Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd, D J Langley, A J Mazlin and W...

[2002] NNTTA 212

NATIONAL NATIVE TITLE TRIBUNAL

Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd, D J Langley, A J Mazlin and W Falko/Northern Territory, [2002] NNTTA 212 (27 September 2002) 

APPLICATION NO:  DO 01/137

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, LENNY LIDDY, GEORGE HUDDLESTON, TONY KENYON, ROBERT PATRICK MARKHAM & GABRIEL HAZELBANE on behalf of the Wagiman, Warai and Jawoyn Peoples             (native title party)

-  and  -

NT GOLD PTY LTD, D J LANGLEY, A J MAZLIN & W FALKO     (grantee party)

-  and  -

NORTHERN TERRITORY OF AUSTRALIA       (government party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:   John Sosso

Place:        Brisbane

Date:         27 September 2002

Hearing dates:            27 May 2002

Government Party:     Mr Nicholas Papandonakis Solicitor for the Northern Territory

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

Grantee Party:           Mr Neville Manhire

Catchwords:     Native title – future act – proposed grant of exploration licence – expedited procedure objection application - parties contentions – Land Claim Reports – Aboriginal communities – recorded or registered sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – whether act interferes with areas and sites of particular significance – no likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.

Legislation:               Acts Interpretation Act 1901 (Cth) s 36

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

Mining Management Act (NT) Parts 3, 4

Native Title Act 1993 (Cth) ss 29, 32, 44H, 151, 237

Cases:Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, Member Williamson, 5 August 2002

Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported, Deputy President Franklyn, 17 April 2002

Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002

Little v Western Australia [2001] FCA 1706

May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, Member Sosso, 5 June 2002

Little v Western Australia [2001] FCA 1706

Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002

Smith v Western Australia (2001) 108 FCR 442

Western Australia v Smith (2000) 163 FLR 32

REASONS FOR DETERMINATION

Background

[1] On 8 August 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 10339 (“the proposed tenement”) to NT Gold Pty Ltd, D J Langley, A J Mazlin and W Falko (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.

[2] The proposed tenement covers an area of 14 blocks (approximately 47 square kilometres) and is comprised of the following leasehold land:

Pastoral Lease 815, which is known as “Mary River”, and 

Pastoral Lease 903, which is known as “Douglas”.

[3] On 1 February 2001 a native title determination application was filed with the Federal Court (D6006/01). The name given to this application is “Mary River West”, and the Applicants are George Huddleston, Gabriel Hazelbane, Lenny Liddy, Paddy Huddleston, Robert Patrick Markham and Tony Kenyon.  The application was entered on the Register of Native Title Claims on 1 March 2001. The Mary River West application covers approximately 85% of the proposed tenement.

[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 10 December 2001. Technically this was more than four months after the section 29(4) notification day (8 August 2001) – section 32(3). However 8 December 2001 was a Saturday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:

“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”

The named Objectors, are also the Applicants named above.

[5] On 17 December 2001 Deputy President Sumner directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry and on 18 December 2001 Directions were issued for the conduct of the inquiry.  The various contentions made by the parties have been pursuant to those Directions and subsequent variations.  A Listings Hearing was convened on 27 May 2002.

[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. The Tribunal is required, pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In this instance, having regard to the material before the Tribunal, I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.

[7] The parties have submitted to the Tribunal written contentions, which, for ease of reference, are set out below:

Government Party Contentions

Statement of Contentions of Government Party (“GPSC’) dated 22 April 2002

Contentions in Reply (“GPCR”) dated 20 May 2002

Native Title Party Contentions

Statement of Contentions of Objectors (“OSC”) dated 30 April 2002

Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 14 May 2002

Grantee Party Contentions

Email submission (“Gr1”) dated 16 May 2002.

Evidence

[8] In addition to the written contentions, the native title party lodged an Affidavit of Mr Joe Huddlestone.  This Affidavit was affirmed on 22 April 2002 before 1/C Constable C Cuthbertson of Pine Creek Police Station who is a Commissioner for Oaths.  The Affidavit is set out below:

Joe Huddlestone

“1.  I am a member of the native title claim group in the Mary River West native title determination application (DC01/06).  I am Wagiman.  Paddy and George Huddlestone are my brothers.

2.   The area of the application includes the area of ELA 10339.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “JH-10339” 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 10339 is north of the Stuart Highway and at Emerald Springs to the north.  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.  Used to take Kybrook community tractor camp there over night.  Get porcupine when they came 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 doing there.  The country can smell us and knows us.  You got to talk to that country in language.

10.    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.

11.    If white fella go there and damage country maybe they damage the water.  Maybe the country will punish the miners for damaging the country.  They should take Wagiman people with them tell them where they can go.  OK for white fella to go there but have to talk to us first and we show them 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.

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

13.    There is a women’s site at that Spring at Emerald Springs.  That site is in the ELA.  Women only talk about that site.  That site is (AAPA 5270-45).  Men can’t talk for that site.  Mining company have to talk to women about that site.  That site links up along the creek all the way from Butterfly Gorge up to that spring at Emerald Springs.

14.    We had to stop a dam there. White fella wanted to build dam there.  That dam would have flooded all the way from Emerald Springs to Kybrook.”

[9] The government party raised a number of concerns about Mr Huddlestone’s Affidavit (GPCR at paras 87-92):

“87. The Objectors in the matter rely on Mr Huddlestone’s affidavit to support their objection to the expedited procedure of the grant to NT Gold Pty Ltd and  DJ Langley, AJ Mazlin and W Falko. It is therefore incorrect that the affidavit of Mr Joe Huddlestone identifies the Grantee Party as “Robert Stroud and Robert Fisher’. The Tribunal will note that the Darwin Objection number at the top right hand corner of his affidavit is stated to be ‘DO01/??”

88.    Mr Huddlestone’s affidavit in DO01/62 was affirmed on 11 December 2001.  The reference to the date of affirmation on each page of his affidavit filed in this matter has been changed (by unknown hand as the amendment is not initialled) from 11 December 2001 to 22 April 2002.

89.    The Government Party’s concerns are amplified when the content of Mr Huddlestone’s affidavit in DO01/62 is compared with the affidavit filed in this matter.  Attached is his affidavit in DO01/62 and marked “A”.

90.    The content of Paragraphs 4, 5, 6, 7 and 8, and 10, 11 and 12 of each affidavit are identical.  Paragraphs 4-8 set out the community and social activities asserted by Mr Huddlestone in relation to each proposed licence area.  At paragraph 4 Mr Huddlestone deposes to going hunting “there” in the wet season as “you got no other place – other place too boggy”.  At paragraph 8 he deposes to also hunting ‘there’ in the dry season.  Uncertainty exists as to where ‘there’ is with respect to the proposed licence area.  At paragraph 9 Mr Huddlestone deposes: “Just Wagiman go hunting there other people can’t get tucker”.  Mr Huddlestone’s general assertions lack the required particularity to allow the Tribunal to conclude that the asserted activities in fact take place on the proposed licence area or on other Wagiman land.

91.    In each affidavit the Tribunal is being invited to imply that the “there” (first mentioned in paragraph 4) is the area of the relevant proposed licence area (mentioned on each occasion in paragraphs 2 and 3).  The mechanical generation of rote affidavits to place before the Tribunal by changing numbers and names gives rise to this dangerous implication.

92.    In paragraph 8 Mr Huddlestone goes on to state: “Every dry season we got big mobs hunting place”.  This casts further doubt as to whether the dry season activities deposed to actually take place on the proposed licence area, or on Wagiman land in the vicinity.”

[10] The manner in which Mr Huddlestone’s Affidavit has been prepared and submitted to the Tribunal in this inquiry is less than satisfactory. The general tenor of the government party’s submissions has some merit. When this issue was dealt with at the Listings Hearing in Darwin on 27 May 2002 Mr Rumler informed the Tribunal that there was a technical error in the preparation of the Affidavit, and he highlighted the logistical difficulties that the staff of the Northern Land Council face in representing clients across wide areas in an environment of numerous legal proceedings. I accept that the form of the Affidavit was in error but that the error went only to form and not to substance.

[11] I am prepared to make such a finding even though the Affidavit before the Tribunal:

(a) does not have a proper Objection number;
(b) incorrectly describes the grantee party;
(c)  has the wrong date on the bottom of each page; and

(d) substantially duplicates the Affidavit submitted in DO01/62.

I am prepared to do so because ELA 10339 is immediately adjacent to ELA 10172 (the tenement in question in DO01/62) along its western boundary. It must be borne in mind that ELA 10339 is a relatively small area - 14 blocks or some 47 square kilometres. Moreover ELA 10172 is even smaller, being only 10 blocks or 33 square kilometres. Both proposed tenements are located near to the Stuart Highway, with that Highway intersecting the south eastern portion of ELA 10339, and being within 500 metres of the southern boundary of ELA 10172.

[12] The use of standard form Affidavits by deponents is not helpful. But in this particular case the fact that:

(a)the two proposed tenements are located side by side;

(b)both subject areas are relatively small;

(c)both are wholly or substantially comprised of pastoral lease land;

(d)both are located near to the main north-south highway in the Northern Territory such that they could be accessed in the manner described in the Affidavits;

(e)from the mapping supplied, both are similar from a topographic perspective; and

(f)in both Objections the same person deposed to the relevant Affidavits,

leads me to the view that the Affidavit of Mr Huddlestone can be accepted on the basis that he has turned his mind to the relevant land and waters and that his evidence is directed to those land and waters and is not merely a formulaic repetition of statements that have no particular relevance to the issues before the Tribunal.

[13] The other issue with Mr Huddlestone’s Affidavit is his evidence at paragraph 13 concerning a women’s site at Emerald Springs. Mr Huddlestone specifically says: “Women only talk about that site … Men can’t talk for that site. Mining company have to talk to women about that site.”

[14] As the government party contends (GPCR at para 98): “No evidence has been submitted by any female who has authority to speak for the site, which would enable the Tribunal to reach the conclusion that the site is of particular significance for the purposes of s.237(b).”  On numerous occasions in Northern Territory expedited procedure objection determinations I have cited extracts from the reasons of R D Nicholson J in Little v Western Australia [2001] FCA 1706. In that case His Honour deals at some length with the need for persons who purport to speak on behalf of areas or sites of alleged particular significance, to outline what authority or status they have to speak on behalf of those areas or sites. This is of critical importance, because only a person with the requisite traditional knowledge or authority can satisfactorily explain in given circumstances, the particular sacredness of a site in accordance with traditional laws and customs. Section 237(b) requires the Tribunal to make an assessment of the likelihood of interference to areas or sites of particular significance in accordance with their traditions, to the persons who are the holders of native title in relation to the land or waters concerned.  In short it is a condition precedent to a finding that an area or site is of particular significance that the Tribunal has evidence of the importance of a given area or site in accordance with the traditions of the native title holders. The best evidence of such traditions is from a person or persons who have the traditional knowledge and have the traditional authority to speak for the relevant area or site. In this instance Mr Huddlestone points out that the site in question is a women’s site and that men can’t speak for it. No evidence has been submitted by a properly authorised female native title holder. In short, the only material before the Tribunal is that, within the proposed tenement there is a women’s site, but its particular significance to native title holders is not explained as Mr Huddlestone cannot speak for the site. Mere identification of a site without the presentation of any additional evidence is not sufficient for the Tribunal to make a finding that it is of particular significance. In this inquiry, therefore, there is insufficient material to lead to a finding that the women’s site at Emerald Springs is a site of particular significance.

Aboriginal Communities

[15] The native title party submits (OSC at para 62) that there are three communities of native title holders in or in the vicinity of the licence area, namely:

(a)Burrundie, which is approximately 5 km east of the north-east corner of ELA 10339;

(b)Emerald Springs, which is within the licence area in the southern sector near to the Stuart Highway; and

(c)Pine Creek and Kybrook Farm, both of which are located approximately 35 km south east of ELA 10339.

[16] The government party, on the other hand, contended (GPCR at para 55) that “it is uncertain if they are, wholly or partially, a community of relevant native title claimants, the number of residents, and whether they are seasonally or permanently occupied.”

[17] In this inquiry there is no evidence about the particular communities outlined by the native title party, other than an assertion that they are comprised of native title holders. Each of the criteria in section 237 is directed toward issues of interference or major disturbance viewed through the prism of native title holders. The predictive risk assessment mandated by section 237 is not a charter to evaluate the possible impact of exploration activities on the community generally. This is an administrative tribunal with a relatively limited jurisdiction; it is not a tribunal charge, when conducting an expedited procedure objection inquiry, to consider general issues of town planning and environmental law.

[18] A party asserting that there is a community of native title holders should properly explain the nature of the community. In that regard information about the number of native title holders residing or visiting the locality, whether it is seasonally or permanently occupied and whether it is wholly or partially composed of native title holders, would be useful. A bald assertion that there are communities in the locality, without more, is insufficient.

[19] In this inquiry I accept that Mr Huddlestone and other native title holders reside at Kybrook Farm. From previous inquiries conducted, I am also prepared to work on the assumption that members of the claim group live on a permanent or semi-permanent basis at Pine Creek. However, there is no primary evidence that any member of the claim group resides at either Emerald Springs or Burrundie. In the absence of any evidence or any assertion by a native title holder to that effect, I am not prepared to assume that either Emerald Springs or Burrundie comprise communities of native title holders.

[20] Finally, it is relevant to highlight that the same native title determination claim group lodged an expedited procedure objection (DO01/19) with respect to the grant of an exploration licence (ELA 22457) which was located near to the land and waters the subject of this inquiry. Furthermore ELA 22457 was situated within 5 km of Emerald Springs. In that matter the native title party   (OSC DO01/19  at para 40) only specifically mentioned  communities of native title holders at Pine Creek Town Camp and Kybrook Farm, even though Emerald Creek was far more proximate to the relevant land and waters. While the absence of any mention of relevant communities at either Emerald Creek or Burrundie in that inquiry is not of central importance for this matter, it nevertheless does highlight the failure of the native title party in either of the inquiries to provide any information about communities other than those at Kybrook Farm and Pine Creek.

Recorded or Registered Sites

[21] Material supplied by the native title party indicates that there is only one site recorded or registered by the AAPA within the boundaries of the proposed tenement. Wurrmi Devil (AAPA 5270-74) which is located on the northern border of the subject area is a recorded site (with a status of 10) and is described as the “tops of the hill country extending south and south-east from this point.”  No mention was made of this site in either the Affidavit of Mr Huddlestone or in the various Contentions of the native title party.

[22] The native title party refers (OSC at para 77) to a site on the AAPA Site Register described as “Garramben” (aka Nyaporr) which is said to be located at Emerald Springs. Mr Huddlestone also refers to a site (AAPA 5270-45) located at Emerald Springs however, the information and mapping supplied to the native title party by the AAPA and submitted into evidence discloses no such site(s) on or within the vicinity of the proposed tenement.

Previous Exploration Activity

[23] The area of the proposed tenement has been subject to numerous previous exploration and mining grants by the Northern Territory for almost 50 years, with one Mineral Lease having been granted in 1956. Outlined below are details of previous mining and exploration tenements as supplied by the government party:

Exploration Licence  -  EL 615, 3138, 4734, 4817, 5370, 5968, 6077, 6263, 6264, 6529, 6595, 6729, 7019, 7021, 7124, 7127, 7387, 7391, 7661, 7706, 7707, 7980, 9055, 9485.

Exploration Licence – Substitution – SEL 8421
         Mineral Lease B (Waggaman) – ML 138 B, 609 B, 1192 B, 1196 B, 1259 B, 1260 B,         Mineral Lease (Northern) – MLN 347, 350, 351, 374, 375
         Mineral Claim B (Waggaman) – MC 123 B     

Mineral Claim (Northern) - MCN 574

[24] Mapping prepared by the Department of Business, Industry and Resource Development indicates that with the exception of that very small part of the proposed tenement located south of the Stuart Highway, the entire area has been the subject of extensive exploration activity. In addition the area to the west of the proposed tenement has also been the subject of intensive exploration.

[25] Material supplied by the government party further indicates that the type of exploration activity which has taken place includes rock chip sampling, soil sampling, stream sediment sampling and diamond drilling. This activity took place between 1983 and 1993. Mapping before the Tribunal illustrates that the various forms of exploration activity have been evenly spread throughout the subject area.

Nature of the Proposed Exploration Activity

[26] In its application for the Grant of an Exploration Licence, the grantee party made the following comments about its proposed work program for the first year:

“- Stream sediment sampling of major drainage channels over entire area of Exploration Licence.

- Rock chip sampling of mineralised outcrops encountered during stream sediment sampling program.”

The grantee also advised the following program for subsequent years:

“Anomolous results from the first years exploration program will be further investigated by more intensive stream sediment sampling, soil sampling, rock chip sampling etc. as required”

Expert Evidence Adduced by the native title party

[27] In addition to the Affidavit of Joe Huddlestone the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy, the transcripts of evidence given by Messrs Stead and Foy to Member Stuckey-Clarke in December 2001 and the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.

[28] These standard documents have been considered by various Tribunal Members in numerous Northern Territory expedited procedure objection inquiries. Recently the relevance and utility of this generic material for specific inquiries was discussed by Member Williamson in Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, 5 August 2002 (“Anges Limmerick”). I respectfully adopt, for the purposes of this inquiry, Member Williamson’s comments and analysis at [23] – [29].

Land Claim Reports

[29] The native title party seeks to rely on various findings made by Maurice J in the Mataranka Area Land Claim Report and by Kearney J in the Upper Daly Land Claim Report.

[30] Primary reliance was placed on the findings of Kearney J. His Honour handed down his Report by means of three separate volumes which were presented to the then Minister for Aboriginal Affairs between August 1989 and March 1990. The Volume having most relevance to this inquiry was Volume 3 – the Wagiman Claim. His Honour points out (at pp 58-60) that evidence was given at various places between mid 1984 and early 1985. In other words the evidence of foraging which the native title party in this inquiry seeks to rely upon was presented almost two decades ago.

[31] It is pointed out that there is a substantial overlap between the membership of the native title determination claim group and those persons who were found by Kearney J to be traditional owners. In particular it is contended that the claim group comprises Wagiman, Warai and Jawoyn Peoples and that ELA 10339 is located within Wagiman country. It is the case that His Honour did find that various members of the claim group, including Mr Joe Huddlestone, were traditional Aboriginal owners (at pp 89-91).

[32] The land His Honour found to be that of the Wagiman was marked in red at Appendix 11 of his Report. Those lands and waters are located mostly south of the Daly River and in the general vicinity of Fish River Forestry Reserve. In addition Kearney J also found that Wagiman country also included Douglas Hot Springs National Park which is situated south of the Stuart Highway.  The Park is intersected by the Douglas River and is some distance south of ELA 10339.

[33] His Honour specifically discussed what would be considered traditional Wagiman country. He made these findings (at p.72):

“46. I consider that it flouts common sense to accept that, in pre-contact times, Wagiman country occupied an area as extensive as that which is suggested by the claim area. The Daly River Basin is a fertile area, a Garden of Eden for the hunter-gatherer, and historically appears to have been the home of many different Aboriginal groups. The likelihood that those groups closest to the non-Aboriginal incursions commencing in the 1870s in the north-east suffered the first decline in population, and the process continued as Aboriginals from ever further afield were attracted to the new mining settlements there, seeking goods such as tobacco.

47. I consider that the general thrust of the claimant’s evidence points to Wagiman country as being historically on the west side of the Daly River. The most important part of their traditional country appears to lie in the south-west of the claim area.

48. … I consider that their claim to traditional ownership of lands to the east of the Daly rests upon their quite recent residence there; that is, recent in historical terms. … ”

His Honour’s analysis is to the effect that the Wagiman People gradually moved east and north from their traditional lands which were on the western side of the Daly River. It must be appreciated that the country described by Kearney J as being the traditional lands of the Wagiman is quite some distance from the proposed tenement. When His Honour dealt with the Wagiman engaging in foraging and other activities in the north eastern part of the claim area, he is referring to the area around Douglas Hot Springs. Again this is a number of miles to the south west of ELA 10339. In short, I find very little in the Upper Daly Land Claim Report which assists the native title party in terms of confirming that the area of the proposed tenement was accessed and used by Wagiman People on a fairly regular basis for community and social activities. Indeed, insofar as the Report leads anywhere in this regard, it is that the country of primary significance to the Wagiman lies to the south and south west of ELA 10339. This is not to say that through the effluxion of time the area around the proposed tenement has not become more significant to the Wagiman and accessed on a regular basis. However, if that be the case, then confirmation of that assertion and details of such contact, are not to be gleaned from the analysis of Kearney J.

[34] In summary, then, none of the land the subject of His Honour’s inquiry was located on, or in the immediate vicinity of, the proposed tenement. The native title party states (OSC at para 46) that the proposed tenement is about 70 km to the north north east of the land the subject of His Honour’s inquiry. While that would be an accurate estimate of the lands in the vicinity of the Fish River Forestry Reserve, Douglas Hot Springs would be much closer. Nonetheless, the fact of the matter is that Kearney J was not specifically considering land within a close distance of the proposed tenement. Having regard to the very large tracts of land the subject of his investigation and the relatively compact nature of the proposed tenement, taken together with its distance from the nearest area considered, it is hard to conceive how findings on foraging could be of much assistance in this matter.

[35] The nature of the assessment of community or social activities within section 237(a) is of those contemporary activities which may be interfered with by the grant of the exploration licence. Findings in a Land Claim Report based on evidence given in 1984 and 1985 with respect to land and waters located some distance away, is of marginal utility (if any) to this inquiry.

[36] The native title party contends (OSC at para 54) that Kearney J’s Report contains findings that deal with Wagiman country, which is in the vicinity of the licence area, and that the Report deals with substantially the same people who are members of the native title claim group in this matter. While I have no difficulty with accepting the thrust of these contentions, they nonetheless do not advance the native title party’s position very far. The fact that Kearney J dealt with Wagiman people and Wagiman country and made findings (inter alia) of an entitlement to forage on that country, is peripheral to the matters to be determined in this inquiry. There is no intersection between the land and waters Kearney J was charged with investigating and the licence area in this inquiry. There is no evidence that the foraging activities he considered, took place on the area under inquiry in this matter. There is no suggestion that what occurred, in terms of foraging, some two decades ago, represents contemporary indigenous activities.

[37] In this regard I refer to the following contention of the native title party (OSC at para 53):

“b. Nothwithstanding the period of time that has elapsed since the evidence given and the findings made, where there are findings of general nature concerning the activities on and attitudes to people’s country, an inference can be drawn that the same people do the same things on, and have the same attitudes to, other parts of their country, which include the licence area.”

[38] With due respect to the native title party, I do not agree with this proposition. It is not open to the Tribunal to draw an inference that simply because an Aboriginal Land Commissioner makes general findings on traditional owners attitudes to country and activities on country at a particular period, that those owners have the same attitudes, and do the same things, on other parts of their country at a much later point in time.  This proposition itself highlights the unsatisfactory platform that Land Claim Reports often provide in expedited procedure inquiries. These Reports are made under a different statute and usually involve different land and waters. In many instances the Reports are dated and are directed towards the particular requirements of the Aboriginal Land Rights (Northern Territory) Act 1976. An assessment pursuant to section 237(a), for example, is focused on community and social activities which may be interfered with. In short it is an inquiry about activities engaged in, not about activities that occurred in the past. There must be evidence of something that will be interfered with; and an historical account of what was occurring five, ten, fifteen or twenty years before is irrelevant. Thus to say that it is open for a Tribunal to infer, because an Aboriginal Land Commissioner received evidence of foraging ten years ago, in relation to some part of the traditional lands of a particular local descent group, that such foraging:

(a)still takes place;

(b)takes place on the land and waters of the proposed tenement; and

(c)is engaged in by members of the native title determination claim group,

would be a speculative exercise. I leave for the moment the vexed issue of the correlation between membership of a particular claim group and the finding of traditional ownership by an Aboriginal Land Commissioner. Suffice it to say, it is a matter of some difficulty and complexity and a degree of caution must be exercised by the Tribunal when applying findings of traditional ownership in a Land Claims Report, to native title rights and interests by a particular native title determination claim group. Finally, general findings of attitudes to country and activities on country, by an Aboriginal Land Commissioner, can be of use in an expedited procedure objection inquiry, but such findings provide the background and add to evidence already before the Tribunal. In short such general findings can be useful, but they are no substitute for contemporary primary evidence by relevant native title holders.

[39] In conclusion, having perused the Upper Daly Land Claim Report, I found it to be of interest in providing background and historical information on this part of the Northern Territory but was of limited assistance in advancing the contentions of the native title party.

[40] With respect to the Mataranka Land Claim Report, it would appear that reliance is placed on the findings of Maurice J to provide a context and explanation of various activities deposed to by Mr Huddlestone. In particular the reference made to findings on foraging, and hunting and gathering of bush tucker in that Report, as explaining the importance of such activities and defining the context in which it takes place. A similar reliance is placed on findings by Maurice J about the importance of teaching children about traditional laws and customs and the significance of areas or sites.

[41] It will be noted that the particular findings being relied upon are of a generic nature. They are not findings either relating to the land and waters comprising the proposed tenement or of the native title claim group. The area being considered by Maurice J stretched from Mataranka in the west to Warloch Ponds in the east. The land under consideration by Kearney J in the Upper Daly Land Claim Report went as far south as the intersection of the Flora and Katherine Rivers (north of the Victoria Highway). This is around 60 km west of Katherine. Mataranka, the most westerly part of the land under consideration by Maurice J, is some 112 km south of Katherine. In short, the traditional laws and customs about which primary evidence was led in that inquiry involved traditional owners whose country was many miles away from the area under consideration in this inquiry. Simply because an Aboriginal Land Commissioner makes findings of a general nature does not mean that they can be applied elsewhere in the Northern Territory. Like any inquiry, an Aboriginal Land Commissioner is presented with particular evidence about the matters at hand. When presenting a Report a Commissioner is reporting on the land and waters under claim and the evidence led relates, presumably, to the matter he or she is charged with making findings on. In these circumstances, having regard to the age of the Report (it was presented in 1988) and the absence of any evidence that there is any correlation between the claim group in this inquiry and the claimants in that matter, I am not satisfied that the findings of Maurice J are of relevance to this inquiry.

Legal Principles

[42] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.

[43] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:

“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.”

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

[44] Mr Huddlestone deposed that “we” still go hunting in the area of the proposed tenement during the wet season as other hunting places are too wet. He indicated that he drives from Kybrook Farm along the Stuart Highway, and then walks from the Highway on to the subject area. Hunting is conducted mostly by using firearms, although spears are sometimes used. Animals hunted include kangaroo and porcupine. Further, bush tucker in the form of green plum, bush potato, water yam and sugar bag are collected.

[45] This area is also accessed during the dry season for hunting, although it would appear that fishing does not occur due to the drying up of watercourses.

[46] It would appear that in the past Mr Huddlestone and those accompanying him used to camp out, but now only day trips occur: “Now we drive down come back that afternoon”.

[47] Mr Huddlestone also deposes that only Wagiman go hunting in this area.

[48] The native title party also sought to rely upon evidence given by Mr Huddlestone on 16 April 2002 at Kybrook Farm when Member Williamson conducted an “on country” hearing into objection DO01/62. This objection relates to the adjoining proposed tenement ELA 10172. The country identified by Mr Huddlestone during his testimony where he engages in fishing, hunting and gathering activities includes some or all of the proposed tenement, and, as such I have taken his testimony into account in this inquiry.

[49] The testimony Mr Huddlestone gave before Member Williamson contradicts in some respects the evidence he deposed to in his Affidavit.

[50] Mr Huddlestone said that the hunting and gathering activities sometimes take place over more than one day as the following exchange illustrates (at p.37):

“MR FRITH:  You go out just the day or go out for more than one day?

MR HUDDLESTONE: More than one day. Sometime we feel like to go one evening, once in the evening and that.”

In contradistinction Mr Huddlestone deposed in his Affidavit that he no longer goes camping and that access to the subject area is by means of one day return car trips. In fact the general tenor of the evidence he gave at Kybrook Farm about groups of people travelling in vehicles to the area and then walking in a wide circle, presents a different view of the type and intensity of community and social activities than is gleaned from his Affidavit.

[51] Nonetheless it is clear from Mr Huddlestone’s testimony that the hunting, fishing and gathering activities involve all the members of his family. He refers to his wife and his children (p 36) as well as four or five married men and boys (p 36). In addition he also refers to women travelling separately and ahead of the men and going to a fishing area (p 36).

[52] It would also appear from the testimony that Mr Huddlestone works as a stockman during the dry season (p 67) at Oolloo Station (p 68) which would appear to be located immediately north of the Daly River, some distance south west of Pine Creek and immediately south of Douglas Hot Springs Nature Park. The transcript indicates that Mr Huddlestone lives at the Station during this time and engages in hunting and related activities in the region of Douglas Hot Springs rather than in the locality of the proposed tenement. Indeed under cross-examination from Mr Lavery he said that he comes back to Pine Creek during the wet season. I infer from this evidence that Mr Huddlestone’s visits to the subject area during the Dry Season would be infrequent and that they would be mostly limited to times when he returns to his home at Kybrook Farm during the Wet Season.

[53] It is also contended by the native title party (OSC at paras 71 and 72) that native title holders look after country by visiting and maintaining sites and that there is a real or not remote chance that the carrying out of this activity will be interfered with by the grant of the proposed tenement. In this regard the Tribunal’s attention is directed towards the evidence of Mr Huddlestone that people have to be introduced to country and that the Wagiman People should be able to tell the grantee party where to go and where access is not allowed.

[54] The government party made these submissions about Mr Huddlestone’s evidence (GPCR at para 62):

“These activities must be carried on.  The scant references in the affidavit of Mr Huddlestone are so unspecific and there are very few references to the proposed licence area that contain any useful information upon which to found a carrying on of social or community activities on the proposed licence area. The specific locations at which these activities are said to occur are patchily identified, the number of relevant persons engaged in these activities, when they go, the seasonal variations in the game or item; all are unstated.”

[55] The leading decision on the proper interpretation of section 237(a) post the 1998 amendments to the Native Title Act 1993 is Smith v Western Australia (2001) 108 FCR 442. French J pointed out that the Tribunal is required to conduct a predictive assessment, and that a future act is likely to result in interference with community or social activities if it involves a real chance or risk of interference. However, the interference referred to in section 237(a) (at 451) “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.” His Honour also said that:

“in assessing the risk of direct interference the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed act is insubstantial. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”

[56] In assessing the likelihood of the future act interfering directly with the carrying on of the community or social activities of native title holders, I have taken into account the following factors:

(a)the proposed tenement forms part of Perpetual Pastoral Leases 815 and 903. The licensees of those Leases together with any employees or agents of the licensees have a right, pursuant to the terms of the lease and the law governing that lease, to carry out lawful activities. To the extent that a pastoral licensee (or persons authorised by the licensee) lawfully exercise rights granted, such activity prevails over any native title rights and interests – s 44H. Toohey J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 (at 133): “If inconsistency is held to exist between the rights and interests conferred by native title and rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.”  French J highlighted in Smith v Western Australia that when assessing the risk of direct interference the Tribunal is entitled to have regard to constraints already imposed on community or social activities by third parties. In this instance the Tribunal has had regard to the fact that community or social activities on the proposed tenement by native title holders are already subject to lawful activities of the grantees of  Pastoral Leases 815 and 903;

(b)the area comprising ELA 10339 has been the subject of extensive exploration activity particularly over the last twenty years. Nevertheless, the native title party has produced no evidence that previous exploration has in any material way interfered with community or social activities.

(c)no evidence has been produced of any Aboriginal communities located within, or immediately adjacent to, the proposed tenement. As previously pointed out, Emerald Springs is located within the outer boundaries of the proposed tenement, although it would appear to be contained in a parcel of freehold land. No evidence has been led that there are any native title holders residing at Emerald Springs, and Northern Territory road maps describe it as “Emerald Springs Wayside Inn”;

(d)there is only limited evidence of community and social activities occurring on the proposed tenement, in particular:

(i)the activities deposed to by Mr Huddlestone in both his Affidavit and during his testimony at Kybrook Farm (at pp 35-36) relate to an area which he describes as being between the Stuart Highway and the North Australia Railway Line in a north-south direction and between Hayes Creek in the west and an area to the east of the proposed tenement. It is clear that ELA 10339 forms only a very small part of this area. In short the area of hunting, gathering and fishing frequented by Mr Huddlestone and other Wagiman People is over a very large area and it is open to infer that the proposed tenement would only occasionally be accessed by native title holders engaging in community and social activities;  

(ii)it is not clear how many native title holders engage in community or social activities. While Mr Huddlestone provides no details of the number of persons who accompany him in hunting and related activities, the testimony he gave at Kybrook Farm paints a picture of twenty or more persons (both male and female) driving to the area of the proposed tenement and then travelling by foot over a wide area. I am prepared, for the purpose of this inquiry to work on this assumption;

(iii)while Mr Huddlestone says in his Affidavit that he engages in traditional activities on the proposed tenement during both the Wet and Dry Seasons, his evidence at Kybrook Farm was that he worked on a Station during the Dry Season and hunted in that area. He further said that he returns to the Pine Creek area during the Wet Season and during that time engages in traditional activities in the general area. I infer from this evidence that Mr Huddlestone would rarely engage in any hunting and related activities on or near to the proposed tenement during the Dry Season. I would further infer that Mr Huddlestone’s activities are basically limited to the Wet Season, and any evidence he can give of other persons accompanying him or otherwise engaging in such activities in the area is mostly limited to the Wet Season;

(iv)it is not clear how often Mr Huddlestone actually visits the proposed tenement. While it is likely that such visits are seasonal, there is also considerable doubt having regard to the very wide area he deposes that he engages in hunting, gathering and fishing, and the fact that this occurs by foot, whether the subject area would be visited on other than an infrequent basis;

(v)Mr Huddlestone’s testimony that during the Wet Season access to the area is limited to parking a vehicle on the Stuart Highway and travelling by foot indicates that when he visits the proposed tenement it would be unlikely that he would access other than localised portions of it. It must be appreciated that if access is restricted to foot movements because of the wetness of the area, it is unlikely that considerable distances could be covered on any particular occasion;

(vi)there are differences in the evidence before the Tribunal whether the trips Mr Huddlestone engages in are only day trips or whether camping out overnight takes place. The evidence before this Tribunal in the form of his Affidavit is clear on this point. He specifically deposes that he does not camp out and that all trips take place within the one day. Insofar as his evidence at Kybrook Farm is in conflict with his Affidavit, I will assume that the evidence in the Affidavit is to be preferred. I do not draw any adverse inferences from this conflict, but it again highlights some of the evidentiary difficulties facing the Tribunal especially when the material is sometimes vague or even conflicting; and

(vii)working on the assumption that camping out overnight does not take place and that hunting, gathering and fishing trips all take place within the one day, it is unlikely that Mr Huddlestone or those persons accompanying him would travel long distances or engage in very intensive activity. Obviously if there was evidence of camping out for extended periods a different situation would arise in terms of the nature and extent of the community and social activities. Instead the evidence of Mr Huddlestone in his Affidavit is to the effect that the community and social activities are of very short duration and of limited geographical extent.

(e)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. In previous inquiries I have referred to the conditions imposed on grantees pursuant to section 24A of the Mining Act. I will not repeat each and every one of the relevant conditions, however I do set out the first two conditions which are of particular relevance to a section 237(a) assessment:

“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any

extant native title rights and interests in the licence area, in particular, by ameliorating:

(a) any interference directly with the carrying on of community or social activities of registered native title claimants or holders;

(b)    any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.

2. The Licensee shall carry out is activities in such a way as to minimise the disturbance of the environment of the licence area, in particular by minimising:

(a) interference with the use of the land by other persons;

(b) the disturbance of flora, fauna and other natural resources;

(c) pollution, including soil, water and atmospheric pollution;

(d) the incidence and effects of soil erosion.”

There are other provisions in force in the Northern Territory which I have also previously outlined in other inquiries, however 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) disturbance to 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;

(f) the grantee party contended (Gr1) that it will “undertake to abide by the requirements of all relevant protective legislation including the Mines Act and the Sacred Sites Act. Every effort will be made to avoid any inconvenience to the Native Title Party in their enjoyment and use of the areas and we shall make every endeavour to ensure that our exploration activities do not have any deleterious effects on that land.”;

(g) the Tribunal is entitled to presume that the grantee party will act lawfully in exercising rights given under the exploration licence – see Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Deputy President Franklyn.

[57] In conclusion, while I accept that community and social activities are carried on by native title holders on the subject area, I am not satisfied on the material before the Tribunal, and having regard to the factors outlined above, that there is any real chance or likelihood that the grant of the proposed tenement would be likely to result in direct interference within the meaning of section 237(a).

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

[58] As previously noted, the only site specifically referred to by Mr Huddlestone in his Affidavit was a women’s site at Emerald Springs. For the reasons I have set out, it is not possible to make a finding that this is a site of particular significance. Accordingly, there is no basis for proceeding with a predictive risk assessment pursuant to section 237.

[59] While there is a recorded site located within the boundaries of the proposed tenement (5270-74), no evidence was led by the native title party about it. The fact that a site has been recorded or registered by the AAPA does not signify that it is a site of particular significance to the relevant native title holders. In each case evidence must be led to demonstrate that an area or site is of particular significance to native title holders, and in that regard the best evidence is that of a properly authorised native title holder who has the requisite knowledge to explain the particular sacredness of the area or site in question.

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

[60] The native title party made extensive submissions on the issue of major disturbance, however the vast bulk of those submissions were not directed to the particular circumstances of the proposed tenement, but were of a generic type received in most expedited procedure objection inquiries.

[61] In Moses Silver I set out key provisions of the then regulatory regime governing exploration activities in the Northern Territory. Subsequently Deputy President Franklyn described the changes brought about by the Mining Management Act in Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, 27 March 2002 and Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported 17 April 2002. More recently I considered the relevant provisions of the Mining Management Act in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002. I adopt, for the purposes of this inquiry, the analysis of the regulatory regime set out in the abovementioned determinations. In particular I have considered the following provisions in this inquiry: sections 24(j), 24A (in particular Conditions 2, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 20), 166(1A), (1B) and (2) of the Mining Act and Parts 3 and 4 of the Mining Management Act. The evidence submitted in this inquiry about the regulatory regime is consistent with previous findings of the Tribunal that it 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.

[62] The evidence before the Tribunal discloses that the land and waters comprising ELA 10339, as well as the surrounding area, has been subject to exploration and mining activities for many years. Certainly the proposed tenement has been subjected to extensive exploration for the last two decades.

[63] It also needs to be appreciated that the area north of Pine Creek has historically been the hub of mining activity since approximately 1875. Much of the early mining (and very tragic) history of this region was outlined by Kearney J in the Upper Daly Land Claim Report. For the purposes of this assessment I will set out a short extract where he deals with mining in the region of the north-east of the claim area. This general region would include that land and waters in the vicinity of the proposed tenement (pp 63-64):

“27.  In the north-east, Area 4 includes part of what is in historical terms the most important mining district in the Territory.  Extensive mining has taken place there since the 1870s and from time to time relatively large numbers of non-Aboriginals, mainly Chinese, have lived and worked there.  The completion of the Overland Telegraph Line in 1872 meant that news of the discovery of gold at Yam Creek in July that year quickly attracted many diggers from the south.  The map at Appendix 5 gives an indication of the resulting intensity of the mining influx, spasmodic though it proved to be; see to the same effect the 1905 plan of the gold mining district at the back of Exhibit 4.  The conditions of life for the miners were very rough and hard.  There were sporadic attacks by Aboriginals, which sometimes resulted in ruthless reprisals.  From 1874, Chinese were recruited from overseas to labour in the Territory.  Most of them stayed after their contracts expired, to prospect for gold.  The following figures are approximate only.  The Chinese population in the Territory rose dramatically from 108 in 1874 to 4108 in 1881, peaking at 6122 in 1888; at that time there were 1144 other non-Aboriginals in the Territory.  The non-Aboriginal population engaged in mining peaked in 1895, with 1985 Chinese and 111 others.  The Chinese were nearly all males.  Eventually, measures were taken to restrict their influx.  From 1889 the Chinese population steadily declined.  By 1894 the mining population for the Territory stood at 2015 Chinese (the largest number ever attained) and 65 others; by 1913 there were 659 Chinese miners, and by 1921 only13 remained.  It can be seen that there was a relatively large scale, though not very long-lived, incursion of non-Aboriginals in the north-east of the claim area, with various settlements coming into existence such as Yam Creek, Pine Creek, Brocks Creek and Union Town.  For an impression of the dimensions of this incursion see paras 12-20 of the Jawoyn (Katherine Area) Report.”

[64] It is clear that the Pine Creek region has been the epicentre of various forms of mining (gold, tin etc) for more than a century. The intensive nature of mining exploration on and in the vicinity of the proposed tenement over the past two decades (at least) is further testament to the ongoing attraction this region has for mining interests.

[65] One would expect that with this history the native title party would be in a position to inform the Tribunal if any of the various explorers have caused major disturbance to land or waters or otherwise had a deleterious impact on the amenity of native title holders. In fact no such evidence has been led. It is open to the Tribunal to infer that despite extensive exploration in this area for some time, that exploration has not resulted in major disturbance to land and waters within the meaning of section 237(c).

[66] The general tenor of the evidence provided by Mr Huddlestone is that the hunting, fishing and gathering activities traditionally engaged in have not been impacted upon by exploration. No examples were provided of explorers polluting creeks, killing wildlife, disturbing fauna or flora or otherwise disturbing the environment. Indeed, Mr Huddlestone’s accounts of Wagiman access to the subject area presents a picture of country that has been largely unaffected by either pastoral or mining activity, and one where there remains an environment conducive to native title holders being able to actively pursue traditional activities.

[67] The only example given of conduct of a type that may have resulted in major disturbance was the construction of a dam at Emerald Springs. It is not clear from Mr Huddlestone’s Affidavit who was proposing to build the dam, but it would be unlikely that infrastructure of that type would be built from private capital, let alone by a grantee of an exploration licence. In any event it would appear that the proposal to construct the dam did not proceed. Consequently this example is not germane to a section 237(c) assessment, as the potential major disturbance appears to have no relationship to mining exploration.

[68]  The only special circumstances of the subject area highlighted by the native title party (OSC at para 122) is that there is a spring at Emerald Springs linked with the Butterfly Gorge park and there is not much water on the licence area in the dry season.

[69] Neither of these matters constitutes special circumstances. Firstly, it is not clear even if the spring at Emerald Springs lies within the proposed tenement. Emerald Springs is located within an area of freehold land, and it may well be that the spring is also within that tenure. However, even if the spring is within ELA 10339 and it is connected with Butterfly Gorge, I fail to see the particular environmental or geological significance of this fact. There is no evidence that the particular exploration being proposed would pose any particular risk to the spring.

[70] Secondly, the fact that the subject area does not have much water during the dry season does not constitute special circumstances. Almost the entire Northern Territory is arid during the dry season: no doubt that is why this season gets it name. Possibly if there were a community of native title holders living nearby and there was evidence that drilling was going to take place and that the subsoil was of particular type such that there was risk of dust, the fact that it was very dry may have some relevance. However, the native title party has led no evidence of special circumstances in this matter.

[71] Another issue of relevance is the fact that there is no evidence of native title holders living on, or in close proximity, to the proposed tenement. Moreover, no evidence has been led that previous exploration activities has had a deleterious impact on the communities of native title holders at either Pine Creek or Kybrook Farm.

[72] It is also clear that Mr Huddlestone is not opposed to exploration per se. He outlines in clear terms that there is a need for a grantee to consult with traditional owners before the commencement of the first year’s work program so that people can be properly introduced to country and so that areas of particular significance can be identified and inappropriate access or activities do not occur. The compulsory on site consultation (Condition 18 of the “Second Schedule” Conditions made pursuant to section 24A of the Mining Act) between the grantee party and registered native title claimants should ensure that issues such as these can be addressed and proper protocols developed.

[73] Finally, I note the grantee party’s submission that not only will it comply with the relevant laws, but, in addition, every effort will be made to avoid inconvenience to native title holders and it will make every endeavour to ensure that exploration does not have any deleterious impact on the relevant land and waters.

[74] I am satisfied on the basis of the evidence before the Tribunal, the absence of any evidence of disturbance from previous exploration activity on the subject area, the nature of the regulatory regime governing mining exploration in the Northern Territory, and the absence of any material suggesting that the subject area has particular geological or environmental features that call for special consideration, that it is not likely that the grant of ELA 10339 would result in major disturbance within the meaning of section 237(c).

Determination

The determination of the Tribunal is that the grant of Exploration Licence 10339 to NT Gold Pty Ltd, D J Langley, A J Mazlin and W Falko is an act which attracts the expedited procedure under the Native Title Act 1993.

John Sosso

Member