Roy Dixon for the Garawa People/Northern Territory/Astro Mining NL
[2002] NNTTA 253
•20 December 2002
NATIONAL NATIVE TITLE TRIBUNAL
Roy Dixon for the Garawa People/Northern Territory/Astro Mining NL, [2002] NNTTA 253 (20 December 2002)
Application No: DO01/109 (EL22251)
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
ROY DIXON FOR THE GARAWA PEOPLE (native title party)
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The Northern Territory of Australia (Government party)
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Astro Mining NL (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon EM Franklyn, Deputy President
Place: Darwin
Date: 20 December 2002
Catchwords: Native Title – Future Act – proposed grant of exploration licence – two expedited procedure objection applications lodged in identical terms, relying on identical contentions, evidence and other material – one such objection lodged by native title claim group, the claim of which does not include the proposed ELA land – that objection dismissed under s148(a) of Native Title Act – Inquiry proceeded in respect of remaining objection – observation on the need/for clear identification of exhibits to affidavits – observation on value of material presented found unhelpful in previous Tribunal objection enquiries into the same issues – evidence inadequate to support objection – proposed grant found to attract the expedited procedure.
Legislation:Native Title Act 1993 (Cth)
Mining Act 1980
Aboriginal Land Rights (Northern Territory) Act 1976
Land Rights Act
Northern Territory Aboriginal Sacred Sites Act
Mining Management Act 2001
Mining Amendment Act (44) 2001
Cases:Hazelbane/Northern Territory of Australia/Johnston DO01/40 and DO01/41, 27 March 2002 at [9(c)] to [16]
Riley and Foster/Northern Territory of Australia/Johnston and Sakurai (DO01/70 and Do01/71, 17 April 2002 at [10]
Rory and Dixon/Northern Territory of Australia/Astro Mining NL DO01/110 and DO01/111, 10 May 2002 at [12] and [13]
Archie Allen and others/Northern Territory of Australia/Scriven DO01/75, 22 July 2002 at [12]
State of Western Australia v Ward and Ors (matter P59/2002) HCA 28 delivered 8 August 2002, at [417] to [425] and [468 sub-paragraph 24]
Derrick Smith/Western Australia/South Coast Metals Pty Ltd (2001 FCA 19) French J at [26] and [27]
Dann v Western Australia (1997) 74 FCR 391:144 ALR 1
Representative of the
Government party: Mr Daniel Lavery of Solicitor for the Northern Territory
Representative of the
native title party: Angus Frith counsel representing Mark Rumler for the Northern Land Council
Representative for the
Grantee party: Lisa Bowyer of AWI Administration Services
REASONS FOR FUTURE ACT DETERMINATION
Background
On 27 June 2001 the Northern Territory (the Territory) issued a notice under Section 29 of the Native Title Act 1993 (Cth) (“the Act”) that it proposed to grant to Astro Mining NL (“the grantee”) exploration licence 22251 comprising 1644 sq km, the notice containing the statement that the Territory considered the grant to attract the Expedited Procedure. The proposed licence and the land the subject thereof is hereafter referred to as “the ELA”.
On 29 October 2001, expedited procedure objection application (DO01/109) was lodged with the Tribunal by Roy Dixon on behalf of the Garawa People, the registered native title claimants in respect of ELA (DC01/57), objecting to the inclusion in the notice of the said statement in respect of the ELA on the grounds that such grant does not meet any of the criteria prescribed by s237(a), (b) and (c) of the Act.
I am satisfied that the issues raised by the objections can be adequately determined on the material before the Tribunal and in the absence of the parties.
The ELA is situated on land in part the subject in part of Pastoral Lease 773 (“Seven Emu”), in part of Perpetual Pastoral Lease 774 (“Pungalina”), in part Perpetual Pastoral Lease 1169 (“Calvert Hills”) and in part Perpetual Pastoral Lease 1113 (“Woologorang”).
Objector’s Material
The Objection lodged alleges the existence of several communities of the native title claim group “in or in the vicinity”, of the ELA, going on to name as such “Calvert Hills” about 25 kms west, “Wollogorang” about 25 kms south-east, the area and waters held by the Yangulinyina Aboriginal Corporation about 25 kms to the west and the Garawa Aboriginal Land Trust about 35 kms to the west. The objection alleges that the communities use the roads in and in the vicinity of the ELA and the waters and other areas within it and its vicinity for fishing, as sources of drinking water and for foraging. It asserts there to be 15 sites “recorded or registered” by the Aboriginal Areas Protection Authority (AAPA) within the ELA, other sites in the vicinity and lists 9 “areas or sites of particular significance” which, it is contended, are likely to be interfered with by the grant.
The material relied upon by the objector in support of its objection is as follows:
[6.1](1) Statement of Contentions and further contentions lodged in reply to the Government Party’s contentions;
(2)The Garawa/Mugularrangu (Robinson River) Land Claim, dated 14 March 1990;
(3)Affidavit of Jimmy Pyro attested 21 March 2002;
(4)Document in the nature of contentions entitled “Rights conferred under an exploration licence”, dated 13 December 2001;
(5)Document in the nature of contentions entitled “Analysis of legislation dealing with significant areas/sites”, dated 25 March 2002;
(6)Affidavit of Mark Frederick Foy, affirmed 25 March 2002 and annexure MFF, a document entitled “Exploration activities”;
(7)Transcript of the evidence of Mark Fredrick Foy, given 4 December 2001;
(8)Affidavit of Jeffrey John Wilson Stead, affirmed 8 October 2001;
(9)Transcript of the evidence of Jeffrey John Wilson Stead, given 3 December 2001; and
(10)AAPA site information with map.
[6.2]Subsequently the objector lodged additional material described as follows:
(1)AAPA site information from ELA 22457;
(2)Transcript evidence from Kybrook Farm on 15 November 2001 (page 28); and
(3)Transcript evidence from site visit on 15 November 2001 (pages 6 to 10)
[7.1] The documents referred to in subparagraphs (4), (5), (7), (8) and (9) in paragraph [N1][6][N2] hereof and the document “Exploration activities” annexed to the affidavit of Mark Frederick Foy affirmed 25 March 2002, referred to in paragraph (6) of [6.1] have been produced in evidence in expedited procedure objection applications by the Northern Land Council acting as representative of objectors, on many occasions in the past. The transcript of evidence of Mr Foy and Mr Stead refers to evidence given by them respectively in objection applications numbered DO01/11, DO01/12, DO01/17, DO01/18, and DO01/43, heard jointly on 3 and 4 December 2001. The document “Exploration activities” was also produced at that hearing as an exhibit to an affidavit of Mr Foy affirmed 24 October 2001. The affidavit affirmed 25 March 2002 to which that document is annexed in these proceedings does not differ in any relevant or material sense from that of 24 October 2001. The content of the document “Exploration activities” annexed to that affidavit is either identical with or in no relevant sense different from that annexed to the affidavit of 24 October 2001. I and other Members of the Tribunal in expedited procedure objection application enquiries have found each such document to be of general interest but of extremely limited (if any) evidentiary value. I have set out my reasons for so finding in “Hazelbane/Northern Territory of Australia/Johnston DO01/40 and DO01/41, 27 March 2002 at [9(c)] to [16]; Riley and Foster/Northern Territory of Australia/Johnston and Sakurai DO01/70 and DO01/71, 17 April 2002 at [10]; Rory and Dixon/Northern Territory of Australia/Astro Mining NL DO01/110 and DO01/111, 10 May 2002 at [12] and [13]; Archie Allen and others/Northern Territory of Australia/Scriven DO01/75, 22 July 2002 at [12]”. I find that to be the case also in the present inquiry. In short the said evidence and material do not address the issues raised by s237(a), (b), (c) of the Act with sufficient particularity to lead to a conclusion in respect of any thereof one way or another. Further, the evidence and material in each case is of a general nature and does not take into account the overall effect of the Mining Management Act 2001 and the Mining Act 1980 as amended by the Mining Amendment Act (44) 2001 on the legislative regime which controls the exercise of rights under an exploration licence. The objectors’ contentions however address those amendments.
[7.2] The materials later produced by the objector and set out in paragraph [6.2] hereof were also relied on as evidence in Rory and Dixon/Northern Territory of Australia/Astro Mining NL DO01/110 and DO01/111 referred to above. In that matter I found that material unhelpful as evidence, my reasons being set out in paragraph [14] of that determination. I find it no more helpful in the present matter.
Set out hereunder are the contents of the affidavit of Mr Pyro.
[8.1] Affidavit of Jimmy Pyro
‘I, Jimmy Pyro of Wada Wadala, Borroloola in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:
1.I live at Wada Wadala, in Borroloola.
2.I have seen a map of the area of the ELA. Now produced and shown to me marked “JP 22251” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit. The ELA is on Wollogorang, Calvert Hills, Pungalina, and Seven Emu stations. The Calvert River flows through the northern end of it. Along the eastern part of the ELA is a hilly country with creeks flowing through it, including Running Creek, and Sandy Creek.
3.I know a lot about Aboriginal sacred sites at the bottom end of Pungalina and Wollogorang pastoral leases, near the coast. Don Rory and I have agreed that I should speak as a witness for his country on the bottom end (to the north) of Pungalina and Wollogorang stations including the area of ELA 22251. Roy Dixon, Don Rory and other senior people have decided I am the most knowledgable person with authority to speak for sacred sites in this area. I’m Mambaliya semi-moiety. I am Minirringgi for Mambaliya country. I can speak for that country on the ELA. I can also speak for some Rrumbarriya sites that are connected to ceremony for which Mambalyia and Rrumbarriya people are Minirringgi together, like the Walulu (Rainbow/Whirlwind) tradition associated with Kunapipi ceremonies. I talk Garawa and Yanyula language.
4.I been work all over: Wollogorang, Calvert, Robinson River, Anthony, Brunette and come back Spring Creek. I been work Manangoora when I was young, and Pungalina, that’s where I grew up. I been working there when old George Anderson was manager.
5.Mining company can have a look at the ELA area. But there are sacred sites on the ELA area. Some places are all right, but some places have got Dreaming, because there’s Young Boys’ song, Kujika, going through there too, belonging to those Dreaming sites. Kujika, we got to follow the mining company down there, and tell them: “well, might be Dreaming there, we’ll have to stop their work”. The company’ll have to be careful, and ask Aboriginal people.
6.Snake Whirlwind, Walulu, comes through, travelling west from Kuningyirra. He travelled west into hill country on ELA 22251. He been hit Running Creek, at Ngadang ngadana. Ngadang ngadana, whitefella call it Bulrush, it’s spring country.
7.When he leave bulrush, that Ngadang ngadana, he hits another spring, Ngamu ngamumur, Sandy Creek, inside the ELA area, on Pungalina Station. Whitefella call him Pandanus Yard. From there, Walulu is travelling west towards Calvert River, heading west.
8.Another place he hits is Crocodile Yard, Kululurrina, on Sandy Creek near the eastern boundary of Pungalina Station. And he keeps going, that Walulu Snake; he been hit the Calvert River at that place named Barangkuna, on Pungalina pastoral lease, west of ELA 22251.
9.All these are Walulu places; I’m Mingirringgi for them. Don Rory is Junggayi.
10.The mining company can go there, but they’ve got to come and ask me first. For Walulu, I’m the head boss, Mingirringgi. Don Rory and Gilbert Rory are head Junggayi. We’ve got to see the company first, have a good talk, and see if we can let them go there.
11.Back up on Running Creek, up in Running Creek Gorge, there’s a site called Wurruka. All the boss for that one are finished: old lady Wurrukamala, and Karakamaji, my two aunties. All the Mambaliya people are finished for that country. I just tell you about it because I been mustering through there. Junggayi are finished too. I can talk for that country, Running Creek.
12.Kirring.ina is right at the main road crossing on Running Creek near Running Creek Yard, outside the ELA to the north east. And further down Running Creek is Jajadana.
All the facts and circumstances deposed to in this affidavit are within my own knowledge except where they are stated to be from information only and my means of knowledge and sources of information appear on the face of this affidavit.’
[8.2] In paragraph 2 of his affidavit Mr Pyro deposes to a map “now produced and shown to me marked JP22251” and that marked on it are “some” of the places referred to in his affidavit. The map produced to the Tribunal with his affidavit does not bear the marking “JP22251” or any identification marking. It is not signed by Mr Pyro or the Justice of the Peace who took his affidavit. There is nothing to identify it as the map referred to in his affidavit. The only “places” marked on it are “GULULURINA (6464-6)” with an arrow indicating it to be at a point on Sandy Creek within the ELA and “BARAUNGKUNA (6364‑27)” with an arrow indicating it to be at a point on the Calvert River to the west of the ELA.
The place Gululurina is referred to in the information provided by the Aboriginal Areas Protection Authority but is not referred to by Mr Pyro in his affidavit. The AAPA information merely describes it as a place located in Sandy Creek south from Wollogorang Seven Emu Road. The map produced with the affidavit shows some of the boundaries of the four pastoral leases on which the ELA is situated as they relate to the ELA and the course of the Calvert River, Sandy Creek and Running Creek being partly on the ELA.
In paragraph 3 Mr Pyro deposes that he knows a lot about Aboriginal sacred sites at the bottom end of Pungalina and Wollongorang pastoral leases “near the coast”. The map does not reveal the location of the coast in relation to the ELA but other maps in evidence as standard exhibits produced by the Territory reveal it to be the Queensland coast and to be approximately 49 kms to the east of the nearest point of Pungalina Pastoral Lease, and to be quite close to the north-east boundary corner of Wollongorang Pastoral Lease the distance therefrom to the east increasing quickly and considerably as it runs south.
Mr Pyro states that Don Rory and he have agreed that he should speak as a witness for Mr Rory’s country on the bottom end (to the north) of Pungalina and Wollongorang Station including the area of the ELA. I am unable to determine from the affidavit or map what is the area of the ELA to which this agreement refers. What the agreement does suggest, however, is that Mr Rory’s country is not that of Mr Pyro. Whether Mr Rory has any authority to speak for the objector’s country and as such for the Garawa People, is not addressed. Mr Pyro does not claim to be a member of the Native Title Claim Group or to have the authority of the Garawa People to speak for that country. Further there is no affidavit from Mr Dixon, the objector for the Garawa People as to Mr Pyro’s authority to speak although Mr Pyro deposes that “Roy Dixon, Don Rory and other senior people have decided that he (Mr Pyro) is the most knowledgeable person with authority to speak for sacred sites in this area”. It is not clear that those persons have the authority of the Garawa People to confer on Mr Pyro the authority to speak for them as to sacred sites. It is not clear from his affidavit that the sacred sites of which he speaks are sacred sites of the Garawa People or of the Mambaliya People or Rrumbarriya People of whom he speaks in paragraph 3. The authority claimed by Mr Pyro to speak is limited to the bottom end (to the north of Pungalina and Wollogorang Station). This is asserted to include “the area of the ELA” but that is not self‑evident. The description “the bottom end of Pungalina and the Wollogorang Pastoral Leases” would appear to exclude the greater part of the ELA, having regard to the maps. Mr Pyro does not identify what is Mambaliya country on the ELA or elsewhere for which he says he can speak as Minirringgi. Nor does he testify that the ceremonies of which he speaks in paragraph 3 are conducted on or are relevant to the ELA.
Although in paragraph 5 Mr Pyro asserts there to be sacred sites on the ELA, he does not identify the location of any such, nor whether they are on the area of the ELA for which he claims the agreed authority to speak. He refers to the places related to “Kujika”, the young boys’ dreaming songs but only in the context that there “might be” dreaming there. In paragraphs 6, 7 and 8 he refers to places: “hit” by the “Snake Whirlwind”, Walulu, but identifies only “Ngamu Ngamumur” (also known as Pandanus Spring) as being on the ELA. He does not identify the location of any of the other places or sites referred to him other than Barangkuna which, it is common ground, is not on the ELA. Of the sites referred to by him the AAP information reveals the place “Ngadang ngadana” to be also called Bullrush Spring with site number 6464/5 or to be also located on the ELA. It is of significance that the evidence of Mr Pyro does not reveal any knowledge of the sites on the ELA identified in the AAPA map other “Bullrush Spring” and “Pandanus Spring”. It raises the question whether Mr Pyro’s evidence refers to sites or places of significance to the Garawa People or to Mambaliya and/or the Rrumbarriya People. The inference is that the other sites referred to by the AAPA are not seen to be of relevant particular significance. Of course, it is not to be assumed that the mere naming of a place or site, or the fact of it being a recorded or registered site, without evidence to establish it to be one of relevant particular significance within the meaning of s237(c) of the Act, establishes it to be such a place or site.
Aboriginal Areas Protection Authority
[8.3] The information provided by the Aboriginal Areas Protection Authority made available by the objector to the Tribunal as to registered and recorded sites is contained in a map of sites as at 30 February 2002. It contains a list of 26 sites, 25 of which are recorded sites with status 10 (accuracy of information not necessarily assessed) and one a registered site with status 40 numbered 6465-1 which is outside the area of the ELA. Twelve of the recorded sites are within the boundaries of the ELA and two are on its western boundary.
[8.4] In support of its contentions and objection the objector also relies on the March 1990 Garawa/Mugularrangu (Robinson River) Land Claim Report of the Aboriginal Land Commission under the Aboriginal Land Rights (Northern Territory) Act 1976 (The Land Rights Act) and suggests that the same be adopted by the Tribunal. I am not prepared to adopt that report or its findings. It is the result of an inquiry conducted some 12 years ago under another statute in respect of claims of traditional ownership of other land, which, it is conceded in the contentions and is apparent from that report, is quite different to the concept of native title under the Act. The land in question is some 35 kms from the ELA. The commission report is concerned with the land claims of different claim groups, each claiming to be the traditional aboriginal land owners of different parts (estates) of the overall land claim area. As the report itself makes clear at paragraphs [4.7] to [4.13] inclusive, it is the result of an inquiry to firstly ascertain whether the claimant Aborigines or any other Aborigines are the traditional owners within the meaning of the Land Rights Act of the claimed land and, if there are traditional owners, to make recommendations for the grant of the claimed land or part of it to a trust for “relevant Aborigines” as defined in s11 (4) of the Land Rights Act. The making of such recommendations involved the exercise by the Commissioner of discretion as to the strength or otherwise of the traditional attachment of the various claimants to the land claimed. Under the Land Rights Act the expression “traditional owners” means “a local descent group of Aboriginals who, (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and, (b) are entitled by Aboriginal tradition to forage as of right over that land;…”. The report is, in my opinion, of no assistance in determining the issues raised by s237(a), (b) and (c). The issues involved in an expedited procedure objection application are so different from those involved in Land Claim Reports that the latter are of no value in, and indeed if relied upon, may distort the validity of, the determination of an expedited procedure application. It is of interest to note that in paragraph [4.6] of the Report the Commissioner said “all traditional land claims under the Act are of necessity made within the legislative framework of the Act and there can be no certainty that the premises upon which the legislation was drafted are necessarily valid in respect of any particular claimant group”.
To the extent that the objector’s statement of contentions contains factual statements relating to the communal or social activities of the native title holders which are not supported by evidence, and statements purporting to explain or provide facts expanding the affidavit evidence of the witnesses, it is inadmissible as evidence and, to that extent I disregard it. I accept the material provided by the AAPA as to the existence on and in the close vicinity of the ELA of the recorded sites and the one registered site there mentioned.
The Territory’s Material
The Territory has produced material (unchallenged) including maps showing prior mining tenements granted and in force from time to time over different portions of the ELA. That information reveals that thirteen Authorities To Prospect were granted over the period April 1962 to July 1971 and forty-one exploration licences were granted over the ELA over the period March 1972 to October 1997, the last of which was surrendered in October 1977. The maps produced showing the areas covered by the exploration licences reveal that virtually the whole of the ELA has been the subject of such a licence. The maps also show previous exploration activities in the vicinity of the ELA, the location and boundaries of existing applications and granted exploration licences, mining tenement authorisations and mining tenements in the vicinity of the ELA. It is obvious from the said material and maps that the land the subject of the ELA and surrounding it has for some years been the subject of intense exploration and mining interest. It is significant that there is no evidence of any interference, direct or indirect, with the carrying on of any community or social activity of the holders of native title, or with areas or sites of relevant particular significance, or of disturbance to the land or waters the subject of their native title claim arising out of the past exploration activities on the ELA or from exploration or mining activities in its vicinity. A comparison between the AAPA map of recorded and registered sites provided by the objector and the maps provided by the Territory showing the location of previous exploration activity on the ELA reveals that the majority of such previous exploration activity had been carried on in close vicinity to the location of the majority of sites shown on the AAPA map and, so far as the evidence discloses, without any concern about or suggestion of interference to any such site. Whether recorded or registered, they are each protected by the provisions of the Sacred Sites Act (Northern Territory) as well as the other legislative provisions which control exploration activities and there is no evidence to suggest that such protection is not effective.
Grantee’s Material
The grantee elected to provide no statement of contentions or evidence, stating that it relies on the contentions and material provided by the Territory.
Conclusions
Mr Pyro has provided no evidence of any social or community activities of the holders of native title on the ELA and there is no evidence of any such activities. Such activities as may be carried on on the ELA are already circumscribed to the extent that they are inconsistent with the exercise of the rights conferred on the respective pastoral lease holders of the land the subject of the ELA. So far as the evidence discloses there has been no interference directly or otherwise with any such activity by reason of previous exploration activities on or in the vicinity of the ELA or current activity within its vicinity. The objector contends that there are several roads inside and in the vicinity of the ELA used by members of the claim group to access communities and areas for the purpose of community and social activities. Such roads are open to other public users as well as by the pastoral lease holders, their employees, contractors, service providers and visitors. That list is quite plainly not exhaustive. It is not said how the use of any such road by the grantee in the course of its activities will, in any substantial way, directly interfere with the conduct of the claim group activities and it is difficult to see how any such use is likely to be the proximate cause of any apprehended interference (Derrick Smith/Western Australia/South Coast Metals Pty Ltd (2001 FCA 19) French J at [26] and [27]). I am satisfied that the grant of the ELA is not likely to interfere directly with the carrying on of any of the community or social activities of the native title holders.
It is of significance that the evidence produced by the objector makes no complaint of interference with any relevant area or site of particular significance within the meaning of s237(b) or of major disturbance within the meaning of s237(c) of the Act arising out of previous exploration activities on the ELA. In my opinion the evidence of Mr Pyro falls far short of providing evidence of the existence of areas or sites of relevant particular significance on or in the vicinity of the ELA. He alleges the existence of sacred sites on the ELA but his evidence suffers from the deficiencies I have earlier mentioned. In particular it does not identify any site of particular significance within the meaning of s237(b). He gives no indication of how any place mentioned by him may be interfered with by the grant of the ELA or the activities carried out thereunder. With the assistance of the AAPA information I have identified two (status 10) sites recorded under the provisions of the Northern Territory Aboriginal Sacred Sites Act (the Sacred Sites Act) on the ELA named in his evidence as associated with a Dreaming. They may or may not be of relevant particular significance. The evidence is inadequate to determine that question. The AAPA information provides evidence of other recorded sites on the ELA. That however does not lead to an inference that such recorded sites are of relevant particular significance within the meaning of s237(b). I find Mr Pyro’s evidence as to the location of what he refers to as “sacred sites” on or in the vicinity of the ELA to be so unsatisfactory that I do not accept as sites of relevant particular significance likely to be interfered with by the grant of the ELA, sites named by him which I have been unable to identify on the ELA, nor the other recorded sites revealed by the AAPA information. There is no evidence to suggest that the places I accept as being possibly of relevant particular significance are likely to be so interfered with. The evidence of past exploration activities on the ELA and the absence of any evidence to suggest interference with sites leads to the contrary conclusion. The situation is that all recorded or registered sites and sites not registered or recorded which meet the statutory definition of “sacred site” have the protection provided by the Sacred Sites Act which makes it an offence to interfere with them (ss33 to 37). In the absence of evidence to the contrary it is not to be assumed that the grantee, in carrying out exploration activities will or is likely to act in breach of the law or conditions attached to the licence. In addition to the protective provisions of the Sacred Sites Act, the Territory relies upon the legislative regime in place in the Northern Territory and in particular the provisions of the Mining Management Act 2001 and its regulations and the Mining Act 1980 as amended by the Mining Amendment Act 2001 as providing protection to sacred sites and sites of relevant particular significance and to the avoidance of major disturbance. Those provisions provide the legislative regime which controls the conduct of exploration mining activities in the Northern Territory. In DO01/40 and DO01/41 at paragraphs [13] and [14], I have summarised the effect of those acts and have elaborated thereon in DO01/70 and DO01/71 at paragraphs [18] and [19]. In DO01/75 [22 July 2002] at [16] I said “I draw attention in particular to the provisions of ss35, 37, 39 of the Mining Management Act; to the conditions set out in s24(b), (e), (j), (k) of the Mining Act directed to the minimisation of disturbance of exploration licence land, of interference with the lawful activities and rights of others and with the protection of, and prevention of interference with, Aboriginal sites and objects. I refer also to the conditions approved by the Minister under s24A of the Mining Act, a copy of which forms part of the material provided by the government party in these proceedings, and in particular to conditions 1, 2, 3, 4, 12, 17, 18 and 20 thereof, which are directed to ensuring consultation with registered native title claimants prior to commencing exploration activities, to the minimisation of impact on native title rights and interests in the licence area and interference of the nature referred to in s237(a), (b), (c) of the Act. I refer also to s166A of the Mining Act which provides that conditions imposed on a grant relating to land the subject of native title rights and interests may be enforced by the parties as a term of a contract between them; to s166(1A) which requires relevant authorisation before carrying out exploration operations or work involving substantial disturbance and to s171 which makes provision for cancellation of a licence for breach of a condition. I draw attention to the provisions of ss33, 34, 35 and 37 of the Sacred Sites Act which provide penalties for unauthorised entry onto, working on, use or desecration of a sacred site, and for damage or distress to a custodian of a sacred site arising out of failure to comply with the certificate authorising work on or use of land. I also refer to s69 of the Land Rights Act which makes it an offence to enter or remain on an Aboriginal site without lawful authority”. That passage is equally applicable in the present case. The material provided by the Territory includes a statement of the conditions to apply to the licence under s24A of the Mining Act, draws attention to the statutory conditions set out in 24 and 166 of that act and provides material said to be routinely made available to grantees identifying their obligation, and including brochures setting out a Code of Conduct for mineral exploration and environmental guidelines. The s24A conditions have direct relevance to the protection of unrecorded sites as well as recorded sites.
I am satisfied on the evidence that there is no real chance or risk that the grant of the ELA is likely to interfere with the areas or sites of particular significance in accordance with their traditions to the holders of native title in relation to the lands or waters concerned.
The meaning to be given to the expression “major disturbance” as used in that sub‑section and the matters to be taken into account in assessing the degree of disturbance is set out in the judgments of the Full Court or the Federal Court in Dann v Western Australia (1997) 74 FCR 391:144 ALR1. Applying those judgments and having regard to the legislative regime to which I have referred above and to the fact that there is no evidence which suggests that major disturbance to the ELA land has been occasioned by any previous exploration activity thereon, I find there to be no real risk of major disturbance within the meaning of s237(c) of the Act arising out of the grant of the ELA.
Determination
The determination of the Tribunal is that the grant of exploration licence 22251 to Astro Mining NL is an act which attracts the expedited procedure.
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The Hon EM Franklyn QC
Deputy President
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