct concession, in that no evidence of any such site has been submitted.

1. The objection application (Form 4) lodged by the native title party, attachment ‘A’, paragraph 6, states:

   there are seven recorded sites in the vicinity of ELA 10172, although there are many more in the wider area.  These sites include three sites within 5 kms, as follows:

   5270-36Lagulin;

   5270-37Jirditj; and

   5270-45Garramben/Nyaporr

   In addition, unrecorded sites and/or Dreaming tracks may exist in the ELA area …

2. The schedule of site details attached to the AAPA site map gives further details as to the above sites (including alternative names)

5270-36Red-eye Pigeon (Margaret River).  Raised rock outlier with two prominent peaks located east of the Stuart Highway 10km south-west (sic: south-east?) of Hayes Creek.  Status 40.

5270-37Quail (Margaret River).  Small round pool on eastern side of the Stuart Highway.  Status 40.

5270-45Garramben (AKA Nyaporr).  Spring (under dam), billabong, round hill and ridge behind Emerald Springs roadhouse.  Status 30.

1. The affidavit of Hugh Joseph Bland (30 November 2001) tendered in NNTT DO01/13 and included in the ‘generic’ material, explains the meaning of the status code used by AAPA.  Status 10 indicates that the AAPA has become aware of the existence of a site, it is recorded, and deemed to be significant according to Aboriginal tradition, but has not been evaluated or placed on the Register.  If research then indicates that a site is not a ‘sacred site’, it is downgraded to a status of less than 10.  Status 12 indicated that the site is recorded, not yet registered, but that research has tended to confirm the location and establishes the significance of the site.  Later steps will see the status continue to rise as the site passes through stages of the registration process.  Status 40 indicates a registered site.

The statement of contentions of the objectors dated 18 December 2001 states:

51.  There are areas or sites of particular significance that the grant of the exploration licence is likely to interfere with:

a.Lagulin is outside the licence area but is likely to be affected by polluted water flowing from the licence area [affidavit of Joe Huddleston [14]];

b.There are areas of particular significance inside the licence area which the Wagiman should help the Grantee Party avoid.  There are spirits of the Wagiman who have passed away in the country [affidavit of Joe Huddleston [11] and [12]];

52.    The particular significance of these sites identified by the evidence is:

a.Lagulin (AAPA site 5270-36) is a red eye pigeon dreaming site [affidavit of Joe Huddleston [14]];

b.There are areas of particular significance where, if white people are not introduced to the country they will get lost and sick there.  If Wagiman introduce them to the country in their language they will not get sick.  Wagiman might get into trouble from the spirits of the old people who passed away for letting other people go there without being introduced there [affidavit of Joe Huddleston [11] and [12]].

1. There are no dreaming sites in the licence area (affidavit, paragraph [10]).  Lagulin (Red-eyed pigeon dreaming site) is approximately 4 kilometres west of the western boundary of the licence area.  It is close to the Stuart Highway.  Concern is expressed that polluted water from the licence area might go to Lagulin (affidavit, paragraph 14).  According to the grantee party’s reply dated 28 January 2002, Lagulin is located in the Margaret River catchment area and is not influenced by the East Margaret catchment where ELA 10172 is located.  In any event, the concern is one relevant to mining activity rather than exploration.

2. The concern about proper respect for the spirits of old (deceased) people, and about ‘white fella’ sickness if not properly introduced to country (affidavit, paragraphs [11] to [13]), is expressed in general terms, rather than with reference to any particular site or area.

3. I accept Mr Stead’s evidence that the AAPA Register is not necessarily conclusive as to whether or not a sacred site exists within any given area: the commentary by the AAPA accompanying its map underlines that point. Nevertheless, for the purposes of section 237(b), there must be evidence to demonstrate not only the existence of an area or site, but also why it should be regarded as of ‘particular’ significance.

4. One must be conscious of a possible reluctance by members of a native title claim group to give detailed information about the location and nature of important areas and sites to persons outside the group. This can present a difficulty, given the terms and legal requirements of section 237(b).

5. 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, NNTT WO98/125, 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].

6. The contentions of the native title party present an alternative argument (paragraph 53(b)) that all land and waters are significant, and the named area or site is of particular significance in comparison to other land or waters.  I do not accept this blanket assertion.  Plainly the legislation is drawing a distinction between areas and sites that are of ordinary significance, and those that are of special, or more than ordinary, significance in traditional terms.  See Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 34 per Carr J. It will be a question of fact as to whether a particular area or site is of particular significance, and that must be established by evidence, not mere assertion.

7. It has been accepted by the Tribunal that an area or site that is not located on the licence area may still be relevant.  However, evidence must reveal that the exploration activity is likely to interfere directly and physically with the area or site.  See Moses Silver per Member Sosso at paragraphs [34], [35], [88] and [89].

Interference with sites

1. The generic evidence and opinions tendered by the native title party through Mr Stead, Mr Foy and Mr Firth are necessarily expressed in generalities.  They do not address the specifics in this matter of whether there is ‘likely’ to be exploration activity on or near, or affecting, the sites outside the licence area identified in the AAPA material.

2. On the evidence it seems remote that in the ordinary course of events, activities on the licence area, or if it be relevant, associated activities off the licence area, are likely to interfere with any site identified in the AAPA material or in Mr Huddleston’s affidavit.

3. There is a further safeguard.  The conditions of the proposed exploration licence will trigger an enquiry and consultation process, both within and outside the provisions of the Sacred Sites Act.  See particularly conditions 1(b), 6, 7, 8 and 25 of the Second Schedule.  In addition, Part IV of the Sacred Sites Act provides for offences, penalties and processes in the event of unauthorised work on or use of a sacred site, whether or not the site is registered or recorded.  There is a defence based on lack of reasonable grounds for suspecting that a sacred site was there, however, in addition to any legal obligations, for reasons that have already been set out it is likely that the grantee party will engage in consultation with the native title party and take into account their concerns.

Conclusion as to section 237(b)

1. On the evidence and having regard to the above considerations, I am satisfied that there is not any real chance or risk that the proposed act will interfere with areas or sites of particular significance, in accordance with their traditions, to the native title claim group. I find that it is an act attracting the expedited procedure within the meaning of section 237(b) of the Act.

Section 237(c): Major disturbance to land or waters

1. The issue is whether the proposed act is likely to involve major disturbance to any land or waters concerned, or create rights whose exercise is likely to involve such disturbance.

The native title party contends that this will be so, and that therefore the act is not one that attracts the expedited procedure.

Criteria:  ‘major’ disturbance

1. The Tribunal has previously discussed the criteria applicable to section 237(c), and I have done so in Billy Coolibah.  At paragraph [101] of that Determination the following is stated:

   The key to section 237(c) is the concept of ‘major disturbance’, whether the first or second branch of the section is applicable. This expression was considered by the Full Court of the Federal Court in Dann v Western Australia (1997) 74 FCR 391. It held that the interpretation of the expression is a question of ordinary statutory construction. In Gabriel Hazelbane Deputy President Franklyn summarised the views of the Court [and expressed his own conclusion] as follows:

   As Wilcox J observed, the word ‘major’ is an adjective of degree which requires the Tribunal, in determining whether a given envisioned disturbance is ‘major’, to make a value judgement, giving the term ‘major disturbance’ its ordinary English meaning, considering the matter of degree from the viewpoint of the community generally, its effect on local people being particularly important.  Tamberlin J observed that there is no justification for excluding the views of any section of the community nor for suggesting that the views of any particular section, in all circumstances, prevail.  “The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or water can be properly categorised as ‘major’”; and, “It is necessary to take into account the views and concerns of Native Title holders but the importance and weight to be assigned to those matters will vary in each particular case according to the circumstances and evidence produced”.  Nicholson J held that the expression “should be understood as an ordinary English term and given its ordinary meaning as understood by the whole of Australian community, including Aboriginal people”.  It is clear from the judgements that the views of the Aboriginal people must be considered having regard to the circumstances and evidence adduced.

I respectfully agree with the conclusion by Deputy President Franklyn that the views of the Aboriginal people must be considered but that this must be done in the context of the particular circumstances and the actual evidence.

1. In Arthur Que Noy at paragraph [43] Member Sosso states:

   the regulatory regime … goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and to native title rights and interests are minimised as far as is practicable in the circumstances. Nevertheless despite the advanced and proactive nature of this regime, it is never a complete response to a predictive assessment by the Tribunal under section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant and has been raised), and such other issues as may be pertinent.

2. It is important to keep in mind the differences between sub-sections (a), (b) and (c) of section 237. Even if a proposed act is not likely to interfere in the ways specified in sub-sections (a) or (b), it could still be likely to involve major disturbance of the land or waters concerned.

Evidence

1. In this matter, the evidence by the native title party that could be referrable to major disturbance on the licence area comprises the ‘generic’ material from Mr Frith and Mr Foy, the affidavit, and some concerns expressed at the hearing by Joe Huddleston and Paddy Huddleston.

I have already referred to the difficulty of applying the material from Mr Frith and Mr Foy to the licence area, in the absence of specific supporting evidence.

1. The statements in the affidavit at paragraphs [12] to [14] have already been noted.  In oral evidence Joe Huddleston (transcript, page 39) and Paddy Huddleston (transcript, page 40) each expressed concern at the possibility of a dam that might burst and allow contaminated water to poison the trees and animals.  Reference was made to a dam at Pine Creek ‘where they been digging gold up there’.

2. There may be some confusion between exploration activities and mining activities.  When Joe Huddleston was asked whether he understood the difference between exploration and mining, he replied ‘…You know, its called mining if there’s exploration … Exploration, we don’t know what that meaning.  We sort of one wordage or sort of mining, you know?’ (transcript, page 57).

3. Reference has been made already to the extensive exploration activities in the licence area, and some mining, over a lengthy period of years in the past.  This activity has not attracted any specific comment in the affidavit or by witnesses in their oral testimony. 

4. In assessing the likelihood of major disturbance to land or waters in the licence area, or the creation of rights whose exercise is likely to involve such disturbance, the considerations working against the likelihood include:

   -   the evidence of previous extensive exploration activity and eight small production mines, in a licence area of only about 33 square kilometres;

   -   the lack of specific evidence by the native title party about any past disturbance in the licence area;

   -   the difference in nature between the proposed exploration activities and mining activities;

   -   the absence of any material indicating that the licence area has particular environmental or geological features that call for special consideration;

   - the requirements of sections 35 to 37 of the Mining Management Act that exploration involving substantial disturbance must not be carried out unless an Authorisation is first obtained, and that conditions may be imposed requiring the grantee to minimise disturbance;

   -   the provisions of the consultation and complaint provisions of conditions 6 and 25 of the Second Schedule conditions;

   -   the regime of statutory provisions, conditions and regulatory processes that are applicable, and are brought to the attention of the grantee party (particularly those in the Second Schedule);

   -   the fact that the concerns of the native title party as to the potential impact of their activities have been brought to the attention of the grantee party;

   -   the nature of the work program proposed by the grantee party; and

   -   the stated intentions of the grantee party to comply with all regulatory requirements, and the likelihood of compliance having regard to all the circumstances.

5. The evidence does not demonstrate that any exploration activity within the licence area has amounted to a major disturbance in the sense of ‘a significant impact on Aboriginals who live in or use the affected area’ (Wilcox J, Dann v Western Australia, at 395). In my opinion there is no sufficient evidence to support the likelihood of major disturbance in the licence area as a result of the proposed exploration in the sense explained in Dann v Western Australia, under either limb of section 237(c).

Conclusion as to section 237(c)

1. On the evidence and having regard to the above considerations, I am satisfied that there is not any real chance or risk that the proposed act will 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. I find that it is an act attracting the expedited procedure within the meaning of section 237(c) of the Act.

Conclusion as to section 237 generally

1. I have examined and taken into account all of the evidence that has been submitted, together with all of the contentions by each party. The evidence includes that which is specific to this particular inquiry, as well as the government party’s Standard Exhibit, the ‘generic’ material, and the Standard Documents submitted by the native title party. I have also taken into account the findings and commentary on the interpretation of the Act and other legal issues set out in recent Tribunal reasons for determination relating to objection inquiries in the Northern Territory, particularly those referred to in paragraph [20] above.

2. With respect to the requirements of section 237, I am satisfied that the grant of the proposed exploration licence is an act 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 or waters concerned; is not likely to interfere with the areas or sites of particular significance, in accordance with their traditions, to the holders of native title in relation to the land and waters concerned; and 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. I find accordingly.

DETERMINATION

1. The determination of the Tribunal is that the grant of Exploration Licence 10172 to Robert Joseph Stroud and Robert Lorenz Fisher is an act which attracts the expedited procedure under the Native Title Act 1993 (Cth).

Professor Douglas Williamson QC

Member

19 February 2003