Roy Dixon/Plenty River Corp Ltd/Northern Territory
[2002] NNTTA 50
•19 April 2002
NATIONAL NATIVE TITLE TRIBUNAL
Roy Dixon/Plenty River Corp Ltd/Northern Territory, [2002] NNTTA 50 (19 April 2002)
APPLICATION NO: DO01/51
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of a Future Act Determination Application
Roy Dixon (Native Title Party)
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Plenty River Corp Ltd (Grantee Party)
- and -
Northern Territory of Australia (Government Party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: J. E. Stuckey-Clarke, Member
Place: Sydney
Date: 19 April 2002
Hearing dates: 5 December 2001, 20 December 2001, 18 January 2002, 28 February 2002, 5 March 2002
Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Ross McColl
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – grantee party’s intentions – presumption of regularity – likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation:
Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 109, 146, 151, 237
Cases:
C.N.Hardie/Western Australia/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO 00/92, Member Stuckey-Clarke 25 June 2001
William Risk and Kathleen Mary-Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso 15 April 2002
Smith v Western Australia [2001] FCA 19
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Cheinmora v Striker (1996) 142 ALR 21
Western Australia/Winnie McHenry WO 98/125, Deputy President Franklyn, 28 July 1999
Ward v Western Australia (1996) 69 FCR 208
REASONS FOR DETERMINATION
Background
[1] On 21 February 2001, the Northern Territory (“the government party”) gave notice pursuant to section 29 of the Native Title Act (“the Act”) that it proposed to grant Exploration Licence 9990(“the proposed tenement”) to Plenty River Corporation 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 49 blocks (a block is approximately 2.9 square kilometers), being approximately 160 square kilometers, within the Coanjula locality. The proposed tenement is situated wholly within Perpetual Pastoral Lease 1014,known as “Cresswell Downs”.
[3] On 21 May 2001 a native title determination application was filed with the Federal Court(D 6039/01). The name of the application is “Cresswell/Benmara” and the applicant is Mr Roy Dixon. The application was registered on 21 June 2001. The Cresswell/Benmara application covers the whole of the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (21 June 2001) after the section 29(4) notification day((21 February 2001). Mr Roy Dixon was the named objector.
[5] On 1 October 2001 Deputy President Sumner, acting in his capacity as delegate of the President of the Tribunal, appointed me to constitute the Tribunal for the purpose of this expedited procedure inquiry.
[6] On 11 July 2001 Deputy President Sumner made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. I issued further directions at various listing hearings, the last of which was convened on 5 March 2002. At that hearing all parties confirmed that none of them objected to my proceeding to determining the matter on the papers and I determined that, having considered the material lodged with the Tribunal, I was able to do so pursuant to section l5l of the Act.
The Evidence
Objector’s Evidence
[7] The native title party relies upon an affidavit of Mr Roy Dixon affirmed 22 November 2001 which is set out in full below:
“ 1. I live at Corroboree Hostel in Katherine. I am here for the dialysis.
2. I am the applicant in the Cresswell Benmara native title determination application (DC 01/.38).The area of the application includes the area of ELA 9990. I have seen a map of the area of the ELA. Now produced and shown to me marked “RD-9990” is a map of the ELA and the surrounding area.
3. There is a site on the ELA area, Go.anjula. It is Sun Dreaming. It is my granny’s country. If you put anything there, the Sun will burn really hot, and dry everything up. There’s a rock there, Kamparda:that’s the Gurdanji/Wampaya name for the Sun. If the miner digs that rock, it’ll burn all the trees, and make the sun go too hot. He can’t go get samples there. It’s on the middle of Go.anjula Creek.
4. There is no main road nearby, only the Calvert Road. The road is a long way to the south(kurla) and east (karri) of Go.anjula.
5. It’s hard to point to places; it’s all desert. It’s a bit hard to say where places are on a map.
6. I show people around my country. I don’t want to see anything damaged.
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] The native title party submitted the following evidentiary material to the Tribunal:
(a)Extracts from the Nicholson River(Waanyi/Garawa)Land Claim Report, dated 26/7/1984(“the Land Claim Report”), of the Commissioner appointed under the Aboriginal Land Rights(Northern Territory) Act 1976(Cth)(“the Land Rights Act”),being paragraphs 208-216 and 229 -234 at pages 35 and 38.
(b)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001; and
(c)The affidavit of Mark Frederick Foy affirmed 6 November 2001.
These two deponents also gave evidence at an oral hearing conducted on 3 and 4 December 2001.
(d)Information provided by the Aboriginal Areas Protection Authority in relation to Aboriginal Sacred Sites within the area of the proposed tenement(‘the AAPA sites information”).
The Government Party’s Evidence
[9] The government submitted its Standard Exhibit as well as the following evidentiary material to the Tribunal:
(a)a topographical map marked with the area of the proposed tenement , location of registered and recorded sites under the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”), tenure details and any known Aboriginal communities;
(b)A schedule of details of the sacred sites referred to;
(c)Mining Tenement documents, including the licence application and details of any current mining tenement and prior mining tenements granted over the same area;
(d)A Revised Prior Tenement Schedule, prior exploration licence map, previous exploration activity map and schedule and existing title holder map and schedule.
(e)Affidavit of Timothy Milne Gosling sworn 5 December 2001
(f)Affidavit of Hugh Joseph Bland sworn 29 November 2001.
The Grantee Party’s Evidence
[10] The grantee party submitted the affidavit of Kenneth Ross McColl sworn 10 December 2001.
The Parties’ Contentions
[11] All of the parties filed written contentions in the proceedings which I have considered in detail and to which I will refer with particularity where appropriate.
General Legal Principles
[12] Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are holders… of the native title in relation to the waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[13] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.
Reasoning
Section 237(a) – Interference with carrying on of community or social activities
[14] The Government party in its Statement of Contentions at [14]-[26] set out its submissions as to the proper construction of section 237(a) with which I agree. I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders on the land of the proposed tenement.
[15] The Government party in its Contentions at [27] asserts that the grant is not likely to interfere within the meaning of section 237(a) because there is no Aboriginal community on the land and there is no specific evidence in relation to community or social activities on the land.
[16] The native title party in its Contentions at [38]-[41] contends that;
(a)there are 4 aboriginal communities ‘in the vicinity of” the proposed tenement, namely Calvert Station, Kiana Station, Waanyi/Garawa Aboriginal Land Trust, Garawa Aboriginal Land Trust;
(b)The Calvert Road from Cresswell Downs to Calvert Hills is one of several roads “inside, and in the vicinity of, the licence area that are frequently used by the members of the claim group to access the communities”;
(c)Coanjula(sic) Creek and its tributaries is one of several water bodies in and around the proposed tenement used for fishing, drinking and sustaining sites of significance;
(d)The community and social activities include Foraging[Land Claim Report 2l8,234] and religious activities[Affidavit of Roy Dixon [3] ].
(e)The community of native title holders “actively look after country, by visiting and maintaining sites” on the proposed tenement.
[17] In my view, what the native title party asserts in these contentions is not supported by the evidence before me. There is no evidence of sufficient specificity and particularity before me of any community or social activities actually conducted at the present time on the proposed tenement which would be interfered with by the proposed grant. Mr Dixon deposes to his showing people “around my country’ but there is no evidence of where on the tenement this activity has been or is currently conducted, how frequently and with whom. The evidence is that there is no Aboriginal community on the proposed tenement and the topographical map provided by the government party indicates that the four aboriginal communities “in the vicinity of” the proposed tenement are all between 40-60 kilometres away from the tenement. Whilst the AAPA sites information discloses the existence of various recorded, as opposed to registered, sacred sites, there is no evidence, for instance, that ceremonies are conducted at any of those sites or that those sites are looked after by any of the objectors. There is no evidence that any of the objectors drive across the proposed tenement, only an assertion in contentions. In any case the government party’s topographical map only shows the Calvert Road and the Calvert Road does not pass through the tenement.
[18] The native title party relies upon the Land Claim Report extracts as evidence of foraging activities. The evidential value of the extracts referred to is extremely slight given the time which has elapsed since the Report was written, the fact that the land the subject of the Land Claim is not within or coextensive with the proposed tenement and the somewhat vague relationship between the objectors and the traditional owners. However, even accepting that the Land Claim findings are relevant to the present issue, the findings only confirm responsibilities and entitlement to forage found to exist in 1984. What section 237(a) requires, however, is evidence on the basis of which the Tribunal can conclude that at the present time the objectors actually conduct such activities on the proposed tenement: see William Risk and Kathleen Mary Mill-McGinness/Corporate Developments Pty Ltd/Northern Territory, DO 01/77, unreported, Member Sosso, 15 April,2002 at [35]-[38]. The findings of the Land Claim Report taken at their highest do not provide such a basis.
[19] The facts relating to the social and community activities likely to be interfered with by the grant of the tenement were peculiarly within the knowledge of the native title party and the existence of such evidence was in fact contended for in its submissions. However, the native title party has failed to produce evidence of those contentions and although there is no evidential onus to be applied, taking the commonsense approach to evidence and applying the test of direct interference explained by Justice French in Smith v Western Australia[2001]FCA 19 I find that it is not likely that the proposed grant will interfere directly with community and social activities of the native title parties.
Section 237(b) – Sites of particular significance.
[20] In Moses Silver at [86]-[107], Member Sosso analysed issues raised by the contentions of the government and native title parties in respect of the general legal principles applicable to and the proper construction of section 237(b) which were also raised in similar contentions in this matter. I agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.
[21] So far as section 237(b) is concerned, the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the areas or sites must be “capable of identification” and the nature of their significance to the holders of native title must be explained to the Tribunal: see Western Australia/Winnie McHenry WO 98/125, 28 July 1999. It will usually be the case that evidence relating to particular significance will be peculiarly within the knowledge of the native title party and that, absent documentary evidence, such as the Sacred Sites records, evidence of location and identification will also be peculiarly within the knowledge of the native title party so that failure to produce such evidence may lead to the drawing of an unfavourable inference on the issue , the Tribunal taking the common sense approach to evidence as it is obliged to do: see Carr J. in Ward v. Western Australia(1996) 69 FCR 208 at [217].
[22] The evidence as to such sites produced by the native title party and relied upon in its Contentions at [48]-[65] is found in the affidavit of Mr Dixon, especially at [3]:
“There is a site on the ELA area, Go.anjula. It is Sun Dreaming. It is my granny’s country.If you put anything there, the Sun will burn really hot, and dry everything up.There’s a rock there, Kamparda: that’s the Gurdanji/Wampaya name for the Sun.If the miner digs that rock, it’ll burn all the trees, and make the sun go too hot. He can’t go get samples there. It’s on the middle of Go.anjula Creek.”
[23] The native title party also relies upon the AAPA sites information and map which indicate only one recorded site within the proposed tenement (6262-8) on Co.anjula Creek and several others in the vicinity of the tenement associated with Co.anjula Creek and the Robinson River(6262-11,10,6,5,2 and 6263-5 & 6). All are recorded, not registered sites.
[24] The native title party also relies upon the affidavit of Jeffery Stead an expert anthropologist who has worked for the Northern Land Council for the last l0 years who deposes to his belief that it is unlikely that the AAPA Register for any particular area will be accurate and complete for all sites of areas of significance within it because site recording in any particular area is usually done in response to mining development requirements and is likely not to be complete because the survey will not be of the whole area only that required for development. Mr Stead also gave oral evidence at the hearing on 3 December 2001.
[25] Although the government party challenged Mr Stead’s capacity to give such expert evidence because he was not sufficiently independent of the Northern Land Council, I accept him as an expert witness of credibility and honesty. He gave his evidence in a straightforward and balanced manner and it has been of genuine assistance to the Tribunal. His evidence provided useful general background material in relation to the area in which the proposed tenement is found but did not specifically relate to the proposed tenement. Further, whilst I accept his affidavit evidence as to the practical manner in which sites recording occurs, he was not critical of the AAPA. Indeed, as the government party contends in its Final Contentions at [28]-[33], his evidence was to the effect that the AAPA sites recording system was generally an effective means of sites protection and that there were a variety of means whereby Condition 18 of the Second Schedule Conditions could be appropriately observed to protect sites of significance to native title holders: see pages 29-30 of transcript.
[26] In its Contentions at [45]-[47], the government party contends “that the grant is not likely to interfere with any areas or sites of particular significance….for the following reasons:
(a)….
(b)The identified recorded site within the proposed licence area needs to have “particular significance”, yet evidence which proves up its status is lacking; and
(c)In any event, any such sites have the statutory protections offered by the Northern Territory Aboriginal Sacred Sites Act 1989(“the Sacred Sites Act”). This Act applies to all of the land in the Northern Territory and provides protection for sacred sites as defined in s.3 of the Aboriginal Land Rights Act(Northern Territory)Act 1976(Commonwealth).(“the Land Rights Act”). “Sacred Site” is defined in the Land Rights Act as meaning “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.” An area or site gains the protection of the legislation whether registered or not. Although all sacred sites would not be sites of particular significance, such definition includes any area or site of particular significance in accordance with the objector’s traditions .The protections include:
(i) Section 33 of the Sacred Sites Act provides that a person …shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the Act or the Land Rights Act. Substantial penalties apply….
(ii)Section 34 of the Sacred Sites Act provides that a person shall not carry out work on or use a sacred site. Substantial penalties apply
(iii)Section 35 of the Sacred Sites Act provides that a person shall not desecrate a sacred site. Substantial penalties apply…
(iv) Section 37 of the Sacred Sites Act provides that a person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister’s Certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence. Substantial penalties apply
(d) Section 69 of the Land Rights Act also makes it a criminal offence to enter or remain on land in the Northern Territory that is a sacred site.
(e)Section 24 of the Mining Act relevantly provides that every exploration licence shall, unless expressly waived, varied or suspended in writing by the Minister, be granted subject to the condition that the licensee will…
“(k) not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory , ,otherwise than in accordance with that law.”……
(f)The Second Schedule of Conditions includes conditions which specifically reduce the likelihood of interference with sites of particular significance. Conditions 1(b),3,4,12,18 and 20 are referred to as particularly relevant to paragraph 237(b) issues. The compulsory inspection of the Register of Sacred Sites and the mandatory on-site meeting with any native title holders are seen as mechanisms to significantly reduce the likelihood of interference with such sites.
(g)Also, the letter of grant of the proposed licence will include endorsements specifically directing the grantee party’s attention to the provisions of the Sacred Sites Act so that, combined with other endorsements and conditions, this militates against reliance on defenses that may be mounted based on an absence of knowledge to offences under the Sacred Sites or Land Rights Acts. (This is stressed in the on-going communications with the grantees.)……….
47. The contextual risk evaluation by the Tribunal need include the following factors:
the lack of identification and the absence of stated impact;
the regulatory scheme which governs the exercise of the rights under the grant (including the presumption of regularity);
the statutory scheme which protects sacred sites in the Northern Territory; and
prior and current concurrent lawful activities on the same licence area.”
[27] The grantee party in Contentions signed by Mr McColl, the Titles Consultant for the grantee party, said:
“The Grantee Party has a policy of undertaking a Sacred Sites Clearance Survey by the ..AAPA before any exploration activity on ELA 9990 which activates the “substantial disturbance’ provisions of the Northern Territory Mining Act(Section 24(e).) The Grantee party understands that AAPA liaises closely with the local Land Council, and utilizes the services of local Aboriginal elders, to effect such surveys.
The Grantee Party has a policy to inspect the Register of Sacred Sites at AAPA before undertaking any non-intrusive exploration activity which does not activate the substantial disturbance provisions of the Northern Territory Mining Act to ensure that maximum protection is afforded to all registered and recorded sacred sites.
According to the map which accompanies the Statement of Contentions by the Government Party there is one(1) recorded Sacred Site located on the northern boundary of ELA 9990. The Grantee Party will ensure that no activities are carried out within the vicinity of this site.
The Grantee Party contends that the procedures it will put in place will ensure that the grant of ELA 9990 and subsequent exploration in the area of ELA 9990 are not likely to interfere with areas or sites of particular significance to native title holders”
Further, in his affidavit sworn 10 December 2001, Mr McColl deposes to his experience and services to be provided to the Grantee Party in order to ensure compliance with all relevant statutory requirements.
[28] Of the two sites contended to be sites of particular significance by the native title party, Go.anjula and Kamparda(see affidavit of Mr Dixon at [3] and the native title party’s Contentions at [50]), neither is clearly located by documentary evidence on the proposed tenement. However, I have inferred that the site Go.anjula is the same site as Site 6262-8 recorded on the AAPA Sites Register and that the Kamparda site is located where Mr Dixon says. The Tribunal accepts Mr Dixon’s evidence as to the existence location and particular significance of the two sites within the meaning of those words in section 237(b).
[29] However, that is not the end of the matter. The grantee party has established that its activities under the grant will not take place until a Sacred Sites Clearance Survey is conducted by the AAPA and its clear intention not to interfere with such sites. Further, the Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites ,the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Native Title Act. I find that it has not been established before me that these legislative provisions are practically ineffective, indeed the evidence is to the contrary. Further, I do not find it established before me that the AAPA Sites Register is inaccurate or deficient insofar as it relates to matters relevant to this inquiry or generally. The evidence of Mr Stead did not establish such inaccuracy in any relevant or specific sense.
[30] In conclusion therefore, in light of the Northern Territory statutory regime for the protection of sacred sites and applying the presumption of regularity and taking into account the stated intentions of the grantee party, I find that it is not likely that the two areas or sites of particular significance found to exist on the proposed tenement will be interfered with by the proposed activities of the grantee party.
Section 237(c) - Major Disturbance to land or waters
[31] As to the general legal principles applicable to the proper construction of this section, I concur in and adopt the general legal principles as set out by Member Sosso in Moses Silver at [135-140].
[32] The government party contended at [53]-[60] that the statutory regime of the Northern Territory in respect of the activities of the grantee on the proposed tenement was sufficient to ensure that it would not be likely that substantial disturbance would occur or if it did that it would not be appropriately remediated. The government party relied on the following legislative provisions:
(a)Section 24(e) Mining Act which prohibits a grantee from carrying out any programme involving substantial disturbance without the prior approval of the Secretary of the Department of Mines and Energy;
(b)Section 23(c) Mining Act which permits a grantee only to extract or remove material for sampling and testing purposes(not productive extraction) and which is reinforced by section 24(b) which makes this a condition of grant;
(c)Section 24(e) Mining Act requires that a grantee party wishing to undertake activities involving substantial disturbance to the surface of the licence area must seek approval pursuant to the section. The grant of the tenement only permits activities associated with exploration;
(d)Section 166(a) Mining Act provides that all exploration licences are granted conditional upon the grantee causing as little disturbance as possible to the environment and complying with written directions to minimize disturbances or to make good any damage and rehabilitate the land;
(e)Section 24(e) Mining Act approvals are subject to compliance with such remedial and activity-specific conditions as are considered appropriate for the protection of the environment;
(f)Conditions 2,7,8,9,12,13,14,15,16,17,18,19 and 20 of the Second Schedule of Conditions pursuant to section 24A Mining Act.
[33] The government party further contended at [61]-[64] that:
(a) The presumption of regularity in this context allows the Tribunal to presume that the discretion by the Secretary will be exercised responsibly within the boundaries of the discretion, including that appropriate remedial conditions will be attached;
(b) Although not defined in the Mining Act, “substantial disturbance” is interpreted, as a matter of administrative practice, to commence with any significant disturbance to the surface of the soil and includes activities such as drilling, access-track clearance and costean/bulk sampling;
(c) Section 24(e) permits effective management of potential disturbances by prohibiting such disturbance without prior written approval, requiring the grantee party to inform the Secretary in advance of the nature and extent of the disturbance activity and to disallow (if necessary) the disturbance or to effectively manage the disturbance and its rehabilitation so that no major disturbance is involved.
(d) Under section 166(2) Mining Act, the remedial conditions attached to the Secretary’s approval under s.24(e) become conditions of grant.
[34] The government party contended in conclusion at [65]:
“Taking into account:
(i)the absence of particulars of major disturbance;
(ii)the regulatory scheme which governs the exercise of the rights under the grant;
(iii)the additional statutory checkpoint which seeks to prevent and/or remedy disturbances; and
(iv)the statutory requirement that productive mining activities need proceed through a completely independent future act process than that of exploration licences
the Tribunal will conclude that the grant of the proposed licence does not create rights whose exercise is likely to involve major disturbance to any land or waters concerned..”
[35] The native title party contended at [71]-[79]:
“[71]. The Objector is concerned about major disturbance to land or waters within or in the vicinity of the licence area[affidavit of Roy Dixon[3]].
[72]. Further, in determining whether 237(c) applies, it is necessary to consider the extent and duration of the proposed work, the regulatory regime and the views of the native title claim group. [Smith]
[73]. An exploration licence is granted for six years, with options to renew it for up to a further four years [s.29A Mining Act]. After two years and at the end of each year after that, the area of the licence is to be reduced by at least half[s 26 Mining Act, unless the reduction is deferred.[s.28 Mining Act]. The reductions in area intensify the impact of exploration on the country remaining subject to the licence….
[75]. If the act is performed, the rights of the grantee party would include:
a.Drilling and sampling;
b.The construction and use of tracks, roads, miners’ camps, drill sites and sample sites;
c.Exploration vehicles and machinery using upon(sic) existing roads and tracks to access or use the licence area;
d.Setting up camps, with attendant problems of relatively large numbers of people, waste disposal, access roads and fire;
e.Taking and diverting water…..
f.Seismic surveys, which require a straight track cleared over several kilometers;
g.Costeaning, which involves digging a series of trenches across the country with a backhoe, front end loader or small bulldozer;
h.Rotary percussion, which requires a considerable amount of equipment on country;
i.Metallurgical testing, which amounts to mining without the right to remove the product… or sell it…..
[78] The potential major disturbance to country includes:
a.Holes left on country from drilling or trenching, which could cause injury to animals or people unless they are plugged or filled;
b.Tracks built across country which could:
i. damage flora;
ii. provide access where none was available before, reducing the isolation of specific habitats
ii . allow invasion by weeds and other pests;
iv. promote erosion if not properly constructed.c.Damage to beds and banks of watercourses or water sources caused by taking or diverting water;
d.Reducing the amount of water available to sustain flora and flora(sic);
e.Increased levels of by products(sic) of drilling or trenching include(sic) noise, dust, mud, and loose rock, potentially leading to problems of:
i. Erosion
ii. Excessive dust damaging or driving away flora and/or fauna;iii.Mud from drilling could escape into watercourses, causing turbidity,which affects habitats and kills the fish.
f.Use of land otherwise used by the applicants in accordance with their native title rights and interests.
[79] The cumulative effect of disturbance to land and waters on the licence area with that caused by exploration and mining on land and waters in the vicinity should be taken into account in determining whether the proposed exploration activities are likely to satisfy this criterion.”
[36] The native title party in its Contentions in Reply to the contentions of the government and grantee parties contended in summary:
(a)Section 24(e)Mining Act only deals with disturbance to surface area and not with other kinds of disturbance;
(b)The full extent of rights accorded to a grantee are found in sections 23(b)-(d);
(c)Section 23(c) may permit substantial extraction or removal amounting to major disturbance;
(d)An exploration licence permits high impact activities e.g. road construction, drilling, sampling, costeaning and camp construction;
(e)The statutory regulatory regime contemplates substantial disturbance with prior approval of the Secretary but the government party did not address how that discretion is exercised;
(f)Rehabilitation does not mean that major disturbance has not occurred or that rehabilitation may itself involve major disturbance.
(g)The presumption of regularity does not extend to enable the Tribunal to rely on some fetter on the Secretary’s discretion
(h)The Second Schedule Conditions were defective. First, they are not enforceable by the Objector. Secondly, several conditions are subject to the approval of the Minister.
Condition 19’s protection is subject to Ministerial discretion and only deals with disturbances to the surface of the soil;
(j)Condition 20’s protection depends upon Ministerial enforcement and native title holders have no right to stop exploration or otherwise prevent or rectify damage.
[37] The grantee party contended:
“…the Grantee Party does not have any other titles or applications in the Northern Territory, however, it will abide by the conditions which attach to Exploration Licences generally. In addition to this, the Grantee Party will conduct its exploration activities in accord with the “Code of Conduct for Mineral Explorers in the Northern Territory”…the Grantee party utilises the services of a Titles Consultant based in Darwin, to maintain and carry out all matters to do with this application. This particular consultant has been involved with exploration and mining matters in the Northern Territory for 21 years and he has a proven record of compliance with the “substantial disturbance’ provisions of the NT Mining Act.”
The grantee party also relies upon an affidavit of Mr McColl, its titles consultant, deposing to his extensive experience of compliance under the statutory regime in the Northern Territory. The Tribunal was not however provided with any details as to the proposed exploration activities of the grantee party.
[38] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept in full.
[39] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining and Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)
[40] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.
[41] There is also before me in this matter evidence relied on by the government party in relation to previous mining activity on the proposed tenement which forms Attachment E to the government party’s Final Contentions. That evidence shows that there have been six exploration licences granted over the proposed tenement previously: EL 1339, 1427, 2137, 4360, 7219 and 7222 over the continuous periods 1976-1980, l983-l989 and 1991-1994.The map of previous exploration activity indicates extensive previous exploration activities over the proposed tenement, however, the only ELAs for which details are available in relation to activities are EL 4360 (diamond drilling, stream sediment sampling and ground magnetic survey) and EL 7219(stream sediment sampling).
[42] Having concluded like Member Sosso, that the generic material before me “highlights that the Northern Territory has in a place a well advanced, integrated and pro-active legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which to a very large degree has succeeded in dovetailing native title considerations in to the fabric of the decision-making process” and having evidence before me of the grantee party’s intention to comply with that regime, and having considered the evidence of previous mining activity, I am unable to find that the grant of the proposed tenement would be likely to involve major disturbance to such land or waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 9990 to Plenty River Corporation Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
J. E. Stuckey-Clarke
Member
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