Sandy Limmen & Ors on behalf of Alawa, Marra and Ngandji People/Astro Mining NL/Northern Territory

[2002] NNTTA 202

NATIONAL NATIVE TITLE TRIBUNAL

Mr Sandy Limmen and Others on behalf of the Alawa, Marra and Ngandji People (DO01/117)/Astro Mining NL/Northern Territory, [2002] NNTTA 202
(10 September 2002) 

APPLICATION NO:  DO01/117

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

-     and  -

IN THE MATTER of an inquiry into an expedited procedure objection applications 

MR SANDY LIMMEN AND OTHERS ON BEHALF OF THE ALAWA, MARRA AND NGANDJI  PEOPLE (DO01/117), (Native Title Party)

-     and  -

ASTRO MINING NL (Grantee Party)

-     and  -

NORTHERN TERRITORY OF AUSTRALIA     (Government Party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:   J. E. Stuckey-Clarke, Member
Place:        Sydney
Date:         10 September 2002

Hearing dates:            9 April 2002, 16 May 2002, 5 June 2002.

Government Party:    Mr Nicholas Papandonakis, 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:            Ms Lisa Bowyer, Tenement Manager

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, 136 ALR 557

Roy Dixon/Plenty River Corp Ltd/Northern Territory, DO01/51, Member Stuckey-Clarke, 19 April, 2002

Andy Andrews, Tex Camfoo and Peter Woods & ors/Northern Territory/ Exploration and Resource Development Pty Ltd, DO 01/123-5, Member Sosso, 19 August 2002.

Don Rory & Ors/ Northern Territory/Astro Mining NL, DO 01/110 & 111, Deputy President Franklyn, 10 May 2002.

Arthur Que Noy & Ors/ Northern Territory/ Biddlecombe Pty Ltd, DO 01/112, Member Sosso, 4 July 2002.

Angus Riley & Ors/ Northern Territory/ Johnston & Sakurai,  DO 01/70 & 71, Deputy President Franklyn, 17 April 2002.

Dingie Neade/ Northern Territory/ McCleary Investments Pty Ltd, DO 01/55, Member Stuckey-Clarke, 19 April 2002.

REASONS FOR DETERMINATION

Background

[1] On 11 July 2001 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 Nos 22297 (“the proposed tenement”) to Astro Mining NL (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.

[2] The proposed tenement covers an area of 435 blocks (1424 sq km) (a block is approximately 2.9 square kilometres) within the Bauhinia Downs locality. The area of the proposed tenement is comprised of the following pastoral leaseholds: Pastoral Lease  756 (commonly known as “Nathan River”) and Perpetual Pastoral Lease  1046 (commonly known as “Broadmere”).

[3] On 12 September 2001 a native title determination application was filed with the Federal Court (DC01/52) (D6053/01). The name of the application is “Nathan River” and the applicants are Mr Sandy Limmen, Mr Sandy August and Mr Stephen Roberts on behalf of the Alawa, Marra and Ngandji Peoples. The application was registered on 12 October 2001. The Nathan River application, which covers a geographical area of 4885.62  sq km, encompasses 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 (12 November 2001) after the section 29(4) notification day (11 July 2001). Mr Sandy Limmen, Mr Sandy August and Mr Stephen Roberts are the named objectors. The Tribunal has previously determined that Form 4 objections in Group 4 have been properly accepted and that, while a Form 4 cannot be amended in a substantive manner after the statutory 4 month time limit has expired, there is no amendment of a Form 4 by the submission to the Tribunal of such matters as are contained in the contentions of the native title party in the matters before me: see the Decision of Member Sosso on whether the Tribunal has Jurisdiction to conduct an inquiry in Applications No. DO 01/3, DO 01/13, DO 01/19-23, unreported, 21 December 2001. I agree with and follow Member Sosso’s decision in those matters. I conclude that the Tribunal has jurisdiction to determine this inquiry.

[5] On 19 November 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 20 November 2001 I made directions in relation to the inquiry. Those directions were subsequently followed by all parties to the inquiry. At the listings hearing on 16 May, 2002, having assessed the evidence then before the Tribunal, I made the following observations:

…[in this matter] the standard documentary and affidavit material is now on the file. In light of that I want to say something that is quite serious as to the material…What I am going to say is in the context of my raising the question of the necessity for an on country hearing…I appreciate that none of you have had notice about that and I will be quite happy to give you time to consider what I am going to say and to take instructions.

It is my view that having read all the papers …I would be much assisted if [this matter] were heard on country. The criticisms which the government party has made of the objectors’ evidence in its contentions in reply have, in my view, real weight and I would be loathe to determine [the matter] adversely to one party because the evidence filed by that party is less than comprehensive. …

The government party says in its contentions in reply in relation to the evidence with respect to s.237(a) that the location of the communities which are said to be in the vicinity of the ELA is very imprecise and that there is no information as to whether the communities are in fact communities of relevant native title parties and if so, how many [of them there are]. That is in [56] of the contentions in reply.

In relation to section 237(b) at [70] Mr Lavery [for the government party] makes a point of some substance about the fact that there are 22 sites referred to in the AAPA sites information but only 6 of them are referred to in Mr August’s affidavit…..In [86] and following of the [government party’s] contentions in reply, the [native title party’s] affidavit material is commented upon in some detail and some real questions raised as to the cogency of the affidavit material as effective evidence before me.

Thirdly, in the contentions in reply, the government [party] makes an important point about authorisation [in respect of Mr Roberts’ evidence only]. That is at [107] of the contentions in reply. So in relation to 115, there are real issues and criticisms made of that native title party’s evidence in relation to..the communities said to be in the vicinity, in relation to the sites [of particular significance] and in relation to authorisation…..

[Further] no doubt those of you present today will have read my views on the land claim reports and [know] that similar views are held by Member Sosso and Member Franklyn. That is, that when land claim reports are 20 years old, as this particular land claim report is [in this matter], [the report] is only of historical value and [cannot be without more] evidence of present day community or social activities.

On the other hand, the land claim reports [may be of evidentiary value before the Tribunal] where the Commissioner had before him deponents who are the same people or people closely related to the people who are giving evidence in the particular objection inquiry…..I certainly do not say that the land claim reports are irrelevant [ in such a case] and have not said that. But the usefulness of land claim reports is a live issue before me in [this] inquiry as it has been in others. Taking all those matters on board, in my view as the evidence stands, I am not convinced that I am able to adequately determine [this matter] on the papers as section 151 requires me to be satisfied. And that is why I want to discuss the feasibility of an on country hearing with the parties today. And I am also interested in any suggestion any of the parties may have as to how the difficulties which I have raised, that is the issues raised by the government party in respect of the objectors’ evidence and which I say are issues I do give weight to, might be appropriately addressed. I am interested in particular in how the native title party, Mr Rumler, would see that these issues be addressed. Obviously they could be addressed by an on country hearing and that is what I am suggesting but if you have some other means whereby the difficulties would be addressed, I would like to hear from you…..

And what I think we should do in these circumstances is adjourn the listings hearing for some short time to give you, Mr Rumler, time to consider what might be done in order to remedy those issues raised by the government party and which I have spoken about today…But they are, I stress, evidentiary issues not matters for legal submission…I have an obligation under the Act to be satisfied that I can adequately determine matters on the papers. I am not suggesting an on country hearing to raise obstacles but I do feel with [this matter] that the state of the affidavit evidence must be looked to before I am satisfied. Now, if you are able to do that on the papers, then the need for an on country hearing will be obviated [and] the cost and expense of that prevented.

[Discussion ensued in which Mr Rumler sought time to seek instructions and although 27 May was a convenient time for the next listings hearing, Mr Rumler sought the later date of 5 June 2002 because of the unavailability of Mr Frith of counsel.]

At the listings hearing convened on 5 June, 2002, Mr Frith of counsel appeared and said:

The position can be summarised in that it is possible to provide sufficient evidence to persuade you of what you need to be persuaded under section 151 without a need for an on country hearing. And I am also instructed that the Land Council doesn’t have resources to support any such hearing on country at this stage….My instructions as to the resource position of the Land Council is that it is focussing, in regard to objections to the expedited procedure process, on a series of meetings it has organised regarding proposed agreements between grantee parties and particular groups as to the memorandum of understanding that has been reached between those exploration companies and the Northern Land Council…..And it is proposed that those meetings take place basically in the next few months in this Dry season…And that the allocation of resources precludes in the near future any on country hearing of this nature.

Mr Papandonakis for the government party then said:

Since the last listings hearing I have also been able to get instructions in relation to the future progress of [this matter]. And I can now advise the Tribunal that the government party strongly opposes any proposal to amend directions to allow further evidence to be supplied via affidavit and/or submission material. It is our submission that the Tribunal has enough evidence currently before it to determine these matters on the papers as they currently stand….It is the government party’s submission that the requirement in section 151(2) of the Act does not apply to situations where there is a mere paucity of evidence as much as it applies to where there is a clear inconsistency on the evidence.[He then referred to the dictum of Carr J. in Ward v. W.A. that “where facts are peculiarly within the knowledge of a party to an issue its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence. Again if this happens it is not because of the application of an evidential onus of proof but by the application of the common sense approach to evidence.” And continued: In our submission the native title party has taken its chances and decided not to produce evidence .which is peculiarly within its knowledge and it is now, with respect, incumbent on the Tribunal to determine [the matter] to make a determination on whatever inferences it considers appropriate.

I then said:

Thank you, Mr Papandonakis. Your proposition is that the issues are crystallised, the parties have had the opportunity to provide evidence and that is that.

Mr Papandonakis then said:

Well, my proposition, Member, is that there is clearly a failure to produce evidence in these matters. And the Tribunal has on numerous previous occasions in the Northern Territory determined matters on the papers applying its common sense approach to the evidence and drawing inferences where necessary.

I then said:

Mr Papandonakis, I am applying the common sense approach as I said and I am dealing with the particular [matter] before me. Certainly in the matters I have so far determined [in the Northern Territory] I have not been faced with such a level of incomprehensibility [ in the objectors’ evidence] as I am now faced with in [this matter]. And it is assistance I seek in order to be able to determine the issues which are crystallised in a way which makes sense at least to me. That is my dilemma in [this matter]. I do take your point that once the parties have had an opportunity to provide evidence and the issues have crystallised, it would usually only be where there is some inconsistency and cross-examination, for instance, is required. But this is not an ordinary adversarial procedure. I am faced with some inconsistencies in the evidence as well. I think that is a matter of characterisation. The problem I have is that section 151 requires me to hold a hearing if it appears to me that the matters cannot be adequately determined on the papers….Now the words “adequately determined’ in section 151 have been considered by this Tribunal [ in WA v. Thomas] but they have not been considered by [the Federal Court]. And as I said in [this matter] I find myself in a dilemma. I find myself without the assistance I need from the parties to determine this inquiry. And that assistance I know would be provided if I were to hold a hearing and have the parties explain to me- in particular have the native title parties explain to me what is meant by the evidence. The native title parties suffer under the disadvantage of giving evidence not in their first language. The affidavits before me appear to contain a lot of material. [However] the manner in which they are expressed and the manner in which the material is presented does not assist me at all to assess in any proper way what the objectors’ deponents are trying to tell me.

In these circumstances, I am taking on board the fact that the native title party is unable to attend an on country hearing and it is not really open to me to order an on country hearing to which the native title party could not come. I am therefore minded to grant Mr Frith a very, very tight time period within which to provide any further evidence or contentions which may assist in relation to these issues…. I am afraid this is a great indulgence, Mr Frith that is being offered to the native title party. The government party has pointed that out. I am prepared to grant this indulgence but it is not something that I will be regularly doing in every matter I have before me but I find myself as the constituted Tribunal in this matter in a genuine dilemma. So I am prepared to grant you a very, very short time period in order to provide the evidence……It is really only the evidence I am interested in, Mr Frith. Long submissions on what the evidence really means doesn’t interest me much and I don’t think would assist me much.”

I then made directions that the native title party filed any further material by 12 June 2002 and the government party and grantee party file any responses by 19 June 2002 and that the matter proceed to determination on the papers on 19 June 2002. In due course, the native title party filed further contentions and an affidavit of an anthropologist, Ms Anna Nolan affirmed 12 June 2002, and the other parties filed further contentions.

Having received the further material from the parties, I formed the view that I was satisfied that I could adequately determine the matters on the papers and I now proceed to do so.

The Evidence

Objectors’ Evidence

[7] The native title party relies upon an affidavit of Mr Harry Lansen of Jandanku Aboriginal Land Trust (Bauhinia Downs)  in the Northern Territory of Australia affirmed 15 April 2002, which is set out in full below:

I, HARRY LANSEN of Jandanku Aboriginal Land Trust (Bauhinia Downs) in the Northern Territory of Australia, do solemnly and sincerely declare and affirm as follows:

1.   I know where the area of ELA 22297 is.  ELA 22297 is just to the west of the Jandanku Aboriginal Land Trustee area (Bauhinia Downs), where I live.  I am a traditional Aboriginal owner for Bauhinia Downs.  The ELA is on Broadmere station, next door.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “HL 22297” is a map of the ELA and the surrounding area.  Marked on it are some of the places referred to in this affidavit.

2.   The Government should listen to Aboriginal People.  They have to come and talk to Mingirringgi and Junggayi, if there are sacred sites.

3.   I live with my mob at Bauhinia Downs.  We are always using that country.  In the dry season, we go hunting all through that country, including the ELA.  We go fishing, getting sugarbag, getting kangaroo, bush turkey, turtle, short-necked and long-necked turtle.  We get bream and catfish.  I go often, because it’s close up to my boundary at Bauhinia Downs, where I live.

The native title party also relies upon the affidavit of Anna Nolan affirmed 12 June 2002:

I, ANNA NOLAN, anthropologist of 15 Cosker Street, Annerley in the State of Queensland, do solemnly and sincerely declare and affirm as follows:

1.   I am a consultant anthropologist.  I have been working as an anthropologist in the Northern Territory since 1990, mainly working as an employee of AAPA in registering and recording sacred sites, and, latterly, researching traditional ownership and other matters for the Northern Land Council.  I have performed anthropological work in the Borroloola region since 1997 and in the Broadmere/Nathan River area since 2001. 

2.   I am aware of the contents of the affidavit of Harry Lansen in this matter.

3.   He has told me, and I believe, that he is Mingirringgi for his father’s country, Nangkuya, which is part of Alawa country in the northern parts of Bauhinia Downs and Broadmere stations.

4.   In my opinion, from my experience in the region, he has traditional authority to speak for country, as a senior leader and participant in regional ceremony.  He is senior man for the Bauhinia Downs outstation, where he lives.

[8] The native title party submitted the following further evidentiary material to the Tribunal:

(a)The Cox River (Alawa/Ngandji) Land Claim Report dated 20 November 1984 (“the Land Claim Report”), of the Commissioner appointed under the Aboriginal Land Rights(Northern Territory) Act 1976(Cth) (“the Land Rights Act”)

(b)A document entitled “Rights conferred under exploration licence”.

(c)A document entitled “Analysis of Legislation dealing with significant areas and sites”.

(d)A document entitled “Exploration Activities” annexed to the affidavit of Mark Frederick Foy. This document is relied upon as a statement of expert opinion.

(e)The Transcript of the evidence of Mark Frederick Foy given on 4 December 2001 (the Foy transcript). This transcript is relied on as a statement of expert opinion. 

(f)The affidavit of Jeffery John Wilson Stead affirmed 8 October 2001. This affidavit is relied upon as a statement of expert opinion.

(g)Information and map provided by the Aboriginal Areas Protection Authority in relation to Aboriginal Sacred Sites within the area of the proposed tenement (‘the AAPA sites information and AAPA map”).

The Government Party’s Evidence

[9]  The government party submitted its particulars 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)The Government advised that it also intends to rely on its Standard Exhibits Documentation as particularised in its Contentions.

The Grantee Party’s Evidence

[10] The grantee party advised in a letter by Ms Lisa Bowyer, Tenement Manager, dated 14 June 2002:

“Astro Mining NL understands and intends to conduct exploration in accordance with the terms of the Mining Act and the conditions as set out in the Second Schedule of Conditions for the Exploration Licence.

Astro Mining NL acknowledges that the land the subject of the Exploration Licence may contain areas of significance to the Objectors and is prepared to negotiate an agreement pursuant to which certain exploration activities could be conducted.

Astro Mining NL is committed to the establishment and maintenance of effective and beneficial community relations with all traditional Aboriginal landowners as outlined in the Company’s Community Relations Policy[ the Attached Policy contained the following:”Ensure that its activities are conducted in compliance with local, State and Federal Government legislation and where appropriate indigenous customs.]

Astro Mining NL has a genuine interest in preserving the attributes of Australia’s environment as outline in the Company’s Environmental Policy[attached]….

Astro Mining NL states again that all stages of exploration will be conducted in full consultation with all relevant landowners.”

Also placed before the Tribunal was a document entitled “Proposed Exploration Program” which set out in detail the program for exploration activity over 6 years, which may involve reconnaissance surface geological mapping, the setting up of a field camp, stream or loam sampling or geophysical anomaly followup by sampling and/or drilling, as well as drilling of magnet targets.

The Parties’ Contentions

[11] The government and native title parties filed extensive contentions in the proceedings. I have considered the contentions in detail and will refer to them with particularity where appropriate.

General Legal Principles

[12] Section 237 of the Act provides:

“A future act is an act attracting the expedited procedure if:

(a)the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders…of native title in relation to the land or waters concerned; and

(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are holders… of the native title in relation to the waters concerned; and

(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”

[13] Both the government and the native title parties filed written contentions as to the legal principles which the Tribunal should apply in this inquiry which were similar to the contentions filed in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory D0 01/13, unreported, Member Sosso, 1 February 2002. I concur in the reasoning and conclusions as to the general legal principles set out in [21]-[47] of his determination and adopt those principles for the purposes of this determination.

Reasoning

Section 237(a) – Interference with carrying on of community or social activities

[14] The Government party in its Statement of Contentions at [7]-[8] set out its submissions as to the proper construction of section 237(a) with which I agree. I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WOOO/92, 25 June 2001 at [21] that the only interference relevant under section 237(a) involves acts likely to interfere directly with the physical conduct and physical manifestations of the community and social life of the native title holders in relation to the land of the proposed tenement.

[15] The native title party in its Contentions at [55]-[58] contends that:

“[55] There are several aboriginal communities ‘in the vicinity of’ the licence area which are occupied by members of the native title claim group. They include;

a.  Bauhinia Downs community lies approximately 18 kilometres to the east of the licence area.
b. Broadmere Homestead lies about 10 kilometres south of the licence area.

[56] There are 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 and areas, including the licence area, for the purpose of carrying on community and social activities.

a. One central north south track and several lesser ones cross the licence area.
b. The Broadmere Homestead Road ends approximately 10 kilometres south of the licence area.

[57] There are several water bodies and other areas of environmental significance in and around the licence area. These are used for fishing, as sources of drinking water and may sustain and be part of areas and sites of significance.

[58] The community and social activities of the Native Title Claim group include;

a. Foraging which was found to include hunting, gathering food and collecting firewood, and obtaining water; in general obtaining the means of day to day sustenance [Land Claim Report[29], [108], [109][112], [120]]. An inference can be drawn that this activity takes place not only in the Land Trust area, but also in the licence area, which joins the Land Trust area to the west.  It is unlikely, given the general nature of the finding in the Land Claim report and the particular nature of the evidence that gave rise to that finding, that foraging by the land claimants, which includes many of the native title holders, is limited to the area of the Alawa Aboriginal Land Trust;
b. The gathering of mineral resources for manufacture of tools and implements and for ceremonial purposes [Land Claim Report [155]];
c. Collection of bush medicines [Land Claim Report [109]], and photograph on page 25];
d. Teaching children about traditional laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas or sites [Land Claim Report[117] ];
e. The community of native title holders actively look after country, by visiting and maintaining sites [Land Claim Report [137]]. This activity is conducted by individuals with specific for that area or those sites.
f. Hunting, fishing and gathering of bush tucker [affidavit of Harry Lansen [3]];

Those activities occur over some or all of the licence area, and in its vicinity.
These activities occur regularly and are carried on by more that isolated numbers of members of the native title claim group:

The Government party in its contentions in reply at [7] stated;
 “In relation to [29], the government party asks the Tribunal to note that;
           (a) the land report nominated in (b) has little, if any, evidentry value given;
  (i)  the time that has elapsed since the report was published in 1984;

(ii) the fact that the land the subject of the land claims is not within or
     coextensive with the tenement”

See relevant comments of Member Stuckey-Clarke in Dingie Neade/McCleary Investments Pty Ltd/Northern Territory, DO01/55, 19 April 2002 at [18].

[16] The government party in its contentions  at [8] that the grant of the proposed licence is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land for the following reasons;
           a. no aboriginal community is located within the proposed licence area;

b. One aboriginal community is nominated in the Form 4: Bauhinia Downs which

lies 18 kilometres east of the proposed licence area. One station homestead is nominated in the Form 4: Broadmere Station homestead which lies 10 kilometres south of the proposed licence area. These communities/homesteads are such a distance away from the proposed licence area that its grant is not likely to interfere directly with the carrying on of any community or social activities.

And at [44] and [46] of its contentions in reply, the government party contends:-

[44 ] Bauhinia Downs and Broadmere Homestead are contended in Paragraph 55 of the Objectors Contentions as relevant communities, but it is uncertain if they are, wholly or partially, a community of relevant native title claimants, the number of residents, and whether they are seasonally or permanently occupied. In addition, it is conceded that none are situated on the proposed licence area, the latter being 10 kilometres to the south and the other 18 kilometres to the east.

[46] The proposed licence area has been subject to extensive prior exploration activity in the form of stream sediment/loam sampling, rock chip sampling, ground radiomatic sampling, percussion drilling and soil sampling (see particular Map D and the schedule of Prior Exploration/Mining Activity at Attachment A to our Contentions).

[17] I note also that the Government Party in its statement of contentions has led evidence in [21-22] of quite extensive previous exploration activity with exploration licences granted over the area in the past, including in the last twenty years.

[18] The statutory regime operating in the Northern Territory is a comprehensive one aimed at preventing interference with community or social activities of native title holders by explorers. Exploration licences are granted in the Northern Territory subject to statutory conditions made pursuant to section 24 A Mining Act. Pertinently the first two conditions are:

“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;

(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 the disturbance or the environment of the licence area, in particular by minimising:

(a)   interference with the use of the land by other persons;

(b)   the disturbance of flora, fauna or other natural resources;

(c)   pollution, including soil, water and atmospheric pollution;

(d)   the incidence and effects of soil erosion.”

[19] There are a further 17 conditions aimed at prohibiting a range of activities which might directly interfere with community or social activities of native title holders. In particular, Cl. 18 requires the licensee to convene a meeting with registered native title holders prior to the commencement of exploration activities and have regard to any aspect of the proposed exploration activities which raise concerns. As Member Sosso said in Kathleen Parry, Albert Myoung, Paddy Huddleston and Marjorie Foster/Northern Territory/Troy Resources NL DO 01/85, unreported, 12 June 2002, at [43] referring to the s.24A Mining Act conditions:

“These are not the only relevant provisions in force in the Northern Territory, but they highlight the fact that there is in place a regime aimed at preventing ( as far as practicable) disturbance to community or social activities by explorers. Obviously the existence of this regime does not render a section 237(a) inquiry unnecessary, and it is always possible on the basis of the evidence presented to an inquiry that the Tribunal may find that there is a likelihood of interference pursuant to s.237(a). Nevertheless, it is clear that the combination of the various statutory provisions and conditions in the Northern Territory goes quite some way in ensuring that exploration activity will, in many instances, not result or not be likely to result, in interference to community or social activities.”

[20]  The native title party deponent lives at Bauhinia Downs which is not situated on the proposed tenement. I am prepared to infer that there exists an aboriginal community there and I accept Mr Lansen’s evidence at [3] that people from that community conduct hunting and foraging activities on the land of the proposed tenement regularly. Further, I accept Ms Nolan’s evidence that Mr Lansen is senior man for the Baukinia Downs outstation at [4] and that he is Mingirringgi for his father’s country,Nangkuya, which is part of Alawa country in the northern parts of Bauhinia Downs and Broadmere stations at [3]. However, as Member Sosso pointed out in Kathleen Parry & Ors/Northern Territory/Troy Resources, unreported, DO 01/84, 24 May 2002 at [14]:

In essence, the contentions of the government party is soundly based. Section 237(a) is directed towards the community or social activities of native title holders. The fact that there are communities on or in the vicinity of a proposed tenement is not relevant to a section 237(a) inquiry unless there is evidence that the holders of native title reside in those communities, or otherwise have a connection with them.

[21] The government party in challenging Mr Lansen’s authority to speak for the native title claim group brings no evidence to indicate that he is not so authorised although it is pointed out at [68] of the government contentions in reply that:

“ Mr Harry Lansen is a registered native title claimant of D6030/00(DC00/29), a claim in behalf of the Alawa People. He makes no assertion that he is authorised by the native title claim group in this claim ( D 6053/01, DC 01/52), this being made on behalf of the (quote) “the Alawa, Marra and Nganji Group”(singular). This nomenclature, without explanation, is impenetrable. At its inferential highest, Mr Lansen might only speak authoritatively to that country which is Alawa or perhaps, on an estate model, merely a portion of it.” Further, the Government party points out at [10] of its further contentions that  “Mr Lansen states at paragraph 3 of his affidavit that he goes hunting “throughout that country, including the ELA…because it’s close up to my boundary at Bauhinia Downs, where I live.” This implies that Mr Lansen himself differentiates between his land and the country(including the proposed EL) upon which he hunts.” I consider that these contentions are persuasive and present a direct challenge to the objectors’ evidence. For this reason, I suggested that the matter be heard on country. The objectors were unable to take advantage of the opportunity for a hearing on country and were given a further opportunity to present further evidence, namely the affidavit of Anna Nolan.

Further, I do not accept the objectors’ contention that the Alawa Aboriginal Land Trust area can be treated as if it were a community for the purposes of the inquiry, merely on account of its status as Aboriginal freehold land. As Member Sosso said in Kathleen Parry & Ors/Northern Territory/ Troy Resources, unreported, D0 01/85, 12 June 2002 at [13]:

I have previously determined that the fact that land adjoining a proposed tenement is of a particular tenure does not of itself assist the Tribunal. The fact that the tenure in question is an Aboriginal Land Trust may lend itself to the carrying on of community or social activities by the native title holders. However, the existence and nature of such activities must be demonstrated by evidence, and cannot be assumed simply because there are land and waters falling within a particular tenure type.

[22] Although I am prepared to hold that there exists an aboriginal community at Bauhinia Downs of which Mr Lansen is the senior man, that aboriginal community is not shown by any evidence to be a community of relevant native title holders. Further, that community is not located on the proposed tenement. The other aboriginal community said to be a relevant community is some 10 kilometres distant from the tenement and I do not accept that Mr Lansen is senior man for that country since he deposes in [1] only to being a “traditional Aboriginal owner for Bauhinia Downs” and he describes Broadmere station as being “next door”. Ms Nolan in her affidavit at [4] confirms only that he is senior man for Bauhinia Downs. Thus, I find that the Broadmere community is not shown by any evidence to be a community of relevant native title holders. Since the government party has directly challenged the objectors in relation to this issue, and the native title party was given further time to provide further evidence on this issue, on balance taking a common sense approach to the evidence, I find that the two affidavits before me provide inadequate evidence of any linkage between Mr Lansen and the native title claim group and therefore inadequate evidence of any contemporary community or social activities being conducted by relevant native title holders which might be the subject of interference if the licence is granted. The only other evidence of such activities is said to be found in the Land Claim Report which was published on 20 November 1984. As I have previously held, evidence of this kind provides evidence of activities in the past and cannot of itself, and without more, provide a sufficient basis for an evidentiary inference that such activities as were found to have been conducted then, on the land subject to the Land Claim which is not coincident with the proposed tenement, are conducted now by native title holders on the proposed tenement. In this matter with respect to the Land Claim Report, I take the same view as Member Sosso did in relation to other Reports of similar age in  Andy Andrews, Tex Camfoo and Peter Woods & Ors/ Northern Territory/Exploration and Resource Development Pty Ltd, unreported, DO 01/123-5, 19 August, 2002 at [86-88].

[23] In any case, even if I were to find that community and social activities are sufficiently evidenced as being presently conducted by the native title claim group on the proposed tenement, it would be necessary for the native title party to show that the statutory regime will not prove a sufficient protection from direct interference. In previous cases this has proved to be a difficult standard to satisfy in cases like the present where there is evidence that the land the subject of the proposed tenement has been the subject of previous exploration activity and there is no evidence that such activity has at any time in the past caused interference with community or social activities: see Don Rory & Ors / Northern Territory/Astro Mining NL, unreported, DO 01/110 and 111, 10 May 2002, Deputy President Franklyn QC at [16]. However, in the present case, this question does not arise for in my view, there is no evidence before me of contemporary community and social activities carried out on the proposed tenement by the objectors. Therefore, I hold in this matter just as Member Sosso held in Arthur Que Noy, Gabriel Hazelbane, Paddy Huddleston and Marjorie Foster/ Northern Territory/Biddlecombe Pty Ltd, DO 01/112 unreported, 4 July 2002 at [24]:

“It is a condition precedent for conducting a section 237(a) inquiry that the native title party produces some contemporary evidence of community or social activities. Here no such evidence has been produced, and accordingly, I am unable to find that there are social or community activities conducted by the native title holders on the proposed tenement. No issue of conducting a predictive assessment of the likelihood of interference pursuant to section 237(a) arises due to the absence of evidence of relevant contemporary activities.”

Section 237(b) – Sites of particular significance.

[24] In Moses Silver at [86]-[107], Member Sosso analysed legal issues raised by the contentions of the government and native title parties in respect of the general legal principles applicable to and the proper construction of section 237(b) which were also raised in similar contentions in this matter. I agree with Member Sosso’s analysis of those issues and adopt it for the purposes of this determination.

[25] So far as section 237(b) is concerned, the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the areas or sites must be “capable of identification” and the nature of their significance to the holders of native title must be explained to the Tribunal: see Western Australia/Winnie McHenry WO 98/125, 28 July 1999. It will usually be the case that evidence relating to particular significance will be peculiarly within the knowledge of the native title party and that, absent documentary evidence, such as the Sacred Sites records, evidence of location and identification will also be peculiarly within the knowledge of the native title party so that failure to produce such evidence may lead to the drawing of an unfavourable inference on the issue taking the common sense approach to evidence: see Carr J. in Ward v. Western Australia(1996) 69 FCR 208 at [217].

[26] The native title party relies primarily upon Mr Lansen’s affidavit and the map annexed thereto. No sites of particular significance are marked as being located on that map.  The affidavit of Anna Nolan is also relied upon. The government party challenged Mr Lansen’s authority to speak for the objectors. For reasons that appear below, namely the failure to evidence the existence of or to locate any sites of particular significance on the tenement, it is not necessary for me to determine that issue.

[27] The native title party also relies upon the AAPA sites information and map which indicates that there are no recorded or registered sites notated within the proposed licence area.

[28] The native title party also relies upon the affidavit of Jeffrey Stead who deposes to his belief that it is unlikely that the AAPA Register for any particular area will be accurate and complete for all sites of areas of significance within it. Mr Stead also gave oral evidence at the hearing on 3 December 2001. I refer to my analysis of Mr Stead’s evidence in Roy Dixon/Plenty River Corp. Ltd/Northern Territory, DO 01/51 at [24-25] and note that Mr Stead advised the Tribunal that he was not aware of any inaccuracies in the geographical description of any sites referred to in the AAPA sites information and map provided to the Tribunal and relied upon by the native title party in these proceedings.

[29] The Tribunal is aware of the extensive legislative regime created by the NorthernTerritory Aboriginal Sacred Sites Act and the Mining Act which protects sacred sites, the ambit of which extends beyond the prevention of interference with areas or sites of particular significance under the Act. I find that it has not been established before me that these legislative provisions are practically ineffective; indeed the evidence is to the contrary. I accept the government party’s contention that the protective and regulatory regimes at both the Territory and Commonwealth levels and the Second Schedule Conditions significantly reduce the likelihood of interference with sites of particular significance.

[30] Further, the grantee party has led evidence before this inquiry to demonstrate its intention to comply with that regime and to consult with native title parties at all relevant times.

[31]  Therefore, in light of the Northern Territory statutory regime for the protection of sacred sites, the failure of the native title party to demonstrate the existence of any sites of particular significance to relevant native title holders within the boundaries of the proposed tenement and taking into account the grantee party’s intention to comply with its statutory obligations, I find that it is not likely that the any areas or sites of particular significance which may exist on the proposed tenement will be interfered with by the proposed grant.

Section 237(c) - Major Disturbance to land or waters

[32] 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] and note the effect of the Mining Amendment Act No.44 of 2001 in repealing s.166(1)(a) of the Mining Act  and inserting s.161(1A):see Deputy President Franklyn’s discussion of this legislation in Angus Riley and May Foster on behalf of the Wirntiku, Milwayijarra and Ngapa Groups, DO 01/70 and 71,unreported,17 April 2002 at [19].

[33] The government party contended at [12]-[20] of its contentions 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.

[34] The native title party contended at [65]-[87] that the potential major disturbance to country included holes left from drilling, track built on country which would damage fauna and flora and promote erosion, damage to watercourses, reducing sustainable water supply and excessive dust.

[35] The native title party in its Contentions in Reply contended:

Section 24(e) Mining Act only deals with disturbance to surface area and not with other kinds of disturbance;

(a)The full extent of rights accorded to a grantee are found in sections 23(b)-(d);

(b)Section 23(c) may permit substantial extraction or removal amounting to major disturbance;

(c)An exploration licence permits high impact activities e.g. road construction, drilling, sampling, costeaning and camp construction;

(d)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;

(e)Rehabilitation does not mean that major disturbance has not occurred or that rehabilitation may itself involve major disturbance.

(f)The presumption of regularity does not extend to enable the Tribunal to rely on some  fetter on the Secretary’s discretion

(g)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.

(h)Condition 19’s protection is subject to Ministerial discretion and only deals with disturbances to the surface of the soil;

1. Condition 20’s protection depends upon Ministerial enforcement and native title holders have no right to stop exploration or otherwise prevent or rectify damage;

(j)The regime set out in the Mining Management Act 2001 will not operate in all circumstances: see [46-9]

[36] On 4 December 2001 an oral hearing was held during which the native title party’s expert Mr Mark Foy gave evidence in relation to mining exploration activities in the Northern Territory. He was cross-examined by the government party’s counsel who then in his Final Contentions at [2]-[25] made extensive and useful submissions as to Mr Foy’s evidence which I accept.

[37] The government party in its Final Contentions annexed an affidavit of Mr Gosling sworn 5 December 2001 who is the Assistant Director, Mining Engineering and Technical Support for the Mines Division of the Northern Territory Government’s Department of Business, Industry and Resource Development. In this affidavit he deposes in substantial details to the administrative operation of the relevant sections of the Mining Act. There was no application by the native title party to cross-examine Mr Gosling and his affidavit was received into evidence before me (as was the affidavit of Mr Bland which was also attached to the Final Contentions of the government party.)

[38] The full set of contentions and the same evidence of the government and native title parties referred to above was before Member Sosso in Moses Silver and in that determination he analysed the content of them in a very detailed manner at [154-162] and [165-168]. I concur in Member Sosso’s analysis and his conclusions at [156-7] and adopt them for the purposes of this determination.

[39] There is also before me in this matter evidence relied on by the government party in relation to previous mining activity on the proposed tenement. The government party’s Final Contentions at Attachment E provides a revised schedule which includes a list   which shows that there have been twenty three previous exploration licences granted within the same area dating continuously from 1976 to 1972, 1984 to 1990, 1991 to 1997.
Details have been provided in relation to the some previous exploration activities that were carried out

[40]The government party has provided evidence of prior Exploration Licences granted over the same area from 1972 to 2001. They are EL343, EL345, EL1423, EL1568, EL2122, EL2715, EL3123, EL3499, EL4211, EL4542, EL4547, EL4551, EL4553, EL4936, EL4960, EL6015, EL7208, EL7301, EL7827, EL7829, EL9036.

Particulars of the exploration activities were provided for the following ELs;
EL4211
           Activity: Stream sediment/loam sampling involved:

(i)  the collection of sediment sample (40kg) from a suitable trap within the drainage;

(ii)  onsite screening of the sample to collect a particular size fraction; and
           (iii) laboratory processing/analysis of the sample for heavy mineral content.

EL4547, EL4551, EL4553, EL7301,EL6015, EL 4542.
           Activity: Stream sediment/loam sampling
EL4960
           Activity: Soil sampling involved;
  (i) collection of sample (1kg) from a suitable soil horizon;
  (ii) onsite screening of the sample to collect a particular size fraction; and
  (iii) laboratory processing/analysis of the sample for mineral content.
El7827
           Activity: Stream sediment/loam sampling
   Rotary Airblast (‘RAB’) drilling involved:
   (i) preparation of drill site;
   (ii) drill to predetermined depth;
   (iii) collection of drill sample per metre(10-50kg);

(iv) onsite screening of the sample to collect a particular size fraction
          and;
    (v) laboratory processing /analysis of the sample for mineral content.

El7829
           Activity: Stream sediment/loam sampling
   Rotary Airblast (‘RAB’) drilling

[41] Finally, at [73]-[75] of its contentions in reply the government party points out that Mr Lansen does not depose to any concern arising form the grant of the proposed licence except that ‘[t]he Government” should listen to Aboriginal people and talk to custodians “if there are sacred sites’ at [2] but that he does not depose to any interference or disturbance of any kind at all including that referred to under s.237(c) as a result of any previous exploration activities.

[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”,  having considered the grantee’s evidence of its intention to comply with the statutory regime and the evidence of previous exploration 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 22297 to Astro Mining NL is an act which attracts the expedited procedure under the Native Title Act 1993.

J. E. Stuckey-Clarke
Member