Robert Patrick Markham and Others on Behalf of the Wagiman, Dagoman and Jawoyn Peoples (DC01/18)/Northern Territory/Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge - [2002] NNTTA 243

NATIONAL NATIVE TITLE TRIBUNAL

Robert Patrick Markham and Others on Behalf of the Wagiman, Dagoman and Jawoyn Peoples (DC01/18)/Northern Territory/Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge, [2002] NNTTA 243 (29 November 2002)

Application Nos: DO02/51 & DO02/52

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Robert Patrick Markham and Others on Behalf of the Wagiman, Dagoman and Jawoyn Peoples (DC01/18) (native title party)

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Northern Territory Government (Government party)

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Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:           Hon C J Sumner, Deputy President
Place:                 Darwin
Date:                  29 November 2002

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – act not likely to interfere directly with the carrying on of community or social activities – act not likely to interfere with areas and sites of particular significance – act not likely to involve major disturbance - act attracts the expedited procedure.

Legislation:Native Title Act 1993 (Cth) ss 29, 31, 140, 151, 237
Mining Act 1980 (NT) ss 23, 24, 24A, 166
Mining Management Act 2001 (NT) ss 35, 42
Aboriginal Sacred Sites Act (NT) ss 33-35, 36
Aboriginal Land Rights Act (NT) 1976 (Cth))

Cases:Anges Limmerick & Ors/ Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory, NNTT DO01/47, Prof Douglas Williamson QC, 5 August 2002
Arthur Que Noy & Ors/Robert Michael Biddlecombe/Northern Territory, NNTT DO01/114, John Sosso, 19 July 2002
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Don Rory & Ors and Jack Hogan & Ors/Northern Territory/Astro Mining, NNTT DO01/110 and DO01/111, E M Franklyn QC, 10 May 2002
Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, John Sosso, 1 February 2002
Gabriel Hazelbane & Ors; Paddy Huddleston & Ors and Michael Page & Ors/Northern Territory/Norman Sydney McCleary, NNTT DO01/79, DO01/80 and DO01/81, John Sosso, 26 April 2002
Gabriel Hazelbane & Ors/McCleary Investments Pty Ltd/Northern Territory, NNTT DO01/48, Prof Douglas Williamson QC, 11 September 2002
Kathleen Parry & Ors/Buchanan Exploration Pty Ltd/Northern Territory, NNTT DO01/139, John Sosso, 21 October 2002
Kevin Peter Walley & Ors and Robin Boddington & Ors/Western Australia/Giralia Resources, NNTT WO01/179 and WO01/180, Hon C J Sumner, 8 March 2002
Michael Page/Northern Territory/Norman Sydney McCleary, NNTT DO01/78, John Sosso, 3 May 2002
Paddy Huddleston & Ors/NT Gold Pty Ltd & Ors/Northern Territory, NNTT DO01/137, John Sosso, 27 September 2002
Smith v Western Australia (2001) 108 FCR 442
Western Australia/Winnie McHenry, NNTT WO98/125, E M Franklyn QC, 28 July 1999

Counsel for the native title party: Mr Angus Frith

Solicitor for the native title party: Mr Mark Rumler, Northern Land Council

Solicitor for the Government party: Mr Matthew Storey, Solicitor for the Northern Territory

Representative of the Government party: Mrs Karen On, Department of Business, Industry & Resource Development

Representative of the grantee party: Mr Raymond Wooldridge

REASONS FOR DETERMINATION

Background

On 23 January 2002, pursuant to s 29 of the Native Title Act 1993 (‘the Act’/‘NTA’), the Department of Business Industry and Resource Development on behalf of the Northern Territory (‘the Government party’) advised its intention to do two future acts, namely to grant Exploration Licence 9852 (DO02/51) and Exploration Licence 9677 (DO02/52) (‘the exploration licences’) to Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge (‘the grantee party’) under the Mining Act 1980 (NT).
EL9852 is over an area of 6 blocks (20 square kilometres), and EL9677 is over an area of 18 blocks (60 square kilometres). Both Exploration Licence Applications are within the Pine Creek locality. The notices included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 23 May 2002, Robert Patrick Markham, Paddy Huddleston, George Huddleston and Julie Williams on behalf of the native title claim group, the Wagiman, Dagoman and Jawoyn Peoples (‘the native title party’) lodged with the Tribunal objections to the statement that the grant of the exploration licences attracted the expedited procedure. The native title party’s Application for Determination of Native Title (DC01/18 – Bonrook Claim), was registered by the Tribunal on 29 March 2001. The area of the two exploration licences are situated wholly within this claim area.
The Tribunal accepted the objection applications on 24 May 2002.
On 28 May 2002, in accordance with the Tribunal’s normal procedures under the Right to Negotiate Scheme, I gave Directions to the parties to provide contentions and documents for the conduct of inquiries into whether or not the expedited procedure is attracted.
All parties complied with the Directions and at a Listing Hearing on 3 October 2002, the parties advised the Tribunal that there was no application by any party that these matters required an “on country hearing”. All parties advised that they were content for a determination to be made on the papers and I have decided that I can adequately deal with the matters in that way pursuant to s 151 of the Act.
Both these objection applications involve the same parties and the exploration licences adjoin each other. The evidence in relation to each matter is similar and I have decided to consider them together as one inquiry (s 140 NTA).

Contentions and evidence

The written contentions and documents submitted by the parties in each objection are similar but in a number of respects (eg underlying land tenure, sites information and details of current and previous mining tenures) contain information specific to each tenement.
The contentions and documentary evidence which I have considered and had regard to are contained in:

Government party

Contentions of the Government Party, dated 12 and 14 September 2002 (with documents)

Contentions in Reply of the Government Party, dated 3 October 2002.

The Government Party’s Standard Documents revised to 2 August 2002, which are tendered in all expedited procedure objection inquiries.

Native title party

Contentions of the Objectors, dated 19 September 2002 (with documents)

Objector’s Reply to the Contentions of the Government Party, dated 3 October 2002.

The Native Title Party’s Standard Documents dated 9 August 2002, which are tendered on behalf of all native title parties represented by the Northern Land Council in expedited procedure objection inquiries.

Grantee party

Grantee Contentions, dated 26 September, 2002.

Legal Principles

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 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 the native title in relation to the land and 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 and 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.’

I agree with and adopt the principles of the law and findings set out by Member Sosso in Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, 1 February 2002 (‘Moses Silver’) in paragraphs [20] to [47] (predictive assessment, standard of proof, presumption of regularity, evidence of intention, activities outside the proposed tenement, beneficial and protective character of the Act, co-existence of rights with pastoral leases, meaning of the term ‘act’); paragraphs [49] to [62] (s 237(a) - community and social activities); paragraphs [86] to [107] (s 237(b) - sites of particular significance) and paragraphs [135] to [140] (s 237(c) - major disturbance).

The nature of an exploration licence

The activities permitted by an exploration licence granted under s 16 of the Mining Act 1980 (NT) and conditions governing the conduct of these activities have been considered by the Tribunal in numerous determinations starting with Moses Silver. The Government party’s regulatory regime in relation to exploration licences has recently been described in Gabriel Hazelbane & Ors/McCleary Investments Pty Ltd/Northern Territory, NNTT DO01/48, Prof Douglas Williamson QC, 11 September 2002 at paragraphs [28] to [29] and I adopt that description of its main features for the purposes of these determinations.
In summary, s 23 of the Mining Act 1980 (NT) sets out the activities authorised by an exploration licence, which must be carried out subject to the law and in accordance with conditions imposed.
Section 24 provides that every exploration licence will be subject to conditions imposed under s 166 and conditions specified in s 24. Of particular relevance in s 24 are conditions that the licensee will conduct exploration programs and other activities in such a way as not to interfere with the lawful activities or rights of any person on or in relation to land adjacent to the licence area (s 24(j)); and will not interfere with any historical site or object or any Aboriginal sacred site or object declared under Northern Territory law otherwise than in accordance with that law (s 24(k)).

Section 166 imposes specified conditions upon various tenements including exploration licences and such other conditions as the person granting the licence thinks fit.
Section 166(1A) (effective 1 January 2002) provides that all exploration licences are granted subject to the condition that the holder must hold the relevant Authorisation before carrying out on the licence area any exploration operation or works involving substantial disturbance. The relevant Authorisation is one granted by the Minister under Division 2 of Part 4 (ss 35-39) of the Mining Management Act 2001 (NT) (effective 1 January 2002) (and see also Division 3 of Part 4 (ss 40-42)).
Section 24A(1) gives the Minister general powers additional to those derived from ss 24 and s 166 to impose conditions, which may include a condition about ways of minimising the impact of the grant of an exploration licence on registered native title rights and interests including about any access to the land and the way in which anything authorised may be done (s 24A(2)). This section provides the statutory basis for the conditions in the Second Schedule which are imposed on all exploration licences
The Second Schedule Conditions (see full text in DO01/48 - Hazelbane at [28]):

are specifically designed to minimise any impact from exploration on native title rights and interests by ameliorating direct interference with the carrying on of community and social activities by registered native title claimants or holders (Condition 1(a)) or any interference with areas or sites of particular significance in accordance with the traditions of registered native title claimants or holders (Condition 1(b)); and
provide that exploration will be carried out in such a way as to minimise disturbance to the environment (Condition 2). In particular by minimising:
(a)interference with the use of land by other persons;
(b)the disturbance of flora, fauna and other natural resources;
(c)pollution, including soil, water and atmospheric pollution; and
(d)the incidence and effect of soil erosion.

The Second Schedule Conditions provide:

for a licensee to meet with registered native title claimants or holders prior to commencement of exploration activities other than reconnaissance to explain the activities and to have regard to representation made at that meeting about any concerns, including concerns about access procedures to land within the licence area (Condition 6);
for all exploration personnel and their contractors to be instructed on the legal necessity to protect sacred sites (Condition 7); and
for a licensee to consult with the Aboriginal Areas Protection Authority (‘the AAPA’) and inspect the Register of Sacred Sites (Condition 8).

The Authorisation Conditions are that:

all exploration licences are granted subject to a condition that the licensee must hold the relevant Authorisation under the Mining Management Act before carrying out any exploration operations or works involving substantial disturbance (such as drilling, costeaning, gridding, bulk sampling, camp establishment or road construction) (Condition 9);
an application for an Authorisation is to be accompanied by a Mine Management Plan which is to include particulars on the management of environmental issues (Condition 10(a)); and
a granted Authorisation is subject to a condition that the operation comply with the Mine Management Plan (Condition 10(c)).

With respect to minimising environmental impact (Conditions 22-24) there are conditions prohibiting firearms or traps and the killing of wildlife (12), dealing with the removal of infrastructure (13), restricting the use of fire (14), governing the construction of new tracks (15), for the minimisation of the removal of vegetation (16), for the prevention of spread of noxious weeds (17), prohibiting the disturbance or interference with sites or structures of historic significance without Ministerial approval (18), to minimize disturbance to the soil, roads, rock formations, creeks and watercourses (19), for the prevention of contamination of underground and surface water (20), the protection of artesian water from wastage, pollution, deterioration or undue depletion (21) and for rehabilitation of the area in accordance with the Mine Management Plan.

The Second Schedule Conditions also provide for a native title claimant or holder to lodge a written complaint with the Minister relating to exploration activities which adversely affect native title rights and interest, and the Minister may direct that rectification work be carried out or cancel the licence (Condition 25).

Evidence relating to DO02/51 (EL9852)

Land tenure: The land tenure in EL9852 is made up of the following leasehold - a) Perpetual Pastoral Lease 643 (commonly known as Bonrook), b) Perpetual Pastoral Lease 1058 (commonly known as Jindare), c) Crown Lease Term 1886 (commonly known as Bonrook), d.) Crown Lease Perpetual 1659 (commonly known as Bonrook) and e) land comprised in the Rail Corridor.
Native title party’s affidavits: The native title party lodged affidavits of Mr Paddy Huddleston affirmed 12 August 2002, Mr George Huddleston affirmed 9 August 2002, and Mr Joe Huddleston affirmed 13 August 2002.
Affidavit of Paddy Huddleston:
‘I, PADDY HUDDLESTON, of Kybrook Farm, in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1.     I am an applicant and a member of the native title claim group in the Bonrook native title determination application (DC 01/18). I am Wagiman. George Huddleston is my brother. I live at Kybrook Farm near Pine Creek in the Northern Territory. I live on Wagiman country.
2.     The area of the application includes the area of the ELA 9852. I have seen a map of the area of the ELA. Now produced and shown to me marked “PH-9852” is a map of the ELA and the surrounding area.
3.     The area of ELA 9852 is Wagiman country. I can speak for that country.
4.     There is an old wagon road from Kybrook to the Claravale Road, along Copperfield Creek. Copperfield Creek goes by Kybrook. The road comes out just near where Copperfield Creek crosses Claravale Road. Young fellas, like Patrick and George, go hunting there along that back road from Kybrook to Claravale.
5.     They hunt kangaroo, goanna, porcupine and pig. Once the country is burnt, they go hunting everywhere. There are about 5 or 6 Wagiman boys who go, and some others. Sometimes, they walk. Sometimes, they camp at the mine out there, and go hunting around the place. They go every weekend along that wagon road. If they don’t find anything, they’ll set up a dinner camp and go hunting around there on foot. They go hunting with a rifle. If they catch anything, they’ll cut a stick and carry it on their shoulder. Sometimes the old people go.’

Affidavit of George Huddleston:
‘I, GEORGE HUDDLESTON, of Kybrook Farm, in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1.     I am an applicant and a member of the native title claim group in the Bonrook native title determination application (DC 01/18). I am Wagiman. Paddy Huddlestone is my brother. I live at Kybrook Farm and at Benung near Pine Creek in the Northern Territory. I live on Wagiman country.
2.     The area of the application includes the area of the ELA 9852. I have seen a map of the area of the ELA. Now produced and shown to me marked “GH-9852” is a map of the ELA and the surrounding area.
3.     The area of ELA 9852 is Wagiman country. For strangers we have to wet their heads before they go in, and introduce them to our country. I can speak for that country. It is on Bonrook Station.
4.     I know that little road that goes from the Stuart Highway to Copperfield Creek. That’s Wagiman country. That’s the place we come for hunting. We walk all day there hunting. We used to go on tractor. We drive there now. We go look for kangaroo, wild pig. We don’t get in trouble if we go hunting on Bonrook Station. We still go there today; no one stops us.
5.     When the rains start, we go looking for black plums. After the first storm there’s a big mob of bush tucker: plums and berries; a big mob of goanna and kangaroo; porcupine. Sometimes we go camping for a week. We leave on a Sunday. If we run short of sugar we get that honey – sugar bag.
6.     If they explore on that country, you can’t find animals for hunting. I’m worried about that oil or dirt being put into the creeks. It might kill all the good feed: the fish and turtles, all the wildlife.
7.     That mining mob should come and talk to Wagiman about what they do on Wagiman country.’
Affidavit of Joe Huddleston:
‘I, JOE HUDDLESTON, of Kybrook Farm, in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1.     I am a member of the native title claim group in the Bonrook native title determination application (DC 01/18). I am Wagiman. George and Paddy Huddleston are my brothers. I live at Kybrook Farm near Pine Creek in the Northern Territory.
2.     The area of the application includes the area of ELA 9852. The area of ELA 9852 is Wagiman country. I have seen a map of the area of the ELA. Now produced and shown to me marked “JH-9852” is a map of the ELA and surrounding area
3.     Sometimes in the wet time, we go down the highway and park the car. We walk in to the west of the highway and go hunting. We stop and walk in to Copperfield Creek. We catch pigs and goannas. Sometimes we drive along the four wheel drive track west of the Highway, through ELA 9852.
4.     In the camp at Kybrook, we tell the kids stories. When they finish school or at weekends, we take the kids out there. We walk along Copperfield Creek. It is all good hunting country. There are pigs, goannas, kangaroo, porcupines, turkeys, emus, fish. We don’t follow along the creeks; we know the short cuts from point to point.’

Affidavit of Joe Huddleston in DO02/46: The native title party has also filed a copy of an affidavit that was filed in another current objection inquiry - DO02/46 (Gabriel Hazelbane, Lenny Liddy, Paddy Huddleston, Robert Patrick Makham and Tony Kenyon Luwanbi on behalf of the Wagiman, Warai and Jawoyn Peoples/Imperial Granite & Minerals Pty Ltd) which is before Member Williamson. It annexes part of the transcript of evidence given by Joe Huddleston at Kybrook Farm in matter DO01/62 (Gabriel Hazelbane, Lenny Liddy, Paddy Huddleston, Robert Patrick Makham and Tony Kenyon Luwanbi on behalf of the Wagiman, Warai and Jawoyn Peoples/Robert Fisher & Robert Stroud) also currently before Member Williamson.
‘I, JOE HUDDLESTONE of Kybrook Farm, in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1.     I am a member of the native title claim group in the Mary River West native title determination application (DC01/06). I am Wagiman. Paddy and George Huddlestone are my brothers. I live at Kybrook, near Pine Creek, in the Northern Territory.
2.     The area of the application includes the area of ELA 22957. I have seen a map of the area of the ELA. Now produced, and shown to me marked “JH-22957” is map of the ELA and surrounding area.
3.     The area of ELA 22957 is mostly between the Stuart Highway and the old railway line, near Burrundie. Part of the ELA is east of the old railway line. The road to Burrundie from the Stuart Highway passes through the ELA. McKinlay River flows though the ELA.
4.     Most of that area is Wagiman country. Wagiman goes north and east to the old railway line, which passes through the northeastern part of the ELA 22957. I can speak to the Tribunal about the part of the area of land and waters covered by the ELA that is Wagiman country. But for decisions about that Wagiman country, you have to speak to all the Wagiman.
5.     The ELA area is about four kilometres east of ELA 10172. I gave evidence to Professor Williamson of the Tribunal at Kybrook Farm on 16 April 2002 in Tribunal matter DO 01/62 about ELA 10172. I gave evidence with Paddy Huddlestone and Lenny Liddy, but I did most of the talking about Wagiman community or social activities on the area of ELA 10172. Paddy knows I am making this affidavit about ELA 22957.
6.     Now produced and shown to me marked “JH-T 10172” are pages 34-37, 53-56, & 67-69 of the Transcript of evidence in matter DO 01/62 concerning the expedited procedure inquiry into the grant of ELA 10172. I have had those parts of the transcript read to me. They say what Wagiman do on the area of ELA 10172. I confirm that the transcript accurately says what I said.
7.     I confirm that what I said to the Tribunal about the way we go hunting in the wet and in the dry is true. What I said about hunting and fishing also applies to the area of ELA 22957.
8.     In the wet, we drive up the highway or along the old railway line in two cars. We park them, and, leaving one car, walk through the bush, including the area of ELA 22957, back to the other car. While we are walking, we hunt for kangaroos, porcupine. We use guns; sometimes we use a spear. Often there are 8 or 9 married men, and some boys. Meantime, we leave the women at the fishing area. We take our kids and grandchildren and show them how to hunt all through the area. I do that so when I’m gone, they’ll know how to hunt, and how to look after our country.
9.     We go hunting in the dry season as well. We get kangaroos, porcupines, and bush tucker - green plum, bush potato, water yam, sugar bag. There are fishing places we use in the ELA area.
10.   I went fishing in the ELA area on 21 April 2002, after the wet. I went with my wife Maureen, my nephew, and my daughter and her three kids - my grandchildren. We went in one troop carrier. We went for the whole day until the afternoon. We went fishing in the McKinlay River, where it meets the road up to Burrundie. We caught a couple of turtles and some bream. We only go there in the dry; there is too much rain in the wet. I go there at other times in the dry; sometimes I go after work. It is a good place for fishing.
11.   When we go fishing, I tell the kids stories about the country. I teach my grandchildren about our heritage. I tell them about sites on Wagiman country. I tell them what to do. Sometimes, we walk up to the hills in the ELA; sometimes when it is burnt. In April, the grass was too high.
12.   Just Wagiman go hunting there on that Wagiman country; other people can’t get tucker. We talk to that country in Wagiman we tell that country what we are doing there. The country can smell us and knows us. You got to talk to that country in language.
13.   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 and their skin get into the dust of that country.
14.   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.
15.   Wagiman country is west of the old railway line. Mohammed Douglas, who lives at Kybrook, was working up in that area for Acacia Gold, in 1999. They were drilling Box Creek way, near Emerald Springs. Acacia Gold did not come and ask us traditional owners about the drilling. I did not like that. They have to talk to Wagiman about what they do on Wagiman country. For the country on the east side of the old railway line, they’ve got to talk to Jawoyn.
16.   There were Wagiman working on drilling at Union Reef, south of ELA 22957. Robert Liddy, Lenny Liddy’s son, sent some CDEP boys from Kybrook to work there. They took sample bags at Union Reef – bags of rock – the same size as garbage bags. They did not tell us what they were doing there. We did not get any compensation for the sample bags they took.
17.   That mining company should come and talk to Wagiman about what they do on Wagiman country.’

This affidavit provides details of hunting, gathering, fishing and other activities (paras 5-12) which are somewhat more detailed than in the present matter but the proposed tenement in DO02/46 is located some 33 kilometres to the north of EL9852 and that in DO01/62 some 40 kilometres north west of it. I do not understand the native title party to say that the evidence of these activities is relevant to the activities carried out on the areas of the proposed exploration licences and if they were I would not accept their submission. In the present matter the Tribunal will have regard to evidence of community and social activities carried out on or in the near vicinity of the proposed tenements. Activities carried out some 30 or 40 kilometres away are of little relevance (if any).
However, my understanding is that the native title party relies on paragraphs 12-17 as evidence of the native title party’s views generally about the need for the grantee parties to talk to Wagiman about what they do on Wagiman country and concerns about the effect of the exploration activities on Wagiman country. Joe Huddleston is Wagiman and a member of the native title claim group for both these matters and DO02/46 and DO01/62. He is the brother of Paddy and George Huddleston and lives at Kybrook. I accept the evidence in paragraphs 12-17 of his affidavit in DO02/46 as relevant for the purposes contended for by the native title party. I accept that the general concerns expressed would apply in relation to exploration activity on the exploration licences the subject of these proceedings. The evidence amplifies that of George Huddleston (paragraphs [3] and [7]) about his view of the need for the explorer to talk to Wagiman about what they do on Wagiman country.
Aboriginal Communities: There are no Aboriginal Communities located within the boundaries of the proposed tenement. Kybrook Farm is located three kilometres north west of the northern boundary of the exploration licence area and Pine Creek is located 7 kilometres north of it. Barnjan is approximately 14 kilometres from the southern boundary. George Huddleston lives at Benung near Pine Creek (affidavit, paragraph 1), but neither party has provided any details of the exact location of Benung nor of its proximity to the licence area.
Recorded or Registered Sites: There are no areas or sites recorded or registered by the AAPA within the exploration licence area. None of the native title claimants who provided affidavits in DO02/51 have identified any sites of significance in their affidavits in respect of EL9852. There are numerous sites to the north and some to the south but for the most part they are several kilometres away. There is a site (5270-59) a kilometre or so from the southern boundary. The site details provided by the AAPA are that it is a Registered Sacred Site described as Girri Gang, being ‘the billabong on Copperfield Creek located at the end of a four wheel drive track leading in from the Stuart Highway, approximately 10 kilometres south from Pine Creek’. It has a status of 40 which means that the AAPA have documented and evaluated the site and that the Aboriginal custodians have asked that the site be protected.
This site is not mentioned in the evidence of the Huddleston brothers so it is difficult to decide whether it is a site of particular significance within s 237(b). However, it is not necessary to decide the issue as even if it did qualify as such a site it is unlikely to be interfered with. Its location is known to the grantee party and there is no suggestion that they will not obey the law and ensure that there is no interference. The fact that it is not located on the proposed tenement and could only be interfered with by activities incidental to exploration, such as gaining access to the tenement, reinforces the unlikelihood of interference.
Previous and Current Mining Activities: There have been a number of mining tenements granted on, and in the vicinity of the tenement application area and a number which are current in the near vicinity. According to the Government party’s evidence those previously granted date back to 1964, the last having been surrendered in 2001, and include Prospecting Authorities, Exploration Licences, a Mineral Licence and an Extractive Mineral Permit. The more detailed information reveals that in most cases there was no recorded activity available and for the others the activities included rock chip sampling, soil sampling and stream sediment sampling. I infer from this information that most of the previous activity was at a reasonably low level of disturbance.

Evidence relating to DO02/52 (EL9677)

Land tenure: In relation to EL9677 the land tenure is comprised of the following leasehold, a) Perpetual Pastoral Lease 643 (commonly known as Bonrook), b) Crown Lease Term 1886 (commonly known as Bonrook), c) Crown Lease Term 1932 (commonly known as Bonrook), d) Crown Lease Term 1236 (commonly known as Bonrook), e) Land comprised in the Rail Corridor; and f) Land comprised in the Amadeus-Darwin Oil/gas Pipeline (DO02/52).
Native title party affidavits: Affidavits of Paddy, George and Joe Huddleston were lodged in this matter and are similar to those lodged in DO02/51. The differences are as follows:
Affidavit of Paddy Huddleston: The first five paragraphs are identical in each matter. The affidavit in DO02/52 contains an additional paragraph:
6. ‘Cullen Compound is at the corner of the road to Claravale and the Stuart Highway, south of the ELA. There is a boab tree there. An old Wagiman man was buried there in 1947, when the Army was there; it was an Army compound. All the tribes were there: Wagiman, Dagoman, Myilly. It is all Wagiman country.’
Affidavit of George Huddleston: Paragraphs 1, 2, 3, 5, 6 and 7 of the DO02/51 affidavit are repeated in DO02/52 with the following additional paragraphs:

4.     ‘We usually go hunting in the area of the ELA. We don’t get in trouble if we go hunting on Bonrook Station. We still go there today; no one stops us.
5.     We follow that Copperfield Creek through the ELA down to Claravale road. We used to walk to there sometimes. We still go there today. People drive there. We’ve got a back road from Kybrook; it follows that Copperfield Creek. Sometimes we walk along, Paddy and me – we cook kangaroo, pig, porcupine. We walk all day there hunting on the ELA area. We go look for kangaroo, wild pig. Sometimes, I tell Paddy to wait at Claravale turn-off, while me and others walk down through the country.
8.     There is a burial site on a spring just south of the ELA.
9.     There is a Jabal site nearby. It is Green Frog Dreaming where the springs are. That’s a special site. It gives me my name – Jabalgarri. You always get water there; that spring never gets dry.’

Affidavit of Joe Huddleston: This affidavit is identical to that filed in DO02/51.
Affidavit of Joe Huddleston in DO02/46: The same affidavit and annexed transcript filed in DO01/51 were filed in this matter.
Aboriginal Communities: There are no Aboriginal Communities located within the boundaries of the proposed tenement. Kybrook Farm is located seven kilometres north west of the northern boundary of the exploration licence area and Pine Creek is located 11 kilometres north of it. Barnjan is approximately four kilometres from the southern boundary.
Recorded or Registered Sites: There are no areas or sites recorded or registered by the AAPA within the proposed exploration licence area or close to it except for one just outside the southern boundary. This site is identified on the AAPA map provided as 5269-47, Frog Dreaming (Copperfield), and is identified by George Huddleston in his affidavit at paragraph 9. The AAPA advises that it is a Recorded Sacred Site described as ‘a small spring/swamp located adjacent to the Claravale Road between the Copperfield Creek and the Stuart Highway’ with a status of 40 which means that the site has been documented and evaluated by the AAPA and the Aboriginal custodians have asked that the site be protected. Based on the information from the AAPA and George Huddleston’s evidence in paragraph 9 about the special nature of this site to him, I find that this is a site of particular significance to the native title party in accordance with their traditions.
Paddy Huddleston (paragraph 6) also refers to Cullen Compound in a nearby location where an old Wagiman man was buried in 1947. George Huddleston says there is a burial site on a spring just south of EL9677. It is not clear from the evidence whether these are one and the same place or whether the burial site ‘on a spring’ is another reference to the Green Frog Dreaming site. On this evidence it is difficult to make a positive finding about the significance of the Cullen Compound site although in general it can be accepted that burial sites are likely to be sites of particular significance. In any event a finding on this issue is of no consequence because even assuming that there is a second site of particular significance in that area, neither site is likely to be interfered with. They are close to public roads and would not be traversed by the grantee party to gain access to the tenement. There is no reason to suggest that the protective regime in the AAPA Act is not adequate to ensure there will be no interference with them (see below).
Previous and Current Mining Activities: There have been a number of mining tenements granted on and in the vicinity of the tenement application area although none which appear to be current. According to the Government party’s evidence, those previously granted date back to 1965, the last having expired in July 2002, and include Prospecting Authorities, Exploration Licences and Mineral Claims. The more detailed information reveals that in a majority of cases there was no recorded activity available and in all but one of the others the activities included rock chip sampling, soil sampling and stream sediment sampling. On EL4969, current between 30 September 1986 and 29 September 1988, there was more intrusive activity in the form of costean sampling which involved the excavation of a trench by mechanical methods and collection of rock samples.

Evidence from the Mataranka Area Land Claim Report

The native title party has provided the findings of the Mataranka Area Land Claim Report No.29 paras, [7.1.1] and [7.2.6] as evidence and contends that it:
‘is not relied on as direct evidence concerning the community or social activities of the native title claim group. Rather, these paragraphs contain findings concerning, and descriptions of the nature of foraging and the context in which it takes place. It is contended that these findings and descriptions are relevant to these inquiries as they describe an activity, foraging, which is conducted by many members of native title claim groups in the Northern Territory, including members of this native title claim group. The findings and descriptions are of general application and assistance to the Tribunal in considering the nature and extent of the foraging, and of the hunting, fishing and gathering of bush tucker of which there is particular evidence in this inquiry.’
The Tribunal has not in any previous matter formally adopted, pursuant to s 146(b) of the Act, the findings of any Land Claim Report prepared by an Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976. (Don Rory & Ors and Jack Hogan & Ors/Northern Territory/Astro Mining, NNTT DO01/110 and DO01/111, E M Franklyn QC, 10 May 2002 at [11]). In that matter, the Tribunal found that the Reports were irrelevant to the inquiry as they were dated in time and refer only to the right to forage. It said that while a right to forage is an incident of native title, the question in an expedited procedure objection inquiry is whether foraging is engaged in on the area of the exploration licence and likely to be directly interfered with by the grant. Further the Tribunal has said that Land Claim Reports must be viewed with a degree of caution having regard to their age, their statutory background and the whole scheme of the Report. Quoting selected sections from only part of the Report is not satisfactory. (Gabriel Hazelbane & Ors; Paddy Huddleston & Ors and Michael Page & Ors/Northern Territory/Norman Sydney McCleary, NNTT DO01/79, DO01/80 and DO01/81, John Sosso, 26 April 2002 at [28]).
In my view a Land Claim Report can be received into evidence but the use to which it can be put will vary with the circumstances. Reasonably current findings of activities carried out by Traditional Owners who are also registered native title claimants over the specific area of the exploration licence will be relevant, and may be able to be formally adopted or given weight as part of the native title party’s evidence. In other cases they may be of less weight or completely irrelevant.
In the present matter, the native title party has only tendered certain paragraphs of the Report relating to foraging, and for the limited purpose of assisting the Tribunal with evidence of the nature and extent of foraging generally of which there is particular evidence from the native title parties. I have perused the balance of the Report which was published approximately 13 years ago. It relates to an area over 150 kilometres to the south of the exploration licences, does not deal specifically with current activities over the areas of the exploration licences and it is not clear whether any of the Traditional Owners are part of the registered native title claim group in this matter. In these circumstances the Mataranka Report cannot be given any weight as evidence of current activities on the exploration licence areas. I can accept the Report as general evidence of the type and scope of activities which are potentially involved in foraging by Aboriginal people and it is helpful to that extent. However, this evidence cannot be automatically applied to the areas of the exploration licences and will be of little weight unless it is supplemented by specific evidence of community or social activities (including foraging) currently carried out on the exploration licence areas.

The Grantee party’s contentions and evidence

The Grantee party supports the contentions of the Government Party. It says that the syndicate of four applicants for the grants has limited financial resources but professional and in-kind resources to permit an effective mineral exploration programme.
The initial programme of the grantee party involves sampling with a hand held powered auger to a depth of about half a metre. Assaying would be done and data used to generate a drill program using a Jacro rig. The grantee party claims this would generate minimal disturbance as it is only a small rig and the aim is to only drill to bedrock to provide samples for the gold assay on selected targets. The Grantee party’s Application for the grant of an Exploration Licence confirms this proposed work program, with the auger drilling and assaying occurring in the first year after prospecting the area for about three months in the dry season. The Jacro rig drilling would occur in subsequent years.
The grantee party has provided details of their current and subsequent years’ work program. At most it involves drilling but there is no proposal at this stage for more intrusive disturbance such as digging pits, trenches and holes. On the predictive assessment approach the Tribunal is entitled to take into account that the grantee party has no present intention to use the powers granted by an exploration licence to the full extent authorised by the law. It remains possible that the rights given will be authorised to their fullest extent but the fact that this is not currently contemplated indicates that it is less likely that the interference or disturbance referred to in s 237 of the Act will be caused by exploration activities.
There is nothing in the grantee party’s contentions or evidence, or elsewhere which suggests that the presumption of regularity should not apply to them. I have dealt with the matters on the basis that the grantee party will comply with the law and act in accordance with the regulatory regime in place.

Community or social activities

The task of the Tribunal is to decide whether there is likely to be (i.e. there is a real risk) of direct (i.e. proximate and substantial) interference with the carrying on of the community or social activities of the native title party by the grant of the exploration licences. It is a predicative assessment not confined to a consideration of the legal rights conferred by the grant of the exploration licences.
In a recent determination (Kathleen Parry & Ors/Buchanan Exploration Pty Ltd/Northern Territory, NNTT DO01/139, John Sosso, 21 October 2002) the Tribunal made the following comment on assessing the likelihood or not of the grant of a Northern Territory exploration licence directly interfering with the carrying on of the community and social activities of a native title party (at [61]):
‘An important factor in any such assessment in the Northern Territory is the regulatory regime in force governing the granting of exploration licences. It is important to note that the regulatory regime in the Northern Territory has been specifically drafted with native title considerations in mind. This regime attempts to strike an appropriate balance between promoting economic development on the one hand and maintaining and protecting native title rights and interests on the other. This regime is so comprehensive and so well integrated into the decision making process, that in the normal course of events when carrying out a predictive risk assessment, it would be fair to say that it would be unusual for a positive assessment of likelihood of interference being made. This is simply because the drafters of the various legislative provisions have, in my respectful opinion, devised a scheme which in the normal course of events would render it unlikely that exploration would interfere with community or social activities. In that regard I refer to two conditions imposed on grantees pursuant to section 24A of the Mining Act which are illustrative of this general proposition:
… [Second Schedule, Conditions 1 and 2] …
Nonetheless, the existence of this regime does not render a section 237(a) assessment by the Tribunal unnecessary. In each and every inquiry the Tribunal considers the evidence presented, and no matter how proactive and well integrated the regulatory regime is, in certain circumstances it will be possible to find that in fact there is a likelihood of direct interference.’
Other Tribunal Members have endorsed this summation of the situation in the Northern Territory (see for example DO01/48 - Hazelbane, 11 September 2002 at [63]). I also adopt Member Sosso’s findings in relation to the Northern Territory’s regulatory regime and its impact on the Tribunal’s task under s 237(a). The Northern Territory’s regulatory regime is a highly relevant consideration to which considerable weight can be given in determining the likelihood of direct interference with community or social activities but is not conclusive.
The evidence establishes that some members of the native title claim group carry on the activities of hunting, fishing and gathering bush tucker over parts of the exploration licences west of the Stuart Highway on a regular basis. These activities occur along the back road from Kybrook to Claravale (further to the south) which runs alongside Copperfield Creek. Copperfield Creek runs into the south western corner of EL9852. George Huddleston says that they also go hunting on a little road that goes from the Stuart Highway (which crosses the tenement) to Copperfield Creek to the west. Joe Huddleston says members of the group go hunting to the west of Stuart Highway towards Copperfield Creek. He says that they sometimes drive along the four wheel track west of Stuart Highway ‘through ELA 9852’. It is not clear from the contentions and evidence whether the four wheel drive track from the Stuart Highway to Copperfield Creek shown on the map and referred to by Joe Huddleston is the same as ‘that little road’ referred to in George Huddleston’s affidavit (at paragraph 4). If it is then it is outside the area of EL9852, thus lessening the likelihood that any hunting along it will be directly interfered with by the exploration on the tenement. However, I accept that using this road as a means of access for hunting and gathering activities means that some of those activities on either side of it occur on the proposed EL9852.

With respect to EL9677, Copperfield Creek and the back road runs through the south western corner of it to the west of the Stuart Highway, thus locating the hunting, gathering and fishing in that part of the tenement. There is no evidence of community or social activities to the north and east of the Stuart Highway which roughly bisects the area of both tenements
I have accepted Jo Huddleston’s evidence in DO02/46 about the importance to Wagiman of grantee parties talking to them before coming onto country and the implications of them not doing so. While the evidence may have been sufficient under s 237(a) of the Act prior to the 1998 amendments to establish that ‘community life’ would have been directly interfered with because of concerns about failure to introduce strangers to the country in the proper way, it is no longer sufficient now that the section refers to interference with the carrying out of community or social activities (see Kevin Peter Walley & Ors and Robin Boddington & Ors/Western Australia/Giralia Resources, NNTT WO01/179 and WO01/180, Hon C J Sumner, 8 March 2002 at paras [13]-[22], Moses Silver at [50]-[61]. In WO01/179 and WO01/180 I concluded [at 21]:
‘[21] In my view, findings of the kind cited above in Ben Ward, (WO95/11) would no longer on there own be sufficient to sustain an objection to the expedited procedure. There must be evidence relating any spiritual concerns to actual community or social activities and how they are interfered with. Spiritual beliefs which give rise to obligations to look after country may have consequences for traditional custodians under Aboriginal customary law if those obligations are not fulfilled. There may be dispute and dissension amongst a claimant group because of it. But to satisfy s 237(a), there must be evidence of the consequences of this concern or dispute or dissension for the community or social activities of members of the claim group.’
My conclusion is that the evidence about the consequences of the failure of the grantee party to talk to the claimant group before commencing exploration does not establish the likelihood of interference with the carrying on of their community or social activities. In any event the exploration licence will be conditioned to require the grantee party to consult with the claimants before conducting exploration activities which go beyond reconnaissance (Second Schedule, Condition 6).
In his affidavit in DO02/46, Joe Huddleston complains about other mining companies not talking to Wagiman about drilling at Box Creek and taking sample bags at Union Reef without informing Wagiman. These complaints do not relate to the area involved or the grantee party in these proceedings and are of no weight in the present matter. The presumption of regularity means that the grantee party will comply with the regulatory regime and will consult with the native title party before commencing exploration activities (Condition 6). There is no evidence that this grantee party in the past has been in breach of the law such as to call into question their commitment to complying with it in future.
The Tribunal accepts, consistently with the decision of the Federal Court (French J) in Smith v Western Australia (2001) 108 FCR 442, that in deciding this issue regard can be had to whether there are co-existing rights of non-native title holders which may already impact on the community or social activities of a native title party. Pastoral leases over the area have commonly been considered to be one such situation (Paddy Huddleston & Ors/NT Gold Pty Ltd & Ors/Northern Territory, NNTT DO01/137, John Sosso, 27 September 2002 at [55]-[56]). I have had regard to the existence of pastoral leases and activities over the exploration licence areas, although in the absence of actual evidence of how the pastoral activity impacts on the carrying out of community or social activities of the native title party in this specific case, this is not a decisive factor in my determination.
There is also evidence of past exploration activity on both tenements. It is not clear from the Government party’s evidence whether ‘no recorded activity available’ in relation to some of the grants means that there was no activity or that there was activity which, for some reason, was not recorded. Nevertheless, the recorded activities were (with the exception of the costeaning in 1986-1988) at a relatively low level. The maximum stream sample was 5 kilograms. There has been no comment from the native title party about this previous activity, but given its low level that is not surprising. The costeaning took place in the 1980s and is unlikely to be within their current experience.
Evidence of exploration activity at the level previously carried out which has not elicited any comment from the native title party assists in a finding that activity at that level would not interfere with the carrying on of their community or social activities. More intrusive activities have a greater potential to do so but the native title party has no recent experience of it over these areas. For this reason, the evidence of previous activities cannot be used to infer that more intrusive activities would not have an effect on community or social activities. However, it does suggest that, generally, exploration activity is at a low level of disturbance and more intrusive activities are not the norm. On the predictive assessment approach this is a factor that can be taken into account although I also take into account that the grantee party proposes that at least some more intrusive activity (drilling) will occur.
Taking all of the above factors into consideration and in particular the comprehensive regulatory regime in the Northern Territory for the minimisation of the interference and disturbance referred to in s 237, I find that there is not likely to be direct interference with the carrying on of the community or social activities of the native title party by the grant of the exploration licences.

Sites of particular significance (s 237(b))

The protection of Aboriginal Sites: I adopt the findings of Member Sosso in ‘Moses Silver’ at [94]-[107] in relation to the protection of Aboriginal sites in the Northern Territory afforded by the Northern Territory Aboriginal Sacred Sites Act (‘Sites Act’) which establishes the AAPA. I accept that the protection provided to sacred sites (defined by reference to the Aboriginal Land Rights Act (NT) 1976 (Cth)) covers sites of particular significance to a native title party in accordance with their traditions within s 237(b).
It is well established that to fall within s 237(b) a site must be of special or more than ordinary significance (Cheinmora v Striker Resources NL (1996) 142 ALR 21 (at 34)) and the nature of its significance known (Western Australia/Winnie McHenry, NNTT WO98/125, E M Franklyn QC, 28 July 1999). There must be evidence to connect the site to the traditions of the registered native title claimants. That is, the registration or recording of a sacred site under the Sites Act may not on its own qualify it as a site of particular significance under s 237(b). However, registration and recording will be highly relevant particularly as a description and rating of its significance is given from the Register. In this matter the registration of the Frog Dreaming site, its status, George Huddleston’s evidence about its significance to him and the fact that it is located on the country of the native title party was sufficient to make a finding that it was a site of particular significance in accordance with their traditions (see above).
I also accept that any sacred site (whether or not registered or recorded) is protected by the Sites Act (ss 33-35). An exploration licence contains conditions designed to minimise interference with sites of particular significance (see above) and the letter of grant draws a grantee party’s attention to the site protection provisions thus reducing the possibility that a grantee party could rely on the defence in s 36 of the Sites Act that there were no reasonable grounds for suspecting that the sacred site was a sacred site. I also accept the evidence of Jeffrey Stead that the AAPA Register is not conclusive as to whether or not a sacred site exists within a given area.
The task of the Tribunal is to decide whether the grant of the exploration licences is likely to result in (i.e. there is a real risk of) interference with sites of particular significance. In my view it will not. There is the possibility of one such site existing within a kilometre of EL9852. There is one (and possibly two) close to EL9677. Their location is known, they are close to known roads and the grantee party will not need to go near them to gain access to the tenement. There is no evidence of registered sites on the tenements. The regulatory regime and presumption of regularity means that interference is unlikely.

Major disturbance to land or waters (s 237(c))

The task of the Tribunal is to make a value judgement about whether there is likely to be (or a real risk of) major disturbance to land or waters judged from the point of view of the general community but having regard to its effect on local people. The Tribunal can have regard to the local Aboriginal people’s concerns about their customs, traditions and culture (Dann v Western Australia (1997) 74 FCR 391). Remedial rehabilitation work following exploration can be taken into account in making the judgement.
With respect to s 237(c) the Tribunal has consistently found that the Northern Territory regulatory regime for exploration means that there is not likely to be major disturbance to land or waters from it. For example in Michael Page/Northern Territory/Norman Sydney McCleary, NNTT DO01/78, 3 May 2002, Member Sosso said:
‘[59] The government party has submitted a considerable body of material outlining the regulatory regime in force in the Northern Territory which governs the exercise of rights of explorers. I considered that regime in some depth in Moses Silver and I adopt my findings for the purpose of this inquiry. However, on 1 January 2002 the Mining Management Act (NT) came into force which has modified the regulatory regime in some respects. This Act has been considered at some length by Deputy President Franklyn in Gabriel Hazelbane [DO01/40-41] and Angus Riley [DO01/70-71] and I adopt his analysis and findings for the purpose of this inquiry. In particular I agree with the following observations of Deputy President Franklyn in Angus Riley (at [19]): “the provisions of the Amendment Act have significantly added to the strength of the Northern Territory’s already strong legal regime for the management of mining exploration.” In essence, the Northern Territory has an extensive and well integrated regime which has attempted to recognise and accommodate native title rights and interests as part of the process for the granting and supervision of exploration licences. While this regulatory regime does not constitute on its own a complete answer to the type of questions that are posed as part of a section 237(c) inquiry, nonetheless, the existence of such a regulatory superstructure goes some way towards rendering it unlikely that that the grant of a tenement will result in major disturbance to the relevant land or waters.’
In Arthur Que Noy & Ors/Robert Michael Biddlecombe/Northern Territory, NNTT DO01/114, 19 July 2002, Member Sosso reiterated his comments and added (at [43]):
‘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.’
I adopt this summation of the situation which is consistent with that adopted by other Members. The Northern Territory regulatory regime is a relevant factor to which considerable weight can be given but is not conclusive in deciding the likelihood of major disturbance. Each situation needs to be examined particularly to see if there are any special environmental or geological features of the landscape or factors relating to Aboriginal customs or traditions which must be taken into account.
I have had regard to the evidence of Mark Frederick Foy (both affidavit and transcript given in DO01/46) which is provided by the native title parties represented by the Northern Land Council as a ‘generic’ or standard exhibit in all objection inquiries He is a geologist currently employed by the Northern Land Council to advise native title claimants about mining matters. I accept his evidence insofar as it provides a general description of the type of activities which are permitted under the grant of an exploration licence and which therefore assists the Tribunal in deciding whether there will be major disturbance. Otherwise I acknowledge the limitations of the evidence expressed by other Members of the Tribunal and adopt the comments made in Anges Limmerick & Ors/ Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory, NNTT DO01/47, Prof Douglas Williamson QC, 5 August 2002 at [23]-[29].
My conclusion is that the facts of this matter do not take it out of the ordinary. Copperfield Creek runs through the western side of each tenement and there appear to be other creeks in the vicinity from which fish are taken. George Huddleston is concerned that oil or dirt will be put into the creeks and that fish and turtles might be killed. The possibility of this happening is reduced by the regulatory regime which deals with minimisation of disturbance to watercourses and contamination of surface waters. The exploration licences are over pastoral leases indicating that there has already been some level of disturbance and there is also evidence of prior exploration on the tenement but nothing to suggest that this has caused major disturbance to the land. The presumption of regularity applies as there is nothing to rebut the presumption based on the past behaviour or future intentions of the grantee party. My finding is that the grant of the exploration licences is not likely to cause major disturbance to land or waters covered by the grant.

Determination

The determination of the Tribunal is that the grant of exploration licences ELA 9852 to Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge and ELA 9677 to Alistair Quest, Alistair Anderson, Anthony Wilkinson, Albert Batty and Raymond Wooldridge are both acts which attract the expedited procedure under the Native Title Act 1993 (Cth).

Hon C J Sumner

Deputy President
29 November 2002

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Citations

Robert Patrick Markham and Others on Behalf of the Wagiman, Dagoman and Jawoyn Peoples (DC01/18)/Northern Territory/Alistair Quest, Alistair Anderson, Anthony Wilkinson and Raymond Wooldridge [2002] NNTTA 243

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Dwyer v Movements International Movers (WA) Pty Ltd [2000] WASCA 75

Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147