Rosas v Northern Territory
[2002] NNTTA 113
•25 June 2002
NATIONAL NATIVE TITLE TRIBUNAL
May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory, [2002] NNTTA 113
(25 June 2002)
APPLICATION NO: DO 01/98
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
May Rosas (Native Title Party)
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BHP Billiton Minerals Pty Ltd (Grantee Party)
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Northern Territory of Australia (Government Party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 25 June 2002
Hearing dates: 5 April 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 Ian Wallace
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions and evidence – authority of native title deponents to speak for land and waters - Land Claim Reports - registered or recorded sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – whether act interferes with areas and sites of particular significance – whether there is likelihood of major disturbance to land or waters – National Park – draft plan of management - presumption of regularity – 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, 66B, 109, 151, 237
Mining Act (NT) – s 24A, 166, 176A
Mining Amendment Act 2001 (NT) s 14 Schedule 1,
Mining Management Act 2001 (NT) 35, 36, 37, 39
Territory Parks and Wildlife Conservation Act (NT) – ss 11, 12, 17, 18, 19, 122
Cases:Angus Riley & May Foster/Northern Territory/Rodney Johnston & Motoo Sakurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Don Rory & Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002
Gabriel Hazelbane/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002
Little v Western Australia [2001] FCA 1706
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
Peggy Mawson and Roy Dixon/Minorco Australia Limited/Northern Territory DO01/18, unreported, Member Stuckey-Clarke, 1 May 2002
Re Irruntyju-Papulankutja Community (1995) 1 AILR 222
Re Nyungah People (1996) 132 FLR 54
Roy Dixon/Ashton Mining Limited/Northern Territory DO01/11, unreported, Member Stuckey-Clarke, 14 May 2002
Smith v Western Australia (2001) 108 FCR 442
Ward v Northern Territory [2002] FCA 171
REASONS FOR DETERMINATION
Background
[1] On 13 June 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 22736 (“the proposed tenement”) to BHP Billiton Minerals Pty 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 343 blocks (approximately 939 square kilometres) and is comprised of the following:
Crown Lease Term 1308, which is known as “Coolibah”;
Crown Lease Perpetual 842, which is known as “Coolibah”;
Crown Lease Perpetual 891, which is known as “Fitzroy”;
Perpetual Pastoral Lease 1154, which is known as “Victoria River Downs”; andNorthern Territory Portion 3984, which is vacant Crown land.
[3] On 24 April 2001 a native title determination application was filed with the Federal Court (D6029/01). The name given to this application is “Humbert-VRD”, and the Applicant is Ms May Rosas. The application was entered on the Register of Native Title Claims on 24 May 2001. The Humbert-VRD application wholly covers the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 15 October 2001. Technically this was more than four months after the section 29(4) notification day of 13 June 2001 (section 32(3)), however 13 October 2001 was a Saturday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
The named Objector, May Rosas, is also the abovenamed Applicant.
[5] On 25 October 2001, Deputy President Sumner issued Directions for the conduct of the inquiry, and convened a preliminary conference of the parties on 20 November 2001. The various contentions made by the parties have been pursuant to those Directions. On 5 November 2001, Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. Following my appointment a listings hearings was convened on 5 April 2002 and on that date I made further Directions for the supply of material in this inquiry.
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. The Tribunal is required, pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In this instance, having regard to the material before the Tribunal, I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.
[7] The parties have submitted to the Tribunal written contentions, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 14 March 2002.
Contentions in Reply (“GPCR”) dated 4 April 2002.
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 19 March 2002.
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 3 April 2002.
Grantee Party Contentions
Letter from BHP Billiton Minerals Pty Ltd (“Gr1”) dated 25 March 2002.
Evidence
Affidavits of Josie Jones and Jerry Jones
[8] The native title party lodged the Affidavits of Josie Jones and Jerry Jones (Manyjayarri) each of which were affirmed before Mr Edward James Lowe, a Commissioner for Oaths, on 11 December 2001. The Affidavits are set out below:
Affidavit of Josie Jones
“1. My name is Josie Jones and I am a Ngaliwurru woman. I am a Nawurla skin. I am a member of the native title claim group in the Humbert-VRD native title determination application (DC 01/29). I am a traditional owner for part of the country in ELA 22736, which I can see on a map in front of me. I have rights and responsibilities for this country from my father’s side.
2. I was born on the side of Wandawul inside the ELA. It’s my ngabuju country, my father’s mother’s country.
3. One place inside the ELA is Yandurri. Yandurri is a main Dreaming place, for Barramundi; it’s a secret site for men. There was a big fight with all the fish: catfish, barramundi, mullet, rifle fish, Long Tom and bream. The barramundi speared the shark, and that’s why he’s got a mark on the tail. The barra took back that spear and the sting ray followed him back But the sting ray stopped half way at Saltwater Yard in a big cave. The Barramundi kept going all the way back to Yandurri. That’s where we trade dija, hook spear, and milinyin, bamboo spear, for boomerang or anything. We get those spears from Daly way. This is an important part of our tradition. It happened from Dreamtime like that, and old people have done it ever since. A long time ago no woman used to be allowed to go there, but this time they make it easy and girls can go fishing. We use the Dimalarn, River Gum, for initiation today. Girls can see the body painting, but not the ceremony.
4. If the mining people want to go there, I’m worried that they might damage this country – it’s my job to look after it. If somebody from there passes away, we smoke the country. When a stranger goes there, we take them and sing out to the spirits and wetten their head. If new people go there by themselves they might see lights or get sick. I don’t want this to happen.
5. Another place in the ELA is Lilalgurr. This place is important because it is where old men used to initiate young men. It is part of the Emu Dreaming. The Emu made the round hills in the area. We used to go there hunting. Strangers can go there – it is not a dangerous place.
6. If anybody goes there and damages the country, I won’t like it because of the Dreaming. It’s my job to look after that country. If people want to go there they can take me or Margaret McDonald or Betty Smiler, and we can show them where they can go.
7. Sometimes we to go to Lilalgurr to get wood for coolamons, digging for yams, fishing for bream and to look around. We drive from Fitzroy to Dingo Yard. We went there last year in the dry season.
8. Wandang is also in the ELA. It is important because it used to be an initiation place. It’s also a holiday camp, and it’s a good place for hunting for goanna, rock wallaby or echidna.
9. I’m worried that the mining company might frighten away all the animals. The mining company can go look round. If they want to dig they should ask us first, so that we can show them where it’s all right to do so.
10. Kulukukiyung is also important in the ELA. This area is part of the Pigeon, Kulukuk, Dreaming. He flew from Yandurri and stopped there. We go to get mussels there, dugu. We used to get echidna there too.
11. If people want to look around there they can ask me or Roy Harrington or Larry Johns. I’m worried if they damage the country. The country won’t do anything, but it will make people upset.
12. Another place in the ELA is Wandawul. This is part of the Caterpillar Dreaming. If people humbug that country then the caterpillar will make them sick and die. They’ll get something in their hands that’s like leprosy: they feel sick and die. This already happened to people. Old people used to do Yanayanang: make grass dolls for somebody, call their name, and chuck it in a hole on that mountain.
13. There’s a crack in the rock on the other side of Wandawul – you can see right through. It’s called Ngaramalniwung; it’s part of the Emu Dreaming. He came down there from Gologolo near Bradshaw; then he had a fight with the brolga near Paperbark Yard; and that’s why the Emu can’t fly. From there he came to Ngaramalniwung, and from there he went back to Gologolo and stopped there. We used to go there for sugarbag and yam.
14. If anyone wants to go there, that’s OK, but they can’t touch the country at Wandawul, or they’ll get sick and die. One teacher went up the hill and burnt the grass right where the caterpillar dreaming is and he got sick and died.
15. If people want to see that place they should see William Galwaying, Harrington or his brothers and sisters (Wally Paddy, David Paddy, Doris Roberts, Clara Paddy, Jenny Paddy,) or Larry Johns. It’s Gagung country for all of them, father country.
16. I’m worried about the mining company damaging that Ngaramalniwung.”
Affidavit of Jerry Jones (Manyjayarri)
“1. My name is Jerry Jones Manyjayarri. I’m Jabarda skin. I am a member of the native title claim group in the Humbert-VRD native title determination application (DC 01/29). I’m a traditional owner for Stokes Ranges. Part of this country I can see on the map in front of me is inside the ELA 22736 boundary.
2. An important place inside the ELA area is Winyi. This is where the white cockatoo hit the galah on the head with a paddy melon called ‘girdban’ in Ngaliwurru; turkey eat them. The galah went back to Crocodile Hole, called Wuyungug’, near where the yard (Crocodile Yard) is today. The white cockatoo went to Nawulbinbin; that’s on your left hand side when you’re travelling from Timber Creek to Katherine. There’s a rock shelter, Ngarnalangayi, where the cockatoo stopped. It goes right back to the crossing where the Parks and Wildlife took sand once, and I upped them. That’s a registered site.
3. We go to Winyi, chasing goanna, cutting sugarbag, hunting echidna and fishing. If the mining mob go there then I should go too; or if not me, then one of my sons.
4. If the mining mob want to go there, to look around or to dig, they’ll have to ask me first. I can show them where it’s OK to dig and how much. It’s not dangerous but they should respect that it’s important for us to look after the country. Up the hill from Winyi is where a couple of Black Snakes started travelling. They went through Nawulbinbin and to that Wuyuwuj hill where they had sex. They can chase you; you should look out for them anywhere along that Dreaming. If anyone goes in that area, a Black Snake might bite them.
5. A Death Adder stays near Nawulbinbin. My barn.gudi, my cross cousin, told me this story to pass on to young people. If you find one you have to get it, kill it, and smash it up – or else they go killing a lot of people. That area is from Nawulbinbin to Warrawi and it is all inside the ELA. This story is from the Dreamtime.
6. For all the top of the Stokes Ranges, that country, it can close up on you so you’re in a tunnel. You have to go with a traditional owner so that they can sing out to the land: ‘Let us go on this country, leave us here ’good-way’.
7. Nawulbinbin is Joe Creek; it is also in the ELA area. I go there hunting for fish, turtle and barramundi, kangaroo with a 22 shotgun, goanna, and pig. We kill the pigs to get rid of them, gammon, but they’re good eating too. We do a lot of hunting there all the way back of the pub. We get a dinghy to one of the crossings; then you have to carry it to the next bit of water and walk up the hill. There’s a big waterfall in the area.
8. Ngandalingga is another place inside the ELA. There’s a story about an old lady. Munggalimawu, who made a hair belt out of a palm tree. That Duburluj, Bogey Man, picked up that Munggaliwamuwu. Then he found one young girl, a human being girl, who was hunting for that bush grape, magwirin. The girl went picking grapes off a big tree – that Duburluj grabbed her leg, hit her on the head with a rock, put her in his bag, and took her back to Ngandalingga. He raped her. Later when he went away, the old lady let her go. Duburluj gave the old lady a hiding for that when he came back, and went to chase her, but he got speared by her people. We don’t go to that place much. It’s too rough.
9. If the mining people want to go there, we’ll have to go with them. We have to show them where to go in a chopper. Some of that area they can’t get in with a motorcar. Sometimes it’s too wet to travel through there.
10. Wumburriya is another place in the ELA. There’s a woomera there – some old people left it there and we want it to stay there. People use barnad, a nut tree like an apple tree, for killing fish. In the Dreamtime, the bandicoot used that barnad to get fish. We still use it today if the water’s low enough. We go there sometimes, but I’m pretty busy so I haven’t been since the year before last.
11. Warrawi is the last place on the Death Adder Dreaming, which starts near Nawulbinbin. It’s another important place inside the ELA. There’s a big hill with a rock shaped like a Death Adder’s Burrurrl, head. The Death Adder killed one old man, my ngabuju’s (my father’s mother’s) daddy, Magulugurlu. The palm tree’s got good tucker. That old man was going for the tucker. People for that country can go first and sing out to protect strangers from the snake: ‘Leave the thing open for us’. Gumirlarn is the name of a pocket near Warrawi. It’s the name of that palm tree too. We say: ‘Gumirlarn gi garri’, which means he died at that tree. I got to know that country when I was mustering there. There’s a lot of Spinifex there – the Death Adder live in it.
12. If the mining mob wants to go there, we’ll have to go with them. We’re frightened for that old man, they might humbug his bones, disturb them. His body is still there; we’ll have to show them where to go. If they dig in that country, especially near that head part, then people might get sick or Death Adder might come out everywhere. We’re really frightened of that Death Adder; it’s really powerful. Once Harry Butler grabbed a Death Adder and brought it into the pub at Timber Creek. When I saw what he had, I couldn’t wait – I was out of there straight away.”
[9] The government party has raised a number of similar concerns with respect to both of these Affidavits. With respect to the Affidavit of Ms Josie Jones the following contentions were made (GPCR at paras 88-90):
“88. Ms Jones states that she is a member of the native title claim group but does not indicate to which part(s) of the composite native title claim group (see Schedule A of DO1/29 where numerous named sub-groups are set out) she belongs. (She says that she is Ngaliwurru but his does not correlate to the sub-group named in DC01/29.)
89. It is also undeposed as to what authority with which Ms Jones speaks for the broader composite claim group, if at all, and therefore what reliability/weight her evidence could be attributed in this matter. Additionally, there is no independent evidence before the Tribunal that she has been ‘authorised’ to speak on behalf of the claim group or any sub-group thereof.
90. In paragraph 1, it is clear that Ms Jones claims to speak only for ‘part of the country in ELA 22736’. Again, the question begged is, which part?”
[10] The same type of concerns was also raised with respect to the matters deposed in the Affidavit of Mr Jones (GPCR at paras 79-81).
[11] Reliance was placed by the government party on the decision of R D Nicholson J in Little v Western Australia [2001] FCA 1706 in the context of whether the deponents had been authorised to speak on behalf of the claim group or any sub-group thereof.
[12] In that case His Honour considered an Affidavit of a Mr Bynder which showed him to be a Badimia man. He gave evidence in relation to Lake Moore and its significance to the Badimia people. Although His Honour did not set out the Affidavit in his judgment, when referring to the evidence of Mr Bynder together with that of Mr Fleet and Mr Robinson (who are both anthropologists) he said (at [62]): “Those affidavits, with respect to the land included in the exploration licences, attest to the spiritual and cultural significance of Lake Moore; the Kunturu site of significance on the western shore of Lake Moore; and the culturally significant stone pathway across Lake Moore.” Later His Honour dealt specifically with Mr Bynder’s Affidavit, and the submissions the grantee party made with respect to it. These comments are of direct relevance to this inquiry. R D Nicholson J said (at [78]-[79]):
“78. In relation to ‘areas’ and turning to the Affidavit of Mr Bynder, that is an affidavit which suggests that there is a sacred quality attached to the entirety of Lake Moore. For the Grantee it is submitted that for three reasons it could not reasonably form the basis of a conclusion by the Tribunal that the grant of the exploration licences would be likely to interfere with areas or sites of particular significance, in accordance with the traditions of the applicants for several reasons. The first is that Mr Bynder fails to establish that he is properly qualified to speak about the applicants’ traditions in relation to areas or sites of significance. The scope of his evidence is that he is able to narrate a dreaming story. He does not say that he holds any particular position within the community of the Badimia people or that he has actively maintained his contact with this community and its traditions. Secondly, he asserts that Lake Moore is sacred but he does not identify the nature of its sacred quality and what this requires. It is submitted that without knowing this it would be impossible for the Tribunal to have drawn any conclusions as to whether exploration activities would be likely to interfere with that sacredness. Thirdly, he does not address whether Lake Moore is of ‘particular’ significance.
79. As to the first point, it is the case that Mr Bynder does not establish his qualifications to speak for the Badimia people so that his evidence has the weight of one Badimia person. Similarly, as to the third point, I consider a fair reading of the affidavit does arguably show that Lake Moore is of ‘particular’ significance to Mr Bynder but not for the Badimia people generally. Concerning the second point, I proceed on the assumption that spiritual attachment to land cannot presently be excluded as an element of tradition in relation to an area. However, the evidence of Mr Bynder does not go to the nature of the sacredness so that it is not evidence on which a Tribunal could arguably reach a conclusion about likelihood of a real chance or risk of interference, even more so in the absence of any qualification of witness as a spokesman for the area. … It follows that even if the further evidence had been admitted it would not have assisted in establishing the ground under s 237(b).”
[13] There are some difficulties with the two Affidavits submitted by the native title party. As the government party correctly points out, neither of the deponents explicitly deals with their qualifications to speak for the native title claim group with respect to the various sites they have deposed to. Both Mr and Ms Jones do state that they are part of the native title claim group, but do not explicitly and clearly inform the Tribunal their authority to speak for the land and waters concerned.
[14] Further, it is stated in the Native Title Determination Application that the claim group is comprised of the following groups:
(a)Karangpurru;
(b)Gilinygiliny;
(c)Baranangga-ya;
(d)Wumawurd;
(e)Belerrinyin;
(f)Jigayagawun,
(g)Wanimiyin-Yiritjpinti;
(h)Kuwang;
Lupayi
(j)Mayalaniwung;
(k)Mulukurrniwung;
(l)Warnawarnarl;
(m)Wantawul;
(n)Yanturi;
(o)Jutpura; and
(p)Turulmajki.
However, as the government party contends, it is certainly not clear which of these groups either Josie or Jerry Jones belongs to. Ms Jones describes herself as a Ngaliwurru woman and as a Nawurla skin. Mr Jones describes himself as Jabarda skin. Yet, exactly what relationship either of these deponents has to which group or to the claim group as a whole is left unsaid.
[15] The only specific assistance provided to the Tribunal in this regard is contained in the Objector’s Contentions where the following statement is made (OSC at para 33):
“33. The status and authority of the witnesses referred to above is:
a.Jerry Jones is a member of the native title claim group. He has some control of the knowledge and ritual concerning part of the licence area [see Stokes Land Claim Report [4.5.5]. Only those with the proper relationship to country may speak for it. Speaking in public confirms the right of that person to take on this responsibility [Stokes Land Claim Report 4.7.4]].
b.Josie Jones is a member of the native title claim group. She is married to Jerry Jones and is able to speak for country.”
[16] Firstly, with respect to Mr Jones, the native title party claims that he has some control of the knowledge and ritual of the licence area and cites in support of that proposition paragraph 4.5.5 of the Stokes Range Land Claim Report (No 36). While paragraph 4.5.5. discloses no reference to Mr Jones, he is referred to in paragraph 4.5.4. This paragraph deals with an area of land and waters described as “Country 2, Wanimiyn-Yiritjpinti”, which, in the context of the Land Claim, included the whole of the eastern section of the Stokes Range and the north-eastern foothills between Brownies Creek and the Victoria River. All of these areas lie outside the proposed tenement but close to or adjoining the southern panhandle portion. Jerry (and his brother) Georgie Jones are described by Olney J as “senior claimants” and His Honour goes on to say: “Control of the knowledge and ritual concerning the Yiritjpinti area is currently being shifted from the senior living generation (Big Mick) to the generation who will take over from him, in particular, Jerry Jones.” Yiritjpinti was described by Olney J as the whole of the eastern section of the Stokes Range, whilst the site name “Yiritjpinti” refers to a large valley on the eastern side of the land considered in the Stokes Range Land Claim.
[17] In addition to the Stokes Range Land Claim Report, the native title party also sought to rely (OSC at paras 45-49) on findings in the Ngaliwurru/Nungali (Fitzroy Pastoral Lease) Land Claim, Victoria River (Beds and Banks) Land Claim Report (No 47) – (“hereafter referred to as the “Ngaliwurru/Nungali Land Claim Report). This Report was presented by Gray J in his capacity as an Aboriginal Land Commissioner on 22 December 1993. The area under claim in this matter also fell outside the area of the proposed tenement, and was immediately to the west and north west of the land and waters considered by Olney J in the Stokes Range Land Claim Report. In both cases the land and waters under claim did not include the land and waters north of the Victoria River.
[18] Gray J also makes reference to Mr Jerry Jones. He deals with Mr Jones in the context of local descent group 7 – the Wanimiyn-Yiritjpinti. He made these comments (at 3.4.1): “The members of group 7 are lineal descendants of two long deceased brothers, Ngangitjpuru and Niyawilp. Dora Miningjurungnali/Mankura is the only second generation descendant alive; her father’s father was Niyawilp. The other members of the group are all third or later generation descendants. Easily the most prominent member of the group, and its chief spokesperson, is Jerry Jones Manjiari, a third generation descendant in the direct male line of Niyawilp. He and his children and grandchildren constitute a large portion of the group and its most active members.”
[19] Both Land Claim Reports are of some assistance to the Tribunal in this inquiry because, apart from each referring to Mr Jones, both Olney J and Gray J later dealt at some length with the traditional lands of the group identified with Mr Jones and his descendants. The following findings of Olney J deserve quotation at length because they are of relevance in ascertaining the weight that can be placed on the Affidavit of Mr Jones (at 5.6.1 – 5.6.9):
“5.6.1 The senior group 2 claimants are the descendants of two Japijin brothers from whom they are now separated (with one exception) by three generations. They can conveniently be dealt with in three discrete sub-groups.
5.6.2 The most numerous is that headed by the principal spokesman for the whole group, Jerry Jones Manjiari. Jerry Jones has three siblings (Judy Jones Narpalak, Eileen Jones Mitilyirri and Georgie Jones Talmuka). Georgie Jones and Judy Jones have no children but Jerry has eight (Stephen, Susan, Christopher, Jerry Jr, Debra, Lorraine, Daniel and Carol) and Eileen also has eight (Scottie, Joy, Nancy, Celine, Pauline, Kevin, Anthony and Gordon). There are a total of fifteen grandchildren in the following generation.
5.6.3 The second subgroup comprises Dora Mankura, her five children (Adelaide Kankul, Bruce Jigatj, Eugene Paypatj, Freddy Tuytam and Timothy Tarrmurrak) and her nine grandchildren and one great-grandchild.
5.6.4 The remaining subgroup is made up of a group of five claimants who have a common great-grandfather (being one of the two ancestral brothers mentioned above) namely Connie Konkerman, Nancy Kurunkikari, Lisa Jones Warlpi, Charlie Japalawuk and Roger Wajaka. At the next generational level there are thirteen children in all.
5.6.5 At the time of the hearing Big Mick was the pre-eminent source of knowledge about the waytjkan (sugarbag) dreaming but was in the process of transferring control of the knowledge and ritual associated with it to Jerry Jones. The association of waytjkan dreaming with sites in both the Yiritjpinti and Kuwang estates provides an important and close link between the two groups. Big Mick was regarded as a member of both and Jerry Jones gave evidence that Big Mick, Bardi and Peter are part of the Wanimiyn-Yiritjpinti group. For Big Mick and Bardi Wanimiyn-Yiritjpinti is their jaju country. That is the country of their mothers and their mothers’ mothers.
5.6.6 There is evidence that Wanimiyn-Yiritjpinti country extends south from the Victoria River (where the river runs east and west) and west from it where it runs north and south. Beyond the river to the north is said to be Wartaman country and to the east it is Karangpurru. I have already made a finding in relation to the southerly extent of the estate.
5.6.7 Yiritjpinti is the name given to the eastern section of Stokes Range while Wanimiyn is the name for the foothills between Brownies Creek and the Victoria River Crossing. The high country is associated with Waytjkan dreaming. In earlier times, older Janala ancestors were regarded as managing Yiritjpinti while younger brothers managed Wanimiyn. As they grew older, the younger brothers were introduced to the knowledge and ritual associated with Waytjkan and took responsibility for it.
5.6.8 The Attorney-General (NT)’s final submission raised three issues concerning the claim of group 2, namely, the southern extent of the estate (which I have already dealt with), the ownership of the north-eastern portion of the claim area east of Wiliringngayi, and the distinction drawn between “Wanimiyn” and “Yiritjpinti” and its significance for primary spiritual responsibility.
5.6.9 It is said that the evidence relating to the traditional ownership of the northern sector of the claim area (north of Lurrnpu, site 107) is inconclusive. I do not agree that the evidence will not support a finding of traditional Aboriginal ownership by the group 2 claimants. Whilst the submission refers to evidence relating to sites in the vicinity of the area in question, and observes correctly that there is an absence of sites within a fairly large area of escarpment country, there is no question that beyond this area, along the margins of the “great left hand bend” in the Victoria River, there are sites associated with relevant dreamings and having regard to the nature of the country it is not surprising that there are a few sites in areas to which access is difficult. This is not to say that the land-owning group does not exercise spiritual responsibility for the land surrounding the more accessible sites. Given that the Victoria River has been identified on a number of occasions as the boundary of one estate or another, there can be little doubt that country 2 encompasses all of the north-eastern section of the claim area.
[20] Certainly it is clear from the above quote that the boundary of the “estate” for which Jerry Jones is a principal spokesman, is south of the Victoria River when it flows east to west and west of it when it flows south to north. In the context of the proposed tenement, this means that the land and waters for which Jerry Jones is a principal spokesman do not include those areas north of the Victoria River, which is the bulk of the proposed tenement. However, it would include almost all of the panhandle portion of the proposed tenement. This interpretation is consistent with the location of the various sites mentioned in the Affidavit of Mr Jones. Each of the places he mentions (Winyi, Nawulbibin, Ngandalingga, Wumburriya and Warrawi) are located south and west of the Victoria River and within the area of the panhandle. None of the places he mentions are located north of the Victoria River. It is also consistent with the finding of Gray J in the Ngaliwurru/Nungali Land Claim Report (at 4.3.1) that the Wanimiyn-Yiritjpinti country “extends to the Victoria River, but does not cross it.”
[21] The primary evidence produced to this inquiry by the native title party, does not clearly establish what authority Mr Jones has to speak for the sites he mentions. The process I have engaged in, of carefully reading Land Claim Reports, and then attempting on the basis of the limited mapping in the Reports, to correlate references of Olney and Gray JJ (in the context of a quite different enactment and with a different task) to this inquiry, has been neither easy nor very satisfactory. On a reading of both Land Claim Reports which is most beneficial to the native title party, there is material which in indicates that Mr Jones is a senior spokesman for at least some members of the claim group. For the purpose of this inquiry I am therefore prepared to work on the assumption that Mr Jones is either in the process of becoming, or is, the pre-eminent source of knowledge about the waytjkan (sugarbag) dreaming. I am also prepared to assume that Mr Jones would be able to speak on behalf of the other main dreamings identified by Gray J for Wanimiyn-Yiritjpinti country, namely Kamuyu (willy willy or ‘whirly wind’), Yunumpurku (plains kangaroo), Puluka (bandicoot) and Pikiri (white cockatoo) – see 4.3.2. Insofar as Mr Jones recounts the white cockatoo dreaming story about Winyi, I accept that he has the requisite authority to speak for that Dreaming. The bulk of his affidavit, however, relates to stories and sites connected with the Death Adder Dreaming. It is a matter of regret that the native title party did not address the question of whether there is a relationship between the Death Adder Dreaming and those others mentioned by Olney and Gray JJ. Certainly Olney J (at 4.6.2) does make reference to the purul (or death adder) dreaming, but his reference is in passing only. Gray J, on the other hand, makes no mention of a death adder Dreaming in the context of Wanimiyn-Yiritjpinti country. I am not in a position on the basis of the material submitted to this inquiry to make any sensible and conclusive findings about Mr Jones’ authority to speak for the death adder dreaming sites. If Mr Jones does have the knowledge and authority to speak for these sites (and I certainly would not wish to suggest that he definitely does not), then, unfortunately, the Tribunal was not presented with sufficient evidence to justify such a finding. To assume that he has the requisite authority on the basis of the material in the Land Claims Report alone would be, in my respectful opinion, an exercise in unwarranted speculation. In saying this I recognise the point made by Gray J that there was, in the area he was considering, an overlapping of the areas of land associated with different groups and a sharing of Dreamings. As an example, His Honour mentioned the interaction between the Sugar Bag Dreaming and the Barramundi Dreaming – see 3.11.5. The issue however before this inquiry is that neither of the Land Claim Reports demonstrates that Mr Jones, whilst the senior spokesman for his group, has the requisite authority to speak on behalf of the Death Adder Dreamings sites that lie within the proposed tenement. The issue to be determined in this matter is not whether Mr Jones is a senior traditional man who has the undoubted authority to speak for some of the land and waters that were the subject of land claims considered by Olney and Gray JJ, but rather whether there is the necessary evidence before this Tribunal that he has the authority to speak for specific sites located on land and waters falling outside the area of the claims the subject of those Reports, and which lie within the proposed tenement.
[22] I also have some difficulties with the Affidavit of Josie Jones. She is, ostensibly at least, not mentioned in the Report of Olney J. There are references to her in the Ngaliwurru/Nungali Land Claim Report where Gray J accepts that Josephine Jones Tatpung (Josie Jones), her brothers, her children and her grandchildren are members of the Wantawul group – see para 3.10.1. His Honour also points out that for all practical purposes claimants no longer distinguish between the Wantawul and Yanturi groups. He then makes this observation (at 3.11.2): “The marriage of Josephine Jones Tatpung, a member of the Wantawul and Yanturi groups, with Jerry Jones Manjiari of the Wanimiyn-Yiritjpinti group has been a very significant one in cementing ties in relation to the land the subject of the claims; their children are prominent, active and respected members of all three groups.”
[23] Gray J goes on to describe Wantawul country as taking its name from the Wantawul site, which is located on the proposed tenement on the northern side of the Victoria River. He points out that traditionally both Wantawul and Yanturi countries lie primarily to the north of the Victoria River. Sites that are connected with Wantawul country and located within the area of the proposed tenement and which are mentioned by Gray J include Yalyalyi, Yallumparaniwung, Wantawul and Nganyuri. Dreamings associated with the Wantawul include the Tilapurrutut or caterpillar dreaming, the Maana or barramundi dreaming and the head louse dreaming.
[24] Consequently I accept for the purposes of this inquiry that Ms Jones is (in the language of the Ngaliwurru/Nungali Land Claim Report) a Wantawul woman whose country traditionally lies to the north of the Victoria River, and in the area of at least some of that part of the tenement in the general area of Coolibah community. In making this finding, I note that, despite extensive submissions made by the native title party on the Ngaliwurru/Nungali Land Claim Report, not once was the attention of the Tribunal drawn to the relationship of Ms Jones to the Wantawul or the importance of her marriage to Jerry Jones. This is another instance where the Tribunal has been required to read lengthy reports and then attempt to discern which parts are relevant to the subject matter of an inquiry. In the context of numerous expedited procedure objection inquiries, this sort of exercise is not sustainable and I put the representatives of the native title party on notice that I will not be engaging in this sort of labour intensive exercise in the future. It is for the native title party to properly draw relevant parts of these Reports to the Tribunal’s attention, it is not for the Tribunal to engage in this exercise.
[25] While accepting that Ms Jones is a traditional woman from country the subject of the proposed tenement, the real issue is whether she has the authority to speak on behalf of the sites and places outlined in her Affidavit and whether she has the requisite knowledge of those places and sites. The only explanation of her putative authority to speak on behalf of the places mentioned in her Affidavit is that she is a member of the native title claim group and the wife of Jerry Jones. With due respect to the native title party this is a manifestly inadequate explanation of her “qualifications” to speak for the land and waters described in her Affidavit. Moreover, the assertion in the Contentions of the native title party (OSC at para 33) that she is able to speak for country, without providing any evidence to substantiate that assertion, takes the matter no further. The evidence she provides and the manifest lack of information about her authority, is reminiscent of the Affidavit of Mr Bynder considered by R D Nicholson J in Little v Western Australia. The Tribunal is bound by this decision, and certainly it would appear that His Honour’s finding that Mr Bynder’s Affidavit would not have assisted in establishing a ground under section 237(c) could likewise be applied in determining the evidentiary worth of the Affidavit of Ms Jones.
[26] Leaving for a moment the absence of information about the authority of Ms Jones to speak for particular sites, let it be assumed that she has some general authority to speak for country and sites. Even making that assumption, there are problems with her Affidavit with respect to some of the sites she speaks of. For example, when she speaks of Yandurri she says that it is a secret site for men and that only in recent times have women been allowed to go there. However, while the area is still used for initiation ceremonies, women can only see the body painting and not the ceremony. Whether Ms Jones, as a woman, has the authority to speak on behalf of a secret site for men, and whether she is able to inform the Tribunal with authority about the Barramundi Dreaming story and its importance to native title holders, is open to question.
[27] The Tribunal is thus placed in a very difficult position so far as both affidavits are concerned, specifically so far as they relate to matters germane to a section 237(b) inquiry. So far as the material dealing with community or social activities or issues of major disturbance, there is no issue with accepting the material of both deponents. However, when considering evidence about sites of particular significance, Little’s case highlights the pressing need for deponents to outline their right to speak for the areas or sites the subject of their evidence. If they do not, and unless there is other material before the Tribunal, the evidentiary worth ascribed to their Affidavits will be of the same level determined by R D Nicholson J.
[28] The Tribunal, when conducting an expedited procedure inquiry, is required to carry out its functions in a fair, just, economical, informal and prompt way (s 109(1)). In addition, the Tribunal is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Clearly it is important that in an expedited procedure inquiry, the Tribunal look at the evidence and the circumstances surrounding the preparation and presentation of that evidence in a commonsense manner, being fully cognisant of the cultural, geographic, climatic and other considerations that impact on the ability of the various parties to meaningfully participate. In the context of this matter, the Tribunal would not require a native title holder who provides an affidavit dealing, inter alia, with alleged sites of particular importance to demonstrate that he/she has the type of authorisation enumerated by O’Loughlin J in Ward v Northern Territory [2002] FCA 171 at [24]. His Honour was there dealing with evidence of what would constitute authorisation in the context of a section 66B application. When a native title holder says that he/she is speaking for country or for particular areas or sites, then they should specify in their witness statement or affidavit whether they are a member of the relevant native title claim group, what position they hold in the claim group, on what basis they can speak for the country or site, the significance of the country or site and such other information which allows the Tribunal to ascertain that what is being deposed to, is a proper reflection of the traditions of the claim group. If a native title holder cannot, according to the laws and traditions of the claim group, put such information down in writing, the legal representative of the Objector should then seek to have an oral hearing when such evidence can be given in a culturally sensitive manner. If neither of these approaches is taken and the Tribunal is presented with material that does not address the above matters, then the principle enunciated by R D Nicholson J in Little’s case must be applied.
[29] In this matter I am prepared to accept that Mr Jones has some capacity to speak for the country mentioned in his Affidavit (the area south and west of the Victoria River, and specifically the land and waters comprising the panhandle), and, in particular, has the requisite authority to speak on behalf of the white cockatoo dreaming and sites connected with that dreaming. There is not sufficient evidence before this Tribunal which demonstrates that Mr Jones has the requisite authority to speak on behalf of the death adder dreaming and the sites connected therewith. With respect of Ms Jones, I accept that she is a member of the claim group and that her evidence has the weight of one member of the claim group.
Aboriginal Communities
[30] There would appear to be one Aboriginal community located within the boundaries of the proposed tenement. This community is Coolibah, which is located on the northern bank of the Victoria River. On the southern bank, and outside the tenement area, is the community of Fitzroy. Reference is also made (OSC at para 64) to the Victoria River Roadhouse, which is to the south and east of the licence area.
[31] The government party made these submissions (GPCR at para 54):
“Coolibah is mentioned in Paragraph 64 of the Objector’s Contentions as a relevant community but it is uncertain if this is, wholly or partially, a community of relevant native title claimants, the number of residents, whether it is seasonally or permanently occupied. Likewise for Fitzroy. It is uncertain whether the mention of the Victoria River Roadhouse is directed to contending that it is of section 237(a) relevance or for some other purpose.”
[32] It is also pointed out (GPCR at para 55) that neither Josie nor Jerry Jones reside in any of these communities, but rather at Myatt Community at Timber Creek which is approximately 40 kilometres west of the proposed tenement.
[33] The Tribunal has before it no evidence of who resides in the communities named by the native title party. Of particular significance, it is not clear if these communities are comprised of native title holders or not. Certainly the only two persons to provide direct evidence do not reside in or near to these communities, but quite some distance away. Additionally, as the government party highlights, it is not clear whether these are permanent or seasonal communities or the numbers of persons residing there. While the native title party says (OSC at para 64) that they are occupied by members of the native title claim group, no further particulars have been provided.
[34] While I am prepared to assume that these communities do contain native title holders, the failure of the native title party to provide the Tribunal with further and better information about the composition and nature of these communities, has not assisted its objection. There is some useful information in the Stokes Range Land Claim Report about previous settlement patterns (see 4.3.1 – 4.3.3). However, this Report was presented in June 1990, and any statements about which people may have been living at what locality more than a decade ago, cannot be automatically taken as being the situation now. Consequently, I do not regard any statements of settlement patterns circa 1990 in that Report of assistance to the question of current communities and their inhabitants.
Recorded or Registered Sites
[35] The proposed tenement has within its boundaries numerous sites that have either been recorded or registered by the AAPA.
[36] The AAPA has registered two sites which are both located just north of the Victoria River and to the west of the Coolibah community. The first of these (5066-68 Wantawul) is a distinct hill located 5km west of Coolibah Station Airfield while the second (5066-76 Yanturi) is the area surrounding a waterfall at the western end of Tortoise Reach on the Victoria River.
[37] In addition, the proposed tenement also contains approximately 39 recorded sites with a AAPA status of either 10 or 12. A site which has a status of 10, is one made known to the AAPA from a possible variety of sources. In many cases the Authority has not been able to assess the accuracy of the information regarding recorded sites. In contradistinction, a registered site usually has a status of 40 (as do Wantawul and Yanturi), and this signifies that Aboriginal custodians have asked the Authority to protect the relevant site and it has been properly documented and evaluated by the Authority. Consequently, even though a site may be recorded by the Authority, this does not signify that it has been evaluated as a sacred site.
[38] In the area immediately adjacent to the proposed tenement there are a further four registered sites (including one with a AAPA status of 47 and three with a status of 40), and 40 recorded sites, each with a status of either 10 or 12.
[39] It also must be borne in mind that the mere fact of recording or registration of a site by the AAPA does not determine the question of whether that area or site is of particular significance within the meaning of section 237(b). While recording or registration can assist the Tribunal it is by no means determinative of a section 237(b) inquiry – see also Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002 at [10].
Previous Exploration Activity
[40] The area of the proposed tenement has been subject to a number of previous exploration and prospecting grants by the Northern Territory over (at least) the past 35 years. Outlined below are details of prospecting and exploration tenements as supplied by the government party:
Authority to Prospect – AP 2012. 2069, 2632, 2694, 3071
Exploration Licence – EL 78, 1692, 2192, 2308, 2323, 2469, 2470, 2699, 2752, 5442,5443, 5444, 7681, 7682, 8058, 8812,
[41] Maps produced by the government party indicate that previous prospecting and exploration tenements have covered the totality of the proposed licence area. More importantly, mapping also shows that previous exploration activity has occurred over almost all parts of the proposed tenement. In particular the southern portion of the panhandle and the region to the west of the Victoria River has been subject to extensive activity, as has the central and northern portions of ELA 22736 which lie to the north of the Victoria River. The only part of the subject area which has not experienced very much activity is that area near to the northern bank of the Victoria River and to the area around and west of Coolibah. The vast bulk of exploration activity to date in this region has comprised stream sediment sampling.
Nature of the Proposed Exploration Activity
[42] In its Application for the Grant of an Exploration Licence the grantee party provided this information on its proposed work program for the first year of operations:
“ Open file research.
Digitising all available geochemistry and follow-up geophysical data.
Interpretation of aeromagnetic data and geophysical processing.
Reconnaissance geochemical sampling and prospecting, and follow-up analysis.
Airborne geophysics over selected areas.
Ground geophysics of selected targets.
If warranted, RAB drilling of selected areas to validate interpretation and test basement permissiveness.
Office costs.”
[43] The grantee gave this indication of the extent of its commitment in later years should encouraging indicators be obtained during the first year of operations: “Although an expanded drilling program is not budgeted in the first year, it is possible that drilling could take place if progress exceeds our expectations and results warrant.”
[44] Unfortunately, apart from this information the Tribunal has no other evidence about the proposed exploration program of the grantee party or its proposed modus operandi. The grantee party did inform the Tribunal (Gr1) that it had negotiated eight access agreements for exploration licences that were subject to native title claims and that it had also negotiated various agreements with native title holders with respect to exploration licences in both Queensland and Western Australia. Interesting though this information is, it does not assist the Tribunal in determining the risk of interference or disturbance should ELA 22736 be granted to the grantee party. When a grantee party (as in this case) chooses not to submit any substantive contentions and rely on the material produced by the government party, the Tribunal is entitled to assume that the grantee party will, subject to the regulatory regime in force, fully exercise its legal entitlements. For the purposes of this inquiry the Tribunal has operated on that assumption.
Expert Evidence Adduced by the native title party
[45] In addition to the Affidavits of Josie and Jerry Jones, the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy, the transcripts of evidence given by Messrs Stead and Foy to Member Stuckey-Clarke in December 2001 and the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.
[46] I have considered all of this material in a number of inquiries, and for the purposes of this inquiry I adopt my comments at paragraph 23 of Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002. So far as is relevant, I also adopt the analysis and comments of Deputy President Franklyn in Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].
Land Claim Reports
[47] The native title party has sought to rely on the findings of both Olney and Gray JJ in their capacity as Aboriginal Land Commissioners in the previously mentioned Stokes Range Land Claim Report and the Ngaliwurru/Nungali Land Claim Report.
[48] The land and waters under claim in both instances fell outside the area of the proposed tenement. In both cases the land under claim was west of the panhandle section of ELA 22736 and south of that part of the subject area which is located on the northern bank of the Victoria River. Nevertheless the land and waters considered by Olney and Gray JJ are located in close proximity to the subject area, and in both Reports there is a considerable amount of information of relevance to this inquiry. In particular both Reports contain useful information about the relationship and status of Mr Jones, and generally about the Dreamings of this region. Both Judges outline in a very useful fashion the location and nature of the various “estates” and this again has been of relevance for the conduct of this inquiry.
[49] Accordingly, while it is not necessary (or appropriate) for me to adopt the findings etc of both Commissioners in their respective Reports, I do place on record that I have fully read both Reports and have, where appropriate, taken into account the material in those Reports when determining issues in this inquiry.
Legal Principles
[50] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
[51] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
Section 237(a) – Interference with the carrying on of community or social activities
[52] The native title party submitted that the community and social activities of the claim group included (OSC at para 67):
“a. Foraging [Ngaliwurru/Nungali Land Claim Report [4.11]; Stokes Range Land Claim Report [4.7.5], [4.7.6], [4.8.2], [5.3]];
b. Hunting, fishing, and gathering of bush tucker[affidavit of Josie Jones [3], [5], [7], [8], [10], [13]; affidavit of Jerry Jones [3], [7], [10], [11];
c. Collection of wood as firewood and for ceremonial and other purposes, including making artefacts [affidavit of Josie Jones [7]; Stokes Range Land Claim Report [4.8.3]];
d. The gathering of mineral resources for manufacture of tools and implements and for ceremonial purposes [Stokes Range Land Claim Report [4.8.3]];
e. Teaching children about traditional laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas or sites [Stokes Range Land Claim Report [4.7.3]];
f. Religious activities [affidavit of Josie Jones [3]-[5], [8];
g. Quiet enjoyment and camping [affidavit of Josie Jones [8];
h. The community of native title holders actively look after country, by visiting and maintaining sites [affidavit of Josie Jones [4], [12]; affidavit of Jerry Jones [2], [10], [12]]. This activity is conducted by individuals with specific responsibility for that area or those sites.”
[53] The first issue raised, relates to findings by Olney and Gray JJ in their respective Reports on the entitlement to forage. It is clear that both Judges did in fact find a traditional entitlement to forage and that this entitlement or right was still being used. While it is clear that both of these Reports were prepared some time ago (1990 and 1993 respectively), the nature and importance that both Judges placed on foraging to the members of each group is such that it is reasonable and open for me to infer that such foraging activities would be likely to continue to be practised in the relevant claim areas. However, both of these Reports dealt with land and waters outside of the area of the proposed tenement, and it was clear that the Victoria River is an important demarcation line between groups. There is no direct evidence, for example, of foraging activities in the area of the proposed tenement. The Reports, nonetheless, do illustrate that traditional hunting and gathering activities were still an important and ongoing part of the life of the native title holders in this general area a decade ago.
[54] Mr Jones discloses in his Affidavit that he visits the panhandle section of the proposed tenement from time to time for hunting, fishing and recreational activities as well as generally looking after country. While this part of the proposed tenement lies within the Gregory National Park, section 122 of the Territory Parks and Wildlife Conservation Act makes specific provision for the ongoing traditional use of park land and waters by Aboriginal persons. Section 122(1) provides: “Nothing in or under this Act limits the rights of Aboriginals who have traditionally used an area of land or water from continuing to use that area in accordance with Aboriginal tradition for hunting, food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes.” Mr Jones deposes that we go to Winyi “chasing goanna, cutting sugarbag, hunting echidna and fishing.” Winyi is located just south of the Victoria River in the northern most part of the panhandle section. It will be noticed that Mr Jones gives no indication how often he visits Winyi, when was the last time he hunted there, who accompanies him or whether other native title holders also visit Winyi for hunting or other purposes.
[55] The next location he mentions is Nawulbinbin (Joe Creek). He says: “I go there hunting for fish, turtle and barramundi, kangaroo with a 22 shotgun, goanna and pig. … We do a lot of hunting there all the way back of the pub.” Nawulbinbin is located just to the east of Winyi and south of the Victoria River. Again there is no mention of who accompanies Mr Jones or the other matters previously referred. While it is open for the Tribunal to infer that he fishes and hunts in this area, it is not possible to determine how important these activities are to the wider body of native title holders.
[56] Mr Jones also mentions visiting Wumburriya, which is in the middle section of the panhandle and west of the Victoria River. Apparently he fishes there. Significantly he says of this place: “We go there sometimes, but I’m pretty busy so I haven’t been since the year before last.” As Mr Jones deposed his Affidavit in December 2001, it would appear that the last time he visited Wumburriya was in 1999. At best then, visits to this location for community or social activities are intermittent and infrequent.
[57] The response of the government party to the material on community and social activities in the Affidavit of Mr Jones was as follows (GPCR at 83):
“That some persons might engage in hunting, fishing and foraging is accepted but a greater particularity is required to establish that these persons are members of the native title claim group and that these activities are regularly pursued:
(i)on the proposed licence area, and (if so)
(ii)that exploration activities will be the proximate cause of substantial impact on these activities.
In Derrick Smith Justice French expressly rejected the proposition that if there was a collision course possible at any time or any place between the carrying out of any community or social activities of the native title holders and lawful exploration activities, this was a direct interference within the terms of paragraph (a) of s.237 (at [25]). The interference must be such that the impact of the exploration activities on the community or social activities is likely to be substantial and this is not shown on the evidence before the Tribunal. Previous exploration (see Map G in Attachment A of our Contentions, for example) has elicited no history of impact, let alone substantially so, on any activities of the native title claim group.”
[58] The evidence provided by Josie Jones about community and social activities is problematic. Firstly she says that at Yandurri (which is on the northern bank of the Victoria River on the extreme western part of the proposed tenement) “we trade dija, hook spear, and milinyin, bamboo spear, for boomerang or anything. We get those spears from Daly way.” It is not clear who are the people engaging in this trade, how often it occurs and whether this is a contemporary activity (it should be noted that the words “we trade” could be suggestive of current and not historical activity). For the purposes of this inquiry, however, I am prepared to rely on material contained in the Stokes Range Land Claim Report (at 4.8.3) and will infer that it is an ongoing activity and trade (winan) continues to be of importance for native title holders in the manner described by Ms Jones.
[59] Reference is also made to Lilalgurr, a place located in the north west of the proposed tenement. Ms Jones says: “We used to go there hunting”. I take it from this statement, that this activity is historical only as there is no evidence before me and nothing else in her Affidavit which would indicate that hunting still occurs in this area. Conversely she says that “sometimes we go to Lilalgurr to get wood for coolamons, digging for yams, fishing for bream and to look around.” Again it is unclear who engages in this activity, however its frequency can be gleaned from her statement that “We went there last year in the dry season.” As Ms Jones deposed in her Affidavit in December 2001, the last time that she had visited Lilalgurr and engaged in this form of activity was more than twelve months previously.
[60] Ms Jones says that Wandang is a good place for hunting goanna, rock wallaby or echidna. Wandang is situated just to the north of Lilalgurr. Again there is no mention of the frequency of visits to Wandang, however as it is located only about 3 kilometres from Lilalgurr, it is likely that it also has not been visited by Ms Jones for some time.
[61] Finally she mentions Kulukukiyung, a place in the extreme northern part of the tenement, which she says “we go to get mussels … dugu. We used to get echidna there too”. It would appear that echidna is no longer hunted (or no longer available), but that trips are still made to collect mussels. The problem again is that there is no explanation of who goes to get mussels, whether they are native title holders and the frequency of the trips.
[62] The government party made the following submissions on the evidence provided by Ms Jones (GPCR at para 92):
“In relation to community or social activities, her affidavit offers scant particulars and comments similar to those offered in relation to Mr Jones might be offered here. At paragraph 5, she states: “We used to go hunting there” and, in paragraph 10, “We used to get echidna there too” suggesting historical activities not current activities being carried on. At Lilalgarr (sic), where some items are gathered and some hunting and fishing occurs (by the unnamed ‘we’), the last activity she states in paragraph 7 to be ‘last year in the dry season’, that is in mid-2000.”
[63] The primary evidence submitted by the native title party would indicate that there are some community and social activities carried on by some native title holders on the proposed tenement. However, on the whole, the evidence presented is vague and limited. It would appear that at least some of the activities are purely historical and other activities take place irregularly and not very often. It is difficult to ascertain from the Affidavits if the land and waters of the tenement area are regularly used for hunting, fishing and gathering, and if any part of the country is so used, by whom, and whether the users are native title holders.
[64] A reading of the two Land Claim Reports certainly highlights that the general area adjoining the proposed tenement (and especially the area south of the Victoria River) was, traditionally, extensively used for community and social activities by native title holders. Moreover those Reports graphically illustrate that the right to forage and its exercise is inherent in the Ngaliwurru physical and spiritual notions of caring for country – see Stokes Range Land Claim Report at 4.7.5 - 4.7.6. It would be wholly artificial for the Tribunal to ignore the graphic accounts of community and social activities contained in these Reports which certainly give a much fuller and better explanation of the community life in this part of the Northern Territory than would first appear from the primary material produced in this inquiry.
[65] Nonetheless while these Reports demonstrate a far richer tapestry of life, custom and ongoing relationship to country than would appear from reading the Affidavits, they are not focused on the land and waters before this Tribunal. The Commissioners were dealing with different areas, and while it is possible to draw some inferences from their findings in this inquiry at the end of the day it is up to the native title party to alert the Tribunal to the community and social activities now taking place on the proposed tenement.
[66] As mentioned, the evidence in this regard is not extensive. There is some merit in the government party’s assertion (GPCR at para 59) that the “specific locations at which these activities are said to occur are patchily identified, the number of relevant persons engaged in these activities, when they go, the seasonal variations in the game or item; are all unstated. The references in the affidavits of the Jones’ are so general and there are very few specific references to the proposed licence area that contain any useful information upon which to found a likelihood of interference.”
[67] The leading case on the proper interpretation of section 237(a) is Smith v WesternAustralia (2001) 108 FCR 442. French J made these observations about the proper interpretation of this paragraph (at 451):
“The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section.”
[68] The evidence before the inquiry leads to the following conclusions:
(a)the area of the proposed tenement has previously been the subject of fairly extensive exploration activities;
(b)there is no evidence that previous exploration activities have had an appreciable impact on the community or social activities of native title holders, and, specifically, there was no direct evidence adduced by any native title holder of any impact caused by previous exploration on the area of the proposed tenement or in the region generally;
(c)community and social activities by native title holders in the form of foraging, hunting, gathering, fishing, trading and teaching of laws and customs occur on the subject area;
(d)Mr Jones visits the panhandle portion of the proposed tenement on an intermittent basis, mostly for hunting and fishing. The places visited range throughout most of the panhandle portion. He does not specify the frequency of his visits, although at least in the instance of Wumburriya it was clear that he had not been there for around 18 months;
(e)no evidence was provided of the identity of persons, their number, or their status as native title holders, who accompany Mr Jones when he conducts community and social activities in the panhandle portion of the subject area;
(f)Mr Jones deposed to no activities he engages in on the area of the proposed tenement north of the Victoria River;
(g)Ms Jones’ evidence was limited to the area north of the Victoria River and no mention was made of the panhandle portion of the proposed tenement;
(h)It was clear that some of the places and activities mentioned had not been visited and activities not engaged in for some time (Lilalgurr and Wandang) and some activities it would seem are now historical (hunting at Lilalgurr);
(i)Other places and activities were mentioned but there was no detail given of who accompanies Ms Jones on her visits and whether they are native title holders, or, indeed, the frequency of the visits or the importance placed on these activities; and
(j)I accept that trading at Yandurri continues to be engaged in and is an important aspect of the customs and traditions of native title holders.
[69] Exploration licences are granted subject to various conditions mandated by section 24A of the Mining Act (the Second Schedule Conditions). In previous inquiries I have set out at some length relevant conditions including those relating to the bringing of firearms or traps, or the killing of wildlife, on a licence area (Cl 5), removal of all vestiges of exploration activity at the completion of the exploration program (Cl 6), prohibition on the use of fire - subject to approval (Cl 7), prohibition of constructing (unless unavoidable) new tracks etc (Cl 8), keeping the clearing of vegetation to a minimum (Cl 9), minimising disturbance to soil, rocks, watercourses etc (Cl 12), removing all rubbish and waste from the licence area (Cl 13) and taking all precautions necessary to prevent contamination of underground or surface waters (Cl 15). However, in addition to all of these conditions, the Second Schedule Conditions include the following two very important measures:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular by ameliorating:
(a)any interference directly with the carrying on of community or social activities of registered native title claimants or holders; or
(b)any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out its activities in such a way as to minimise disturbance to the
environment of the licence area, in particular, by minimising
(a)interference with the use of land by other persons;
(b)the disturbance of flora and fauna and other natural resources;
(c)pollution, including soil, water and atmospheric pollution;
(d)the incidence and effects of soil erosion.”
[70] An important lynchpin in the regulatory regime in the Northern Territory is the requirement in Clause 18 that, prior to the commencement of exploration activities, the Licensee convene a meeting on the licence area (or the nearest convenient locality) with registered native title claimants or holders to explain exploration activities. Clause 18 specifies the form of the notice and the period of prior notification, and requires the Licensee to have regard to the representations made. The potential importance of properly convening a Clause 18 meeting and properly listening to and taking into account representations made by native title holders is highlighted by Clause 20 which provides:
“Should any native title claimant or holder lodge a written complaint with the Minister that exploration activities are being conducted in a manner that adversely affects native title rights and interests in the licence area, the Minister may do one or more of the following:
(a)seek an explanation in writing about the matter from the Licensee;
(b)request the Licensee attend a meeting with the Minister to discuss the matter;
(c)request the Licensee attend a conference with the Minister and the complainant with a view to resolving the matter;
and having done one or more of the foregoing, may do one or more of the following:
(d)direct the Licensee to carry out rectification work;
(e)carry out rectification work at cost to the Licensee in accordance with s.166(3) of the Mining Act;
(f)subject to the Mining Act, take any other action, including the cancellation of the licence, as the Minister considers appropriate.”
The cumulative effect of this well integrated scheme is:
(a) to require explorer/native title holder consultation prior to exploration work starting;
(b) require the explorer to consider representations made;
(c) give to dissatisfied native title holders a cost effective complaint mechanism to the Minister; and
(d) then, the Minister is empowered with the requisite authority to inquire into such complaints, and, when appropriate, take action including even the cancellation of the licence.
This scheme is not perfect and it is, to an extent, reactive. However, it is focused on ensuring discussions “on the ground” between explorers and native title holders. It is aimed at facilitating dialogue and mutual understanding and appreciation of the concerns, aspirations and the overall intersection of interests between explorers and native title holders. It goes a substantial way towards ensuring that any significant intersection of interests can be disclosed, discussed, and understood, and appropriate action taken so that such intersections can be managed in a mutually satisfactory manner. If they are not, then native title holders have the right and the statutory platform to seek Ministerial intervention. Absent a positive finding by the Tribunal pursuant to section 237(a), the added protections contained in the Second Schedule Conditions go a significant way towards ensuring that any interference to community and social activities of native title holders, by explorers in the Northern Territory, is minimised and is subject to appropriate discussions and scrutiny.
[71] The material presented in this inquiry indicates that there is a likelihood of an intersection between the community and social activities of registered native title claimants and the grantee party exercising its rights under the exploration licence. I am not satisfied however, having regard to the very large area of the proposed tenement, the infrequent and limited nature of the community and social activities, the absence of any evidence that previous exploration activity has impacted upon these activities, and the regulatory regime in force, that there is any real chance or likelihood of any significant interference. Rather I find that if there is any interference it is likely to be minimal in impact and localised in area and time.
Section 237(b) – Areas or sites of particular significance
[72] The native title party made extensive submissions on section 237(b), and, in the circumstances, it is appropriate to set them out (OSC at paras 74 –77):
“74. For members of the native title claim group, the country and significant areas and sites within it, are alive. The country is sentient.
a.Areas or sites of significance are a social and cultural thing. Native title holders interact with the landscape, so they have strong emotional ties to it. Such areas or sites include places where a person was born; where people camped; or where they were conceived [Stead transcript pages 15-16]
b.In some areas, native title holders describe damage to an area or site of significance as like damaging themselves. People say, “if you damage that site you damage me” [Stead transcript page 16].
c.What Europeans often call sacred sites are those areas or sites where Aboriginal people believe that in a past era there were certain ancestors, who might have been half human and half kangaroo, although they’re described as a kangaroo. Native title holders would say that they relate to that ancestor, and that that kangaroo travelled through the country, giving meaning to it, and that at certain places he left his essence there. Native title holders often call areas or sites like this, that come from a Dreaming or from an ancestral being, by a kinship name, such as father or mother [Stead transcript page 19].
d.A Black Snake might bite people anywhere along the Black Snake Dreaming [affidavit of Jerry Jones [4]];
e.The country at the top of the Stokes Range can close up like a tunnel [affidavit of Jerry Jones [6]];
f.If people dig at Gumirlarn the Death Adder might come out [affidavit of Jerry Jones [12]];
g.If people humbug the country at Wandawul, the caterpillar will make them sick and die [affidavit of Josie Jones [12], [14]].
75. The Objector contends that the act is likely to interfere with areas or sites of particular significance, in accordance with their traditions.
Areas or sites of particular significance
76. There are areas or sites of particular significance that the grant of the exploration licence is likely to interfere with;
a. Winyi [affidavit of Jerry Jones [2]];
b. Wuyungug, at Crocodile Yard [affidavit of Jerry Jones [2]];
c. Nawulbinbin, near Joe Creek [affidavit of Jerry Jones [2], [4], [7]];
d. Ngarnalangayi, a rock shelter [affidavit of Jerry Jones [2]];
e. Wuyuwuj [affidavit of Jerry Jones [4]];
f. The top of the Stokes Range [affidavit of Jerry Jones [6]];
g. Ngandalingga [affidavit of Jerry Jones [8]; Stokes Range Land Claim Report [4.6.2]];
h. Wunburriya [affidavit of Jerry Jones [10]];
i. Warrawi [affidavit of Jerry Jones [11]];
j. Gumilarn [affidavit of Jerry Jones [11]];
k. Yandurri [affidavit of Josie Jones [3]; Ngaliwurru/Nungali Land Claim Report [4.8.3]];
l. Lilagurr [affidavit of Josie Jones [5]];
m. Wandang [affidavit of Josie Jones [8]];
n. Kulukukiyung [affidavit of Josie Jones [10]];
o. Wandawul [affidavit of Josie Jones [12]; Ngaliwurru/Nungali Land Claim Report [4.8.2]];
p. Ngaramalniwung [affidavit of Josie Jones [10]].
77. The particular significance of these sites identified by the evidence is:
a. Winyi, Wuyungug, Nawulbinbin, and Ngarnalangayi are places where the white cockatoo went. Ngarnalangayi is a registered site [affidavit of Jerry Jones [2]];
b. The Black Snakes travelled from up the hill from Winyi to Nawulbinbin and to that Wuyuwuj hill. There are lots of Black Snakes along that Dreaming; Black Snakes might bite people if they go there [affidavit of Jerry Jones [4]];
c. The country at the top of the Stokes Range can close up on you if it does not know you [affidavit of Jerry Jones [6]];
d. Ngandalingga has a story. If the grantee party wants to go there, they will have to take members of the native title claim group with them [affidavit of Jerry Jones [8] & [9]; Stokes Range Land Claim Report [4.6.2]];
e. Wunburriya is where the bandicoot used barnad to get fish. There’s an old woomera there [affidavit of Jerry Jones [10]];
“(1A) All exploration licences are granted subject to the condition that the holder of the licence or the holder’s agent must also hold the relevant Authorisation before carrying out on the licence area or mining tenement area any exploration or mining activity.”
The Authorisation referred to is that granted by the Minister under Division 2 of Part 4 of the Mining Management Act 2001. Before an explorer can carry out works which may involve substantial disturbance of the surface of the site, Authorisation must be obtained – see s 35(1) and (5). An explorer when applying for Authorisation must lodge a mining management plan – s 35(3). Such a plan must include information (inter alia) identifying and describing the proposed mining activities, particulars of the implementation of the management system to address environmental issues and a plan and costing of closure activities. Before granting Authorisation the Minister must be satisfied that the management system implemented on the site will promote the protection (inter alia) of the environment on the site and that the management of the mineral resources on site will be in accordance with good mining practice – s 36. Any Authorisation granted is subject to a condition that the explorer complies with the current mining management plan as well as any additional conditions that may be imposed – s 37(1) and (2). These additional conditions can deal with matters such as the protection of the safety and health of persons or the environment, or the outcome of any environmental assessment of mining activities undertaken under the Environmental Assessment Act – see s 37(3). A failure to obtain an Authorisation before carrying out exploration which may result in substantial disturbance to the surface of a site, or failing to comply with an Authorisation that has been granted, can result in relatively substantial monetary penalties. A natural person is liable to a penalty of up to $25,000 and a body corporate of a maximum $125,000 penalty – see ss 35, 39.
[90] These provisions are in addition to those that are imposed by the Minister pursuant to section 24A of the Mining Act. Clause 2 of these Conditions (which is set out at [69]) is specifically designed with section 237(c) in mind, but other standard conditions of relevance include the requirement for the Licensee to take such (practicable) steps to minimise disturbance to the soil, rocks, rock formations, creeks and watercourses of the subject area (Cl 12), to replace topsoil (where there has been soil disturbance) as near as possible to its original profile and colour (Cl 13), to remove rubbish and waste (Cl 14) and to choose drill hole and excavation sites to minimise environmental impact, and after completion of drill holes, to seal them (Cl 17). Further, it is of considerable importance that an explorer is required to convene an on site meeting with native title holders prior to exploration commencing and to have regard to representations made. Any failure to take proper account of the cultural concerns of native title holders about damage to country, and the need for proper protocols to be adopted, could result in a complaint to the Minister and possible cancellation of the exploration licence.
[91] Section 24A(2) itself explains the objective of these conditions when it says: “Conditions under subsection (1) may include a condition about ways of minimising the impact of the grant of the exploration licence on registered native title rights and interests in relation to the land concerned.” It is clear that the cumulative effect of the standard conditions which are imposed, is designed to minimise the impact of exploration activities on those issues dealt with in section 237. While the law has changed in the Northern Territory since 1 January 2002, I see no lowering of the standards I discussed in Moses Silver. Overall, the current regulatory regime provides a well balanced and comprehensive framework for proactively inserting native title considerations into the decision making process and attempting to ensure, as far as is practicable, that those considerations are given proper weight and appropriate protection.
[92] In the context of the land and waters under consideration in this inquiry, I am satisfied that the combination of the various protections afforded to native title rights and interests in the regulatory regime of the Northern Territory is such that the specific cultural concerns outlined in the Affidavits of Josie and Jerry Jones can be accommodated without there being a real risk or chance of major disturbance. The fact that an explorer is required to carry out exploration activities in a manner designed to minimise disturbance of the environment and that explorers must consult with native title holders prior to commencing operations and properly consider reorientations (including those of a cultural nature) made, are important protections. Moreover I am satisfied that the nature of the cultural concerns in the context of the area of the proposed tenement and the location of the areas identified by Josie and Jerry Jones, are such that the regulatory regime would be effective in dealing with these issues. In short on the basis of the specific evidence presented to this inquiry about cultural concerns, and weighing the nature of those concerns in the context of the regulatory regime, I am of the view that there is not a real chance or risk of major disturbance within the meaning of paragraph (c).
[93] The other matter raised by the native title party related to the particular issues that apply to exploration in a national park. The essence of the contentions was that a national park has special physical circumstances (less likely to have been previously disturbed, of high environmental value etc) such that exploration would be likely to result in major disturbance. The Tribunal has accepted since Re Irruntyju-Papulankutja Community (1995) 1 AILR 222 that (at 226) “any physical peculiarity” of a proposed tenement could in certain circumstances “affect a consideration of what is a major disturbance”. Consequently the fact that a portion of the proposed tenement is a national park is potentially of relevance to a section 237(c) inquiry. The native title party made extensive submissions on this point, and they warrant full quotation (OSC at paras 118 – 129):
“118.There are special physical circumstances such that exploration activity of the type identified could result in major disturbance to land or waters, and that rehabilitation will not be adequate to remedy the major disturbance.
119. Much of the licence area is inside Gregory National Park. Mining, and exploration for minerals, can occur inside a national park in the Northern Territory [ss 17(2) Territory Parks and Wildlife Act (“Parks Act”)].
120.However, the fact that the area has been proclaimed as a national park, in itself indicates that the area is environmentally significant according to the standards of the general Australian community, as well as from the point of view of the native title holders.
121.Given the environmental significance of the area of the licence area inside the national park, and its relatively undisturbed nature, there is a greater likelihood that the exploration activities of the grantee party will involve major disturbance from the viewpoint of the community generally [see Dann].
122.The particular significance of parts of the licence area inside Gregory National Park includes:
a. The Park contains major ecosystems and has significant values including wilderness, threatened species and ecological communities [Draft Gregory Plan of Management, section 1.4, page 7].
b. The attributes that give the Park worth, and which are the basis for the Park’s
reservation include Aboriginal cultural, European heritage, scientific, and tourism and recreational values [draft Gregory Plan of Management, section 1.5, page 7].
c. The Park occupies a transition zone between the environmental domains of the Top End and Kimberley regions and the transition between the semi-arid and wet-dry climatic zones. The Park represents the edge of the known range of a number of species [draft Gregory Plan of Management, section 1.5, page 7].
d.Thirty eight plant species found in the Park are classified as rare[draft Gregory Plan of Management, section 1.5, page 7]. More detailed information about flora in the Park is provided in section 4.5, at pages 49-51.
e.There are currently 34 weed species listed for the Park. The majority of these species are either isolated records or low key species not considered environmentally threatening. Most of the Park’s weeds are confined to riverine habitats, spread by wet season floodwaters or are associated with water-holding black soil areas. Eradication of species over large areas is generally not feasible [section 4.6, at pages 52-55].
f.A number of rare and/or vulnerable faunal species of national significance inhabit Gregory national Park, including the Purple-Crowned Fairy Wren, Gouldian Finch, Spectacled Hare-Wallaby and Kimberley Pebble-Mound Mouse [draft Gregory Plan of Management, section 1.5, page 7]. More detailed information about fauna in the Park is provided in section 4.6, at pages 56-58.
g.There are currently ten introduced vertebrate species known to inhabit Gregory National Park: buffalo, feral cattle, donkey, feral dog, domestic mouse, feral horse, feral pig, feral cat, camel, black rat. Erosion of fragile soils, elimination of native animals and plants and the increased potential for the spread of exotic diseases are all legacies of feral animals [see section 4.8, at pages 59-62].
Regime dealing with minerals exploration disturbance to land or waters in national parks
123.A national park in the N.T. is created and regulated under the Parks Act. However, nothing in the Parks Act prevents a grantee party carrying out minerals exploration on a park in accordance with the conditions of the exploration licence [Parks Act ss 17(2)]. Where no plan of management is in force, as is the case with the Gregory National Park, the Parks and Wildlife Commission may, notwithstanding the existence of the exploration licence:
a. preserve or protect the park,
b. protect or conserve wildlife in the park,
c. control authorised scientific research in the park or
d. protect persons or property in the park [Parks Act ss 17(4)]
124.The effect of these provisions is to subjugate the powers of the Parks and Wildlife Commission, where there is no plan of management, to the grantee party’s exercise of its rights under the exploration licence, apart from the matters listed in ss 17(4).
125.The matters listed in ss 17(4) do not allow sufficient power to the Parks and Wildlife Commission to prevent major disturbance within the meaning of par 237(c).
126.The Mining Act restricts the power of the relevant Minister regarding exploration licences (and by extension the grant and exercise of the rights under an exploration licence) in national parks:
a. Before granting such a licence, the Minister administering the Mining Act must
consider the opinion of the minister administering the Parks Act in respect of the proposed grant [par 176A(a) Mining Act];
b.The minister administering the Parks Act may specify conditions to be imposed on an exploration licence if it is proposed to be granted in a wilderness zone [ss 176A(3) Mining Act]; or
c.If proposed exploration or any other activity may cause substantial disturbance to the surface of the land comprising the park, the minister administering the Parks Act may require that directions be given to the holder of an exploration licence. The directions may be in relation to the protection of the environment in the park [ss 176A(5) & (7) Mining Act].
127.None of these provisions require either of the ministers involved to act. They are empowering provisions only, which impose no duties on the ministers, conditional or otherwise, to protect the environment – or to prevent major disturbance to land or waters. It is not feasible to rely on these discretionary provisions to avoid major disturbance
128.The powers set out in ss 176A(3) is subject to the condition precedent that there be a proposal to grant an exploration licence in a wilderness zone. No such proposal is contemplated here.
[94] Unfortunately neither the government or grantee parties have lodged contentions which specifically address the issues raised by the native title party.
[95] Firstly, the fact that part of the proposed tenement forms part of a national park does not raise a presumption that the land and waters in question have special features that would render any exploration activity likely to result in major disturbance. Importantly, section 17(2) of the Territory Parks and Wildlife Conservation Act specifically provides:
“Nothing in this section prevents the carrying out on a park, reserve or wilderness zone of the exploration for, or recovery or processing of, minerals under and in accordance with the conditions of a mining interest or the carrying out of an activity permitted, or the exercising of a right or power conferred or continued in force, by or under the Mining Act, Petroleum Act or section 18A of the Petroleum (Submerged Lands) Act in relation to such a mining interest.”
In short this and other provisions contained in this statute, would seem to allow the advancement of a policy permitting a multiple land use of parks and reserves in the Northern Territory. It is open to be inferred that this is a factor that has been taken into account when determining to declare land and waters as part of a park or reserve. Consequently, the fact that land and waters form part of a national park does not of itself raise a presumption that the area in question exhibits special circumstances such that it would be more likely that major disturbance (as understood by paragraph (c)) would be likely to eventuate should the relevant exploration licence be granted. The native title party submits that the proclaiming of an area as a national park indicates that the area is environmentally significant. No doubt that would most often be the case, but a reading of the Act in no way limits the discretion vested in the Administrator to such circumstances. Thus section 11 of the Territory Parks and Wildlife Conservation Act sets out the Object of Part II (which enables the establishment of parks and reserves) in the following manner: “The object of this Part is to make provision for the establishment and management of parks and reserves appropriate to be established by the Administrator.” The Act does not specify what land and waters would be appropriate for forming part of a park and reserve, indeed the power vested in the Administrator is couched in wide and non-specific language – see s.12. Consequently the declaration of land and waters as a national park in the Northern Territory, may be for any number of positive public policy reasons, and the mere act of declaration cannot lead to the type of presumption suggested by the native title party.
[96] It is also suggested that the fact of declaration presupposes that the area is relatively undisturbed and there is consequently a greater likelihood of disturbance. No doubt this may often be the case. The issue, however, must be determined on a case by case basis, and, the criterion to be kept in mind is major disturbance. In the instance of the area that falls within the Gregory National Park, mapping supplied by the government party indicates that it has been subject to extensive stream sediment sampling over a period of years. No evidence has been adduced that the stream sediment sampling has resulted in any major disturbance of the land or waters concerned. In comparison, if, for example, there was evidence firstly that land was a national park and that it was proposed to clear native vegetation for many kilometres by bulldozer, then it would be open to the Tribunal to find that (irrespective of the rehabilitation of the soil, re-vegetation or any consultation beforehand) this would amount to major disturbance – see Re Nyungah People (1996) 132 FLR 54. In short if,
(a) there is evidence that land is part of a national park or reserve and is undisturbed (and which may have high environmental values), and
(b) there is evidence that the exploration proposed (or previous exploration) has (or had) the potential to significantly disturb the vegetation and soil of the area,
then it would be open to the Tribunal to infer that there is a likelihood of major disturbance. The earmarking of land and waters as a national park or reserve under the Territory Parks and Wildlife Conservation Act is a matter to be taken into account when assessing the likelihood of disturbance, but it does not render a section 237(c) inquiry unnecessary nor does it raise any presumptions.
[97] The native title party then sets out, at some length, the views expressed in the Draft Gregory National Park Plan of Management. This is a draft document released for public comment by the Parks and Wildlife Commission of the Northern Territory in May 2001. It is designed to lay the foundations for the first Plan of Management for the Park, which was declared in 1990. The Tribunal is unaware whether this document has been acted upon or not. For the purpose of this inquiry it is assumed that it has not, and that there is no Plan of Management currently in force. In any event, while the document does provide some interesting information about the Park (including that smaller part of the Park which falls within the proposed tenement), it cannot be sensibly or safely used as evidence for the purpose of this inquiry. As stated, it is only a draft document which has been released for the purposes of public comment and input. When finalised the Plan is still subject to the approval of the Administrator and, even then, may be disallowed by the Legislative Assembly – see ss. 18, 19 Territory Parks and Wildlife Conservation Act. Even if the Tribunal does accept the facts, outlined by the native title party, which flow from the Draft Plan of Management, this does not of itself lead to a finding that there would be a likelihood of major disturbance. In the event that there is no current Plan of Management for the Park, the Parks and Wildlife Commission is still empowered (s 17(4)), with the approval of the Administrator, to perform its functions for the protection and preservation (inter alia) of the park, as well as wildlife, and persons and property in the Park. The native title party contended that this power is not sufficient for the Commission to prevent major disturbance within the meaning of section 237(c). I would tend to agree that if this power stood by itself it would be a totally inadequate measure for dealing with major disturbance. However, the power vested in the Commission has to be read in conjunction with all of the powers vested in the Minister under both the Mining Act and the Mining Management Act. The capacity of the Commission to intervene must be seen as an added protection, and one that is entirely understandable having regard to the fact that the land and waters in question need to be carefully and sensibly managed and protected. It could be said that the powers contained in the Territory Parks and Wildlife Act reflect the special duty owed by the government to its citizens, to take extra care to ensure that national parks and reserves are properly cared for, and even if multiple uses are tolerated, that such a utilitarian approach does not risk impeaching the conservation, heritage or other special underpinnings that have led to the land and waters being brought under the legislation in the first place.
[98] It is also relevant to an assessment of the likelihood of major disturbance, that there is a comprehensive series of provisions in the Mining Act specifically directed at ensuring that exploration in national parks is subject to appropriate consideration at the outset and ongoing review by more than one Minister and one government agency. Thus, the Minister responsible for granting an exploration licence over lands and waters within a national park must not make such a grant “unless he has considered the opinion of the minister administering the Territory Parks and Wildlife Conservation Act in relation to the proposed grant” – s 176A(2)(a) Mining Act. In the event that an exploration licence is granted, the Act imposes a duty on an explorer to give written advice to the Minister (under the Mining Act) of any proposed exploration activity that may cause significant disturbance to the surface of the land. An explorer cannot carry out any such work unless Ministerial approval has been received and the work is carried out in accordance with such direction as the Minister determines – s 176A(5). Moreover, the Minister responsible for administering the Territory Parks and Wildlife Conservation Act can require his Mining Act ministerial colleague to give such directions under s 176A(5) in relation to the protection of the environment in the park as “the minister thinks fit” – s 176A(7).
[99] The native title party contends that these provisions are purely discretionary, and there is no obligation placed on either Minister to act (OSC at para 127). While that is in theory correct, it is difficult to imagine in what other manner the Parliament could have proceeded. These provisions evince a clear statutory intent that when exploration is proposed in a national park, the relevant Ministers are empowered to intervene and make the necessary directions to minimise the risk of major disturbance and to protect its environmental values. While the Act does not mandate that such directions be made, it does enable appropriate Ministerial scrutiny of proposed exploration activities. No Parliament could ever comprehensively mandate in advance, the sort of directions that would inevitably be required in each case. In this instance the Parliament has provided the legislative triggers as well as the legislative powers to the appropriate Ministers, and it has done so in the overall context of a regulatory regime which is aimed at minimising the risk of major disturbance to national parks in the event that exploration or mining activity is being contemplated or carried on. The fact that there is no legislative requirement that there must be Ministerial intervention in each case, does not weaken the force of this provision in the context of a risk assessment under section 237(c). Moreover, the Act is not discretionary in its requirement that an explorer, who believes that exploration may result in significant disturbance, give the necessary advance notification, and comply with any directions made.
[100] In short, the extra protections prescribed by section 176A of the Mining Act are designed to ensure that the special legal status of land comprising national parks and reserves is reflected in the decision making process relating to the grant and supervision of exploration licences.
[101] In summary, I am satisfied on the basis of the evidence before the Tribunal that:
(a)the mere declaration of land or waters as national park in the Northern Territory does not raise a presumption that the grant of an exploration licence would be likely to result in major disturbance;
(b)the land and waters falling within Gregory National Park comprise important ecosystems, threatened species and ecological communities, but the regulatory regime in place will ensure that any exploration activity will not be likely to result in any major disturbance of those areas or species;
(c)there is no evidence that any previous exploration activity has impacted on the land or waters of the national park area, or had an adverse impact on any species or flora of the national park;
(d)the national park has been subject to fairly extensive low impact exploration over a number of years;
(e)the policy underpinning section 17(2) of the Territory Parks and Wildlife Conservation Act is to permit multiple land use of parks and reserves, and in particular to specifically authorise mining exploration;
(f)in any event, section 176A of the Mining Act contains a number of provisions designed, cumulatively, to impose an added duty of care on explorers and to arm both the Minister responsible for mining and the Minister responsible for national parks, with the requisite power to impose directions on an explorer to minimise the risk of exploration activity resulting in major disturbance to land and waters. Importantly, the empowering of the Minister responsible for national parks with a proactive role in setting directions aimed at protecting the environment of national parks, ensures that the decision making process involves more than one Minister and more than one government agency, and specifically inserts into this process a focus not just on the promotion of exploration but also on environmental protection;
(g)it is not open to the Tribunal, on the basis of the material before it, to assume that simply because land or waters have been declared a national park or reserve that they are either in pristine condition, undisturbed, environmentally significant, or inevitably exhibit special physical circumstances. It is up to the party suggesting these matters to produce evidence to that effect, and reliance on a declaration under the Territory Parks and Wildlife Conservation Act is not sufficient of itself; and
(h)the Gregory National Park Draft Plan of Management is not of itself a document that would allow the Tribunal to form a view about the Park. It is a document circulated for discussion purposes. It has, apparently, not yet been accepted by the Administrator nor has it been laid before the Legislative Assembly. The Tribunal has considered this document and carefully perused it, but it is not open to the native title party to simply lodge a copy of this document and seek to rely on it, without further explanation.
[102] I am satisfied, based on the evidence of previous exploration on the area of the proposed tenement, the regulatory regime governing exploration and the fact that no evidence has been produced indicating that previous exploration activities have resulted in any deleterious impacts on the relevant land and waters, that the grant of the exploration licence would not be likely to result in major disturbance or to create rights whose exercise is likely to result in major disturbance within the meaning of that term in section 237(c).
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22736 to BHP Billiton Minerals Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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