Peggy Mawson and Roy Dixon/Minorco Australia Limited/Northern Territory
[2002] NNTTA 65
•1 May 2002
NATIONAL NATIVE TITLE TRIBUNAL
Peggy Mawson and Roy Dixon/Minorco Australia Limited/Northern Territory, [2002] NNTTA 65 (1 May 2002)
APPLICATION NO: DO01/18
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Peggy Mawson and Roy Dixon (Native Title Party)
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Minorco Australia Limited (Grantee Party)
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Northern Territory of Australia (Government Party)
Tribunal: J. E. Stuckey-Clarke, Member
Place: Sydney
Date: 1 May 2002
Hearing dates: 11 July 2001; 10 October 2001; 25 October 2001; 30 October 2001; 9 November 2001; 3 December 2001; 4 December 2001; 18 January 2002; 28 February 2002; 5 March 2002
Government Party: Mr Daniel Lavery, 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 Colin Wood
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – grantee party’s intentions – presumption of regularity – likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation:
Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 109, 146, 151, 237
Cases:
C.N.Hardie/Western Australia/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO 00/92, Member Stuckey-Clarke 25 June 2001
William Risk and Kathleen Mary-Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso 15 April 2002
Smith v Western Australia [2001] FCA 19
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Cheinmora v Striker (1996) 142 ALR 21
Western Australia/Winnie McHenry WO 98/125, Deputy President Franklyn, 28 July 1999
Ward v Western Australia (1996) 69 FCR 208
Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002
REASONS FOR DETERMINATION
Background
[1] On 13 December 2000, the Northern Territory (“the government party”) gave notice pursuant to section 29 of the Native Title Act (“the Act”) that it proposed to grant Exploration Licence 22163(“the proposed tenement”) to Minorco Australia Ltd(“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 253 blocks(a block is approximately 2.9 square kilometres), within the Kilgour locality. The area of the proposed tenement is comprised of the following pastoral leasehold: Pastoral Lease 1021(known as Balbirini) and Perpetual Pastoral Lease 1075(known as Mallapunyah Springs).
[3] On 31 January 2001 a native title determination application was filed with the Federal Court(D 6003/01). The name of the application is “Mallapunyah North” and the applicants are Mr Roy Dixon and Ms Peggy Mawson. The application was registered on l March 2001. The Mallapunyah North application covers that part of the area of the proposed tenement which is not held by the Mambaliya Rrumburriya Wuyaliya Aboriginal Land Trust.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (9 April 2001) after the section 29(4) notification day(13 December 2000). Ms Peggy Mawson and Mr Roy Dixon were the named objectors. The Tribunal has previously determined that Form 4 objections in Group 4 have been properly accepted and that, while a Form 4 cannot be amended in a substantive manner after the statutory 4 month time limit has expired, there is no amendment of a Form 4 by the submission to the Tribunal of such matters as are contained in the contentions of the native title party in the matters before me: see the Decision of Member Sosso on whether the Tribunal has Jurisdiction to conduct an inquiry in Applications No. DO 01/3, DO 01/13, DO 01/13, DO 01/19-23, unreported, 21 December 2001. I agree with and follow Member Sosso’s decision in those matters. I conclude that the Tribunal has jurisdiction to determine this inquiry.
[5] On 1 October 2001 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.
[6] On 11 July 2001 Deputy President Sumner made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. I issued further directions at various listing hearings, the last of which was convened on 5 March 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determining the matter on the papers and I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section l5l of the Act.
The Evidence
Objector’s Evidence
[7] The native title party relies upon an affidavit of Mr Roy Dixon affirmed l October 2001 which is set out in full below:
“1. The area of the Mallapunyah North(D6003/00) native title determination application includes the area of ELA 22163. I have seen a map of the area of the ELA. Now produced and shown to me marked “RD-22163” is a map of the ELA.
2. I’m Junggayi from Three Knob on Balbirini/Carpentaria Downs right up to Walhallow Station, across Mallapunyah Springs Station. That means that if the owner or someone else damages the country, I’ve got to charge him. That country is Mararabana, Mermaid Dreaming. They spread out across the country. There are lots of places for Mararabana.
3. I know the Kilgour River where the old road goes to Kiana My country is right up to Kalabarini. At Mirginma that old Devil came out from Kiana to there. He heard those girls there. He was married to the Mararabana girls at Barraraba. That’s a special place in that Dreaming way. Mararabana were dancing and met up with another mob that came from the desert, Janjanmi, red leg, at Kalabarini. They stopped there.
4. Bararaba(sic) is special because they sing that song there, Mararabana. It’s an open plain; there are not too many lancewood trees there. Barraraba is a big place, about 20-30 kilometres across. It goes right down to Jugingini on Balbarini. The mining company can go there and look around.
5. A big hill north of Barraraba Dam is the one hill they can’t go on top of. That whole hill; it’s Mararabana. There’s no name for that hill. They can’t damage it. They can’t go on top of the Mararabana hill. It’s a round hill. The whole of the hill is covered with lancewood. It’s right up the top of McArthur River, where the bitumen goes over the river. The hill is on the west side of the bitumen.
6. There are lots of places where there is Mararabana Dreaming:
- There is one white gum where the old Kalabarini Station was. The river gum is Karlarbil. There is a big mob of special trees: Snappy Gum and River Gum. They are all Mararabana at Kalabarina(sic).
- Doreen Yard, Yawuyawu, is Mararabana Dreaming. There is Snappy Gum, White Gum, Mountain Gum and River Gum there. That’s where they sing all that song. The company can go there, but they can’t cut anything: no trees or rocks. If they cut anything, they’ll get sick.
- There’s a big mob of sink holes around Barraraba, all part of the Mararabana Dreaming. If you camp there, they throw rocks at you to make you move away. There’s one at Doreen Yard, and one at the black soil plain on Walhallow Station.
- Jugingini on Balbarini/Carpentaria Land Trust, where there’s three rocks standing up.
- The plain at Yawuyawu Creek is Mararabana.
- Some of the Mararabana followed up Kilgour Creek.
- Wirgin: that’s a Mararabana place down from Doreen Yard. There’s a big mob of sinkholes around a big waterhole. The company can go there.
7. There’s a spring at Six Mile Yard. That’s Mararabana: trees and rocks and a big waterhole, with one hill on the north side. People go there, from Mallapunyah Station. Tom Darcy, Fred, Bob Darcy, whitefellas: they know all those sacred sites for Mararabana. Old Ned Kelly Wirriwurna showed them that Dreaming. That Darcy mob won’t show the young fellas. They wait until they’re 30, and tell them not to damage the sites. Nowadays, people go there, hunting turkey, goanna. Darcys let them go. They go every year in the dry time before Christmas, for a couple of days. They come from Borroloola, at Ryan’s Bend(Gordon Lansen), and Goolwinji(Jackson Lansen and Roy Second).
8 .The company can take soil and rock away at Doreen Yard, but not at that Mararabana hill. Mining Company can’t cut the big white trees along the riverbank near Barraraaaba(sic), all the way along the McArthur River, they can’t cut the trees. They can drill but they go to talk to Mingirringgi. That mob’s got to talk to me .And the Mining Company can’t go into that big hill. Outside the river bank they can cut trees.
9. They can drill holes all along up Doreen Yard, and at Yawuyawu Plain. But they can’t drill at Kalabarina, they can’t drill at Mirginma. It’s got a steep side and a flat top, too steep to climb. They can go around the sides. I’ve been up there.
10. Another Dreaming is Wild Pigeon Dreaming, Jugujugumani. There’s a dingo on the West side of Kilgour Crossing. They call him Donkey Hole Yard. They can’t go there, there is one big rock.
11. Kilgour Waterhole is Bandangwuna. A Dingo travelled through there right up to Kiana; some reckon he kept going to Merlin Mine, and Spring Creek. Main Gorge is never dry. It is a special place .The Mining Company can go there.
12. People go hunting and fishing at Kilgour River. They go every year, before Christmas.
13. No good if mining company lets poison go in the river. It’ll kill the fish. It’s OK so long as they make a dam to stop the poison going in the river. We should make them stop it going in the river.
14. If they drill holes they’ve got to cover them up. I want them to cover them up and plant tree. No good they leave him open because some animal might go in…...”
[8] The native title party submitted the following evidentiary material to the Tribunal:
(a)Extracts from the Balbarini/CarpentariaLand Claim No. 160 Report dated 27 January 1999(“the Land Claim Report”), of the Commissioner appointed under the Aboriginal Land Rights(Northern Territory) Act 1976(Cth)(“the Land Rights Act”),being pages 41-45 and 58.
(b)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001; and
(c)The affidavit of Mark Frederick Foy affirmed 6 November 2001.
These two deponents also gave evidence at an oral hearing conducted on 3 and 4 December 2001.
(d)Information provided by the Aboriginal Areas Protection Authority in relation to Aboriginal Sacred Sites within the area of the proposed tenement(‘the AAPA sites information”).
The Government Party’s Evidence
[9] The government submitted its Standard Exhibit as well as the following evidentiary material to the Tribunal:
(a)a topographical map marked with the area of the proposed tenement , location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”), tenure details and any known Aboriginal communities;
(b)A schedule of details of the sacred sites referred to;
(c)Mining Tenement documents, including the licence application and details of any current mining tenement and prior mining tenements granted over the same area;
(d)A Revised Prior Tenement Schedule, prior exploration licence map, previous exploration activity map and schedule and existing title holder map and schedule.
(e)Affidavit of Timothy Milne Gosling sworn 5 December 2001;
(f)Affidavit of Hugh Joseph Bland sworn 29 November 2001.
The Grantee Party’s Evidence
[10] The grantee party led no evidence in the proceedings.
The Parties’ Contentions
[11] The government and native title parties filed extensive contentions in the proceedings and the grantee party advised that it adopted the government party’s contentions. I have considered all of the parties’ contentions in detail and will refer to them with particularity where appropriate.
General Legal Principles
[12] Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are holders… of the native title in relation to the waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[13] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.
Reasoning
Section 237(a) – Interference with carrying on of community or social activities
[14] The Government party in its Statement of Contentions at [14]-[26] set out its submissions as to the proper construction of section 237(a) with which I agree. I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.
[15] The native title party in its Contentions at [43]-[46] contends that:
(a)there are aboriginal communities ‘in the vicinity of” the proposed tenement which are occupied by members of the native title claim group, namely Mallapunyah Springs and Borroloola [ Affidavit of Roy Dixon [7]];
(b)Tablelands Highway is one of several roads “inside, and in the vicinity of, the licence area that are frequently used by the members of the claim group to access the communities……;”
(c)The McArthur River and tributaries and the Kilgour River and tributaries are two of several water bodies in and around the proposed tenement used for fishing, drinking and sustaining sites of significance;
(d)The community and social activities include Foraging[Land Claim Report [4.9]] and hunting, fishing and gathering bush tucker[Affidavit of Roy Dixon [7] and [12]].
(e)The community of native title holders “actively look after country, by visiting and maintaining sites over some or all of the licence area”[Affidavit of Roy Dixon[7] and Land Claim Report[5.7]]
[16] The government party in its contentions in reply at [13]-[19] said:
“13. The two localities mentioned in Paragraph 39 are well outside the proposed licence area.
14. There is an issue of relevance and also of particularity with Paragraphs 44 and 45. If the Objectors are asking the Tribunal to conclude that the potential use of the roads and tracks(both public and private) by the grantee is an interference directly with the carrying on of the claimed activities, it is an insubstantial impact, bordering on the trivial Trivial impacts are not within the scope of s.237(per French J. in Derrick smith at [26]).
15. Any number of other users, Aboriginal and non-Aboriginal, utilize these roads and tracks and any of them could potentially cut up unsealed tracks, cause the dust or noise alleged or cause a member of the native title group to re-consider whether to discharge a firearm………..
16….French J. said [in that paragraph,]:
“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.”
It would be unreal to assume that the native title claim group members can attend to community or social activities on pastoral leasehold in some sort of exclusive zone where impact from other lawful users is not tolerated. These other users need accommodate the lawful activities of the native title claim group members and it must be presumed that concurrent rights holders will respect the co-existent rights of others in relation to pastoral land the subject of exploration activities.
17. As to Paragraph 46, the lack of particularity makes it impossible for the Tribunal to attribute any evidentiary weight to the assertions. The specific locations at which the fishing, hunting and foraging activities are said to occur are patchily identified, the overall range where such activities can be carried [out] isn’t stated; the seasonal variations in the game, fish or article sought, the number of persons engaged in these activities; all are unstated. It is not sufficient to simply assert: “These activities occur over some or all of the licence area, and in its vicinity.”
18. As to the frequency of these activities, Mr Dixon says that “people” go hunting “turkey, goanna” and he states that the frequency of this excursion is: “They go every year, in the Dry Time before Christ-mans(sic), for a couple of days(at paragraph 7 of page 3). Then at paragraph 12: “People go hunting at Kilgour River. They go every year, before Christmas.”
19. As to Paragraphs 47-52 of the Objector’s Contentions, the apprehended interference must be direct, meaning that the act must be the proximate cause of that apprehended interference,(per French J in Derrick Smith at [26])….Moreover, this impact must be substantial. The affidavit material of the Objector simply does not establish the how, when, where and why a substantial impact on the carrying on of any of the claimed community or social activities is likely to occur…”
[17] In my view, what the native title party asserts in these contentions is not supported by the evidence before me. There is no evidence before me of any community or social activities actually conducted at the present time on the proposed tenement which would be directly interfered with by the proposed grant in a substantial and not merely trivial way. I accept the contentions of the government party in coming to this conclusion. Further the evidence of such activities such as it is of fairly infrequent and insubstantial activity. It is the fact that there is no Aboriginal community on the proposed tenement and the topographical map provided by the government party indicates that the two aboriginal communities “in the vicinity of” the proposed tenement are at some distance from the tenement.
[18] The native title party also relies upon the Land Claim Report extracts as evidence of foraging activities. The evidential value of the extracts referred to is not substantial in as much as the licence area is only partially within the area that was subject to the Land Claim. However, even accepting that the Land Claim findings which were made relatively recently in 1999 are relevant to the present issue, the findings only confirm responsibilities and entitlement to forage in respect of that land over which they have primary spiritual responsibility. Both objectors gave evidence in support of the Commissioner’s findings in respect of the right to forage: see [4.9] Land Claim Report. However, what section 237(a) requires, is evidence on the basis of which the Tribunal can conclude that at the present time the objectors actually conduct such activities on the proposed tenement. The findings of the Land Claim Report taken at their highest cannot provide such a basis in circumstances where there is insufficient primary evidence of relevant activities being conducted currently on the tenement by the objectors: see William Risk and Kathleen Mary Mill-McGinness/Corporate Developments Ltd/Northern Territory DO01/77, unreported, Member Sosso, 15 April 2002 at [35]-[38].
[19] The facts relating to the social and community activities likely to be interfered with by the grant of the tenement were peculiarly within the knowledge of the native title party and the existence of such evidence was in fact contended for in its submissions. However, the native title party has failed to produce evidence of those contentions and although there is no evidential onus to be applied, taking the commonsense approach to evidence and applying the test of direct interference explained by Justice French in Smith v Western Australia[2001]FCA 19 I find that it is not likely that the proposed grant will interfere directly with community and social activities of the native title parties.
Section 237(b) – Sites of particular significance.
[20] In Moses Silver at [86]-[107], Member Sosso analysed legal issues raised by the contentions of the government and native title parties in respect of the general legal principles applicable to and the proper construction of section 237(b) which were also raised in similar contentions in this matter. I agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.
[21] So far as section 237(b) is concerned, the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the areas or sites must be “capable of identification” and the nature of their significance to the holders of native title must be explained to the Tribunal: see Western Australia/Winnie McHenry WO 98/125, 28 July 1999. It will usually be the case that evidence relating to particular significance will be peculiarly within the knowledge of the native title party and that, absent documentary evidence, such as the Sacred Sites records, evidence of location and identification will also be peculiarly within the knowledge of the native title party so that failure to produce such evidence may lead to the drawing of an unfavourable inference on the issue taking the common sense approach to evidence: see Carr J. in Ward v. Western Australia(1996) 69 FCR 208 at [217].
[22] The evidence as to such sites produced by the native title party and relied upon in its Contentions at [55]-[68] is found in the affidavit of Mr Dixon, at [3-4](Barraraba), [5](the hill north of Barraraba Dam), [6](Places for the Mararabana Dreaming), [9](Mirginma, Kalabarina, and Yawuyawu Plain, [10](Jugujugumani), [11](Bandangwuna) and in the Land Claim Report [5.7]: see [59]of the Objector’s contentions. Para[5.7] of the Land Claim Report was not in fact provided by the native title party to the Tribunal but I extract it from the Land Claim Report below:
“Site protection. The claimants have been concerned to protect sites on and near the claim area. A number of claimants gave evidence to this effect. Oscar Wilson gave evidence of negotiations with the management of Mallapunyah Springs Station to fence off Dungumini(site 30) to prevent damage by cattle. There is a general belief that adverse consequences to the health of land and people will flow from the damaging of any site.”
That native title party also relies at [55] and [67] of its contentions on [4.5.1]-[4.5.5] and [4.8.3]-[4.8.5] of the Land Claim Report respectively.
[23] The native title party also relies upon the AAPA sites information and map which indicates that on the proposed tenement there are various recorded sites of which three sites,6064-33(Mandabirrimini), 6064-34(Wirgin), both waterholes and 6063-15 (Barraraba, near the Barraba Dam) are located within the tenement on the AAPA map. Site 6063-10 Kilgour Gorge [Bandanggu] is located just inside the tenement’s north eastern boundary on the AAPA map. However, Site 6063-1 [Mirginma/Djandjami] is located south of the tenement’s southern boundary.
[24] The native title party also relies upon the affidavit of Jeffrey Stead who deposes to his belief that it is unlikely that the AAPA Register for any particular area will be accurate and complete for all sites of areas of significance within it. Mr Stead also gave oral evidence at the hearing on 3 December 2001. I refer to my analysis of Mr Stead’s evidence in Roy Dixon/Plenty River Corp. Ltd/Northern Territory, DO 01/51 at [24-25].
[25] In its Contentions at [44]-[46], the government party contends “that the grant is not likely to interfere with any areas or sites of particular significance….for the following reasons:
(b)…., any such sites have the statutory protections offered by the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”). This Act applies to all of the land in the Northern Territory and provides protection for sacred sites as defined in s.3 of the Aboriginal Land Rights Act(Northern Territory)Act 1976(Commonwealth)(“the Land Rights Act”). “Sacred Site” is defined in the Land Rights Act as meaning “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition”. An area or site gains the protection of the legislation whether registered or not. Although all sacred sites would not be sites of particular significance, such definition includes any area or site of particular significance in accordance with the objector’s traditions. The protections include:
(1) Section 33 of the Sacred Sites Act provides that a person (which definition includes bodies corporate) shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the Act or the Land Rights Act. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(2)Section 34 of the Sacred Sites Act provides that a person shall not carry out work on or use a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(3)Section 35 of the Sacred Sites Act provides that a person shall not desecrate a sacred site. Substantial penalties apply, including a fine of up to $20,000 or imprisonment for 2 years for a natural person and a fine of up to $40,000 for a body corporate.
(4) Section 37 of the Sacred Sites Act provides that a person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister’s Certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence. Substantial penalties apply, including a fine of up to $10,000 or imprisonment for 12 months for a natural person and a fine of up to $20,000 for a body corporate.
(c) Section 69 of the Land Rights Act also makes it a criminal offence to enter or remain on land in the Northern Territory that is a sacred site.
(d) Section 24 of the Mining Act relevantly provides that every exploration licence shall, unless expressly waived, varied or suspended in writing by the Minister, be granted subject to the condition that the licensee will…
“(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 ,,otherwise than in accordance with that law.”
(e) The Second Schedule of Conditions includes conditions which specifically reduce the likelihood of interference with sites of particular significance. Conditions 1(b),3,4,12,18 and 20 are referred to as particularly relevant to paragraph 237(b) issues. The compulsory inspection of the Register of Sacred Sites and the mandatory on-site meeting with any native title holders are seen as mechanisms to significantly reduce the likelihood of interference with such sites.
(f) Also the letter of grant of the proposed licence will include endorsements specifically directing the grantee party’s attention to the provisions of the Sacred Sites Act so that, combined with other endorsements and conditions, this militates against reliance on defenses that may be mounted based on an absence of knowledge to offences under the Sacred Sites or Land Rights Acts.(This is stressed in the on-going communications with the grantees.)…..
46. The contextual risk evaluation by the Tribunal need include the following factors:
the regulatory scheme which governs the exercise of the rights under the grant(including the presumption of regularity);
the statutory scheme which protects sacred sites in the Northern Territory;and
prior and current concurrent lawful activities on the same licence area.”
[26] Further, in its Contentions in Reply the government party says at [22]:
(a) Any sites alleged to be of particular significance need be “in relation to the land and waters concerned”; (see paragraph 237(b)NTA). It is unclear whether the named sites are such from the affidavit material or the maps provided. The term “in relation to the land and waters concerned” is submitted to mean that the area or site of particular significance must be within the area the subject of the proposed licence or so close as to be directly and physically affected by exploration activities on the land.
(b) These areas or sites need to have “particular significance”, yet evidence which proves up their status of being “of special, or more than ordinary significance to the native title holders in accordance with their traditions”(per the formulation of Carr J in Cheinmora v. Striker (1996) 142 ALR 21 at 34) is lacking other than the site with no name which is described as being on top of Mararabana Hill (in paragraph 5 of the affidavit of Mr Dixon.) However, the assertion that “all areas and sites have particular significance” (in Paragraph 56 of the Objector’s Contentions) places all sites into a single class making them seemingly incapable of having a special or more-than-ordinary significance.
(c) The terms “of particular significance”,“of significance” and “sacred site” are used interchangeably and confusingly so.”
[27] Although as the government party contends the evidence of particular significance does not clearly emerge from Mr Dixon’s affidavit although many sites are referred to, I am satisfied on the evidence that at least the area referred to as Bararaba in [4] of Mr Dixon’s affidavit, Site 6063-15 on the AAPA, is a site of particular significance and that it is located on the area of the proposed tenement. Similarly, I am satisfied that the hill referred to in [5] of Mr Dixon’s affidavit is located on the tenement and its significance is properly particularized. I am similarly satisfied in relation to Kilgour Gorge referred to in [11] of Mr Dixon’s affidavit. So far as the other sites are concerned, I accept the government party’s contention that there is insufficient evidence upon the basis of which the Tribunal could decide that the requirement of particular significance is made out in respect of them. Further, I do not consider this a site rich area: see Re: Miuriuwung and Gajerrong Peoples (1996) 128 FLR 90.
[28] However, that is not the end of the matter. The Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective, indeed the evidence is to the contrary. Further, I do not find it established before me that the AAPA Sites Register is inaccurate or deficient insofar as it relates to matters relevant to this inquiry or generally. The evidence of Mr Stead did not establish such inaccuracy in any relevant or specific sense in respect of the area covered by the proposed tenement.
[29] In conclusion therefore, in light of the Northern Territory statutory regime for the protection of sacred sites, and applying the presumption of regularity, I find that it is not likely that the three areas or sites of particular significance found to exist on the proposed tenement will be interfered with by the proposed grant.
Section 237(c) - Major Disturbance to land or waters
[30] As to the general legal principles applicable to the proper construction of this section, I concur in and adopt the general legal principles as set out by Member Sosso in Moses Silver at [135-140].
[31] The government party contended at [53]-[60] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party relied on the following legislative provisions:
(a)Section 24(e) Mining Act which prohibits a grantee from carrying out any programme involving substantial disturbance without the prior approval of the Secretary of the Department of Mines and Energy;
(b)Section 23(c) Mining Act which permits a grantee only to extract or remove material for sampling and testing purposes(not productive extraction) and which is reinforced by section 24(b) which makes this a condition of grant;
(c)Section 24(e) Mining Act requires that a grantee party wishing to undertake activities involving substantial disturbance to the surface of the licence area must seek approval pursuant to the section. The grant of the tenement only permits activities associated with exploration;
(d)Section 166(a) Mining Act provides that all exploration licences are granted conditional upon the grantee causing as little disturbance as possible to the environment and complying with written directions to minimize disturbances or to make good any damage and rehabilitate the land;
(e)Section 24(e) Mining Act approvals are subject to compliance with such remedial and activity-specific conditions as are considered appropriate for the protection of the environment;
(f)Conditions 2,7,8,9,12,13,14,15,16,17,18,19 and 20 of the Second Schedule of Conditions pursuant to section 24A Mining Act.
[32] The government party further contended at [61]-[63] that:
(a) The presumption of regularity in this context allows the Tribunal to presume that the discretion by the Secretary will be exercised responsibly within the boundaries of the discretion, including that appropriate remedial conditions will be attached;
(b) Although not defined in the Mining Act, “substantial disturbance” is interpreted, as a matter of administrative practice, to commence with any significant disturbance to the surface of the soil and includes activities such as drilling, access-track clearance and costean/bulk sampling;
(c) Section 24(e) permits effective management of potential disturbances by prohibiting such disturbance without prior written approval, requiring the grantee party to inform the Secretary in advance of the nature and extent of the disturbance activity and to disallow (if necessary) the disturbance or to effectively manage the disturbance and its rehabilitation so that no major disturbance is involved.
(d) Under section 166(2) Mining Act, the remedial conditions attached to the Secretary’s approval under s.24(e) become conditions of grant.
[33] The government party contended in conclusion at [64]:
“Taking into account:
(i)the regulatory scheme which governs the exercise of the rights under the grant;
(ii)the additional statutory checkpoint which seeks to prevent and/or remedy disturbances; and
(iii)the statutory requirement that productive mining activities need proceed through a completely independent future act process than that of exploration licences
the Tribunal will conclude that the grant of the proposed licence does not create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[34] The native title party contended at [74]-[78] of the licence area:
[74]. The objectors are concerned about major disturbance to land or waters within or in the vicinity of the licence area:
a. Roy Dixon is concerned about the company:
i. Cutting trees [8];
ii. Letting poison in the river, and killing the fish [13];
iii.Leaving uncovered drill holes and failing to rehabilitate the country [14].
[75]. Further, in determining whether 237(c) applies, it is necessary to consider the extent and duration of the proposed work, the regulatory regime and the views of the native title claim group [Smith].
[76]. An exploration licence is granted for six years, with options to renew it for up to a further four years [s.29A Mining Act]. After two years and at the end of each year after that, the area of the licence is to be reduced by at least half[s26 Mining Act], unless the reduction is deferred.[s28 Mining Act]. The reductions in area intensify the impact of exploration on the country remaining subject to the licence.
[77] The rights created by the Grantee Party by the grant of an Exploration Licence are set out in the document entitled “Rights conferred under an exploration licence”.
[78]. If the act is performed, the rights of the grantee party would include:
a. Drilling and sampling;
b. The construction and use of tracks, roads, miners’ camps, drill sites and sample sites;
c. Exploration vehicles and machinery using upon existing roads and tracks to access or use the licence area;
d. Setting up camps, with attendant problems of relatively large numbers of people, waste disposal, access roads and fire;
e. Taking and diverting water from waterways within the licence area;.
f. Seismic surveys, which require a straight track cleared over several kilometres;
g. Costeaning, which involves digging a series of trenches across the country with a backhoe, front end loader or small bulldozer;
h. Rotary percussion, which requires a considerable amount of equipment on country;
i. Metallurgical testing, which amounts to mining without the right to remove the product of the activity or to sell it.
[35] The native title party in its Contentions in Reply to the contentions of the government and grantee parties contended at [40]-[73]:
(a)Section 24(e)Mining Act only deals with disturbance to surface area and not with other kinds of disturbance;
(b)The full extent of rights accorded to a grantee are found in sections 23(b)-(d);
(c)Section 23(c) may permit substantial extraction or removal amounting to major disturbance;
(d)An exploration licence permits high impact activities e.g. road construction, drilling, sampling, costeaning and camp construction;
(e)The statutory regulatory regime contemplates substantial disturbance with prior approval of the Secretary but the government party did not address how that discretion is exercised;
(f)Rehabilitation does not mean that major disturbance has not occurred or that rehabilitation may itself involve major disturbance.
(g)The presumption of regularity does not extend to enable the Tribunal to rely on some fetter on the Secretary’s discretion
(h)The Second Schedule Conditions were defective. First, they are not enforceable by the Objector. Secondly, several conditions are subject to the approval of the Minister.
Condition 19’s protection is subject to Ministerial discretion and only deals with disturbances to the surface of the soil;
(j)Condition 20’s protection depends upon Ministerial enforcement and native title holders have no right to stop exploration or otherwise prevent or rectify damage.
[36] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.
[37] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)
[38] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.
[39] There is also before me in this matter evidence relied on by the government party in relation to previous mining activity on the proposed tenement which forms Attachment E to the government party’s Final Contentions. That evidence shows that there has been one mineral lease granted over the proposed tenement previously: MLN 630 and 3 Mineral Claims: MCN 981; MCN 982 and MCN 983 over the period 1972 to 1992. Further, twenty six exploration licences have been granted over the area of the tenement over the continuous periods 1973 to 1977, 1978, 1979, 1980-1982, 1983-2002. However, the only Exploration Licence Application’s for which details are available in relation to activities are:
Exploration Licence 7642 [soil sampling, rock chip sampling, reverse circulation(RC] drilling, stream sediment sampling, stream sediment/gravel sampling and bulk sampling].
Exploration Licence 7817 [stream sediment sampling, stream sediment/gravel sampling].
Exploration Licence 7855 [diamond drilling].
The only mineral claims or mineral lease for which details of activity are available are MCN’s 981-3 [diamond drilling].
[40] Having concluded like Member Sosso, that the generic material before me “highlights that the Northern Territory has in a place a well advanced, integrated and pro-active legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process”, applying the presumption of regularity and having considered the evidence of previous exploration mining activity, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to such land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22163 to Minorco Australia Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
J. E. Stuckey-Clarke
Member
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