Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto/Exploration & Resource Development Pty Ltd/Northern Territory
[2002] NNTTA 197
•30 August 2002
NATIONAL NATIVE TITLE TRIBUNAL
Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto/Exploration & Resource Development Pty Ltd/Northern Territory, [2002] NNTTA 197 (30 August 2002)
APPLICATION NO: DO 01/126
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application
TEX CAMFOO, PETER WOODS, DAVID DANIELS & DOREEN PONTO (native title party)
- and -
EXPLORATION & RESOURCE DEVELOPMENT PTY LTD (grantee party)
- and -
NORTHERN TERRITORY OF AUSTRALIA (government party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 30 August 2002
Hearing date: 8 May 2002
Government Party: Mr Matthew Storey, 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 Geoff Fanning
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – registered or recorded sites – previous exploration/mining activity – legal principles – no evidence of community or social activities – no areas and sites of particular significance – no evidence of prior disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation: Acts Interpretation Act 1902 (Cth) s 36
Mining Act (NT) ss 24A, 24(j), 44H, 166 (1A) (1B) (2)
Mining Management Act 2001 (NT) Parts 3, 4
Native Title Act 1993 (Cth) ss 29, 32, 151, 237
Cases:Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, Member Williamson, 5 August 2002
Harry Lansen for the Alawa People/Biddlecombe Pty Ltd/Northern Territory DO01/113, unreported, Member Stuckey-Clarke, 2 August 2002
May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO 01/98, unreported, Member Sosso, 25 June 2002
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002
Smith v Western Australia (2001) 108 FCR 442
Western Australia v Smith (2000) 163 FLR 32
Wik Peoples v Queensland (1996) 187 CLR 1
REASONS FOR DETERMINATION
Background
[1] On 25 July 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 23047 (“the proposed tenement”) to Exploration & Resource Development Pty Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 119 blocks (approximately 370 square kilometres) and is comprised of the following:
Perpetual Pastoral Lease 1099 which is known as ‘Urapunga’;
Perpetual Pastoral Lease 1159 which is known as ‘Lonesome Dove’;
Perpetual Pastoral Lease 1160 which is known as ‘Big River’;
Perpetual Pastoral Lease 1161 which is known as ‘Chatterhoochee’;
Perpetual Pastoral Lease 1162 which is known as ‘Mount McMinn’ and
Two parcels of vacant Crown land: NT Portion 2193 and NT Portion 4256.
[3] On 25 October 2001 a native title determination application was filed with the Federal Court (D6065/01). The name given to this application is “Big River Urapunga”, and the Applicants are Mr Tex Camfoo, Mr Peter Woods, Mr David Daniels and Ms Doreen Ponto (on behalf of the Ngalakan Group). The application was entered on the Register of Native Title Claims on 24 November, 2001. The Big River Urapunga application wholly covers the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 26 November 2001. Technically this was more than four months after the section 29(4) notification day of 25 July 2001 (section 32(3)), however 25 November 2001 was a Sunday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
The named Objectors, Tex Camfoo, Peter Woods, David Daniels and Doreen Ponto are also the abovenamed applicants.
[5] On 4 December 2001 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. On 5 December 2001 I issued Directions for the conduct of the Inquiry and the various contentions made by the parties have been pursuant to those Directions. A Listings Hearing was convened on 8 May 2002 and on that date I made further Directions for the supply of material in this inquiry.
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. In this instance, having regard to the material before the Tribunal, and the requirements of section 151(2), I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.
[7] The parties have submitted to the Tribunal extensive written contentions, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 9 April, 2002.
Contentions in Reply (“GPCR”) dated 3 May 2002.
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 23 April 2002.
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 7 May 2002.
Grantee Party Contentions
Statement of Contentions of Grantee Party (“Gr1”) dated 29 April, 2002.
Evidence
Affidavit of Kevin Rogers
[8] The native title party lodged the Affidavit of Kevin Rogers which was affirmed before Benedict John Scambary, a Commissioner for Oaths, on 17 April 2002. The Affidavit is set out below:
“1. I am a member of the native title claim group in the Big River – Urapunga native title determination application (DC01/65)
2. I am a senior Mingirringgi for Mambali country belonging to the Ngawurrbalan – Djindiwirritj group on Big River, Mt McMinn and Urapunga Pastoral Leases. I am Mingirringgi through that old man from Badawarrka who passed away. He was brother for old Splinter Gerrepberre.
3. The area of the native title application covers ELA 23047. I have seen a map of the area of the ELA. Now produced and shown to me marked “KR 23047” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
4. We want the right to negotiate with the mining company about this exploration.
5. ELA 23047 is very close to Badawarrka outstation, and the Roper Highway, and there are also some tracks there that we use for hunting and fishing along the Roper River and all the creeks running there.
6. We need to know that our access to that country will not be blocked by the exploration works, because people need to go hunting.
7. We get all kind of fish in the Roper River and in the creeks through this ELA area. We get barramundi, bream, long-necked turtle and short-necked turtle.
8. And we go hunting for kangaroo, emu, bush turkey, water goanna, and bush medicine, like Buduga from a little shrub, and that smelling grass near the creeks. We use that Paperbark Tree for bush medicine, and Sugarbag (native honey), too. That wild honey, that hard yellow stuff in Sugarbag, same like an orange, or like a cake, we use him for medicine – rub him on rash. And we use another part called Ngalbun for ringworm. All of these things come from the land. That’s why we need to be sure that this exploration by the mining company won’t damage the land.
9. We are worried about degradation of country because of trucks coming in, and then we get our land degraded – all our hunting areas, fishing area, cooking areas.
10. We want the mining company to tell us when they are going to be working there, but not only that, we want some sort of assurance from the mining company that they will not degrade the country, the land and the river systems in these areas where we go hunting and fishing.
11. I am worried that if they start going through with graders or machinery, there will be soil erosion, and that will cut down our access. It will make our tracks more difficult to drive on.
12. Some mining companies are good, they don’t cause damage, but we don’t know this company Exploration and Development Pty Ltd, and that’s why we want to meet them and have some assurance from them that the country is not going to be left with erosion or other damage.
13. If they are going to start grading tracks, digging big holes, I am worried that will spoil some places where we get food – like blackberries, like in some places around the creeks in this ELA. Some of these types of trees and little shrubs. They might gone for good, if they get destroyed by machinery.
14. We need all them trees and little shrubs for hunting. We get blanggangga – white currant, and Billy-goat plum, and gumirri that black currant, and kulinja – another type of blackberry.
15. Some of these kind, they are the most easy to damage, if they start grading through there.
16. Outside this area, other Aboriginal people expect us to look after this country. If it gets damaged, we get trouble from them, for not keeping this country in a good way. Once it’s damaged, it’s damaged for good. We can’t get any compensation for that. It takes many years for damage to recover. We don’t want that.
17. We use this country all the time for hunting, fishing, camping out. In the dry season especially, people go hunting from Badawarrka and from other communities along the Roper River. They go every week, most days of the week, there is always someone out hunting or fishing in this country.
18. We have got to have some kind of agreement with the mining company that safeguards ourselves and the future of our country.
[9] The government party raised some concerns about this Affidavit. In the first place it was pointed out (GPCR at para 96) that Mr Rogers is not an Applicant, and there was no primary material before the Tribunal from the named Objectors (Tex Camfoo, Peter Woods, David Daniels and Doreen Ponto) that Mr Rogers was authorised to speak on behalf of the native title claim group or any sub-group thereof.
[10] Mr Rogers deposes that he is a member of the native title claim group in the Big River – Urapunga native title determination application, and that he is a senior Mingirringgi for Mambali country belonging to the Ngawurrbalan – Djindiwirritj group on Big River, McMinn and Urapunga pastoral leases (Affidavit at paras 1 and 2).
[11] The thrust of Mr Rogers’ evidence concerns community and social activities and matters pertaining to possible disturbance to land and waters. He does not depose to matters relevant to sites of particular significance. In these circumstances the absence of any other primary evidence about his “qualifications” to speak for particular country or particular sites is not of central importance. I have no reason to doubt that Mr Rogers is a member of the claim group and is a native title holder. Questions about “authorisation” and “qualifications” of deponents are rarely of importance other than when conducting an assessment pursuant to section 237(b). Provided that there is no reason to doubt that a person is a native title holder, then that person’s evidence on lifestyle, historical, environmental and interpersonal matters can be considered when carrying out assessments pursuant to section 237(a) and (c) without the Tribunal needing to have before it detailed information about that person’s “qualifications” to speak for the claim group. Obviously if a person does not depose to being a member of the relevant native title claim group or there is material before the Tribunal putting this issue into contention, a different approach will be taken. Suffice it to say in this inquiry, there is no reason to question the ability of Mr Rogers to depose to the matters outlined in his Affidavit.
[12] The second issue raised by the government was as follows (GPCR at para 6):
“(a) No map was attached to the affidavit of Kevin Rogers. A map subsequently served by the Objectors and suggested that it should be attached to the affidavit is not marked in the manner indicated in the affidavit of Mr Rogers. No alleged sites or areas of particular significance are marked on this map.”
It is the case that a map was not originally annexed to the Affidavit of Mr Rogers, and the map subsequently supplied which is signed by Mr Rogers, does not appear to be marked in the manner outlined in his Affidavit. However, in the totality of this inquiry, nothing of importance turns on this discrepancy.
Aboriginal Communities
[13] No evidence was adduced of any Aboriginal communities located within the boundaries of the proposed tenement. The native title party, however, made the following submission (OSC at para 64):
“There are several communities in or in the vicinity of the licence area, which are occupied by members of the native title claim group. They include:
(a)Kewulyi Aboriginal Land Trust, with its community at Kewulyi, lies about 20 kilometres to the south west of the licence area.
(b)Roper Bar (Yutpundji-Djindiwirritj Aboriginal Land Trust) constitutes the eastern boundary of the licence area.
(c) Badawarrka is very close to the eastern boundary of the licence area [affidavit of Kevin Rogers [5]].
[14] The government party initially pointed out that (GPSC at para 8):
“a) No Aboriginal community is located within the proposed licence area; and
b) The Form 4 cites no communities as being within the vicinity of the ELA area. It would appear though that the communities of Jowar (population 12 – June 2000) and Buddawarka (population 15 – June 2001) are located within approximately 2km and 4km respectively of the eastern ELA boundary. The community of Bringung is approximately 20kms distant from the south western corner of the ELA area (as at February 2001 the Community had no recorded population)
c) The Form 4 does note the proximity of two Aboriginal Land Trusts (Kewulyi 20 kms to the south west and Yutpundji-Djindiwirritj to the east). Such a trust is merely a form of tenure. The proximity of a Land Trust area itself is not probative of the existence of community or social activities of the alleged native title holders within the affected area.”
[15] Mr Rogers only specifically names the Buddawarka community in his Affidavit, although he does refer to “other communities along the Roper River.” Unfortunately no information is provided by Mr Rogers about these communities. In particular they are not named or located and it is not possible to determine whether these communities are wholly or partially comprised of members of the claim group. Buddawarka would appear to be located approximately 5 km to the east of the subject area.
[16] The government party’s contentions about references to Land Trust areas are well made. The focus of an assessment pursuant to section 237(a) and (c) is towards interference or disturbance affecting communities. The focus of the assessment is towards weighing up the likelihood of community or social activities (as in section 237(a)) or amenity (as with section 237(c)) being impacted upon by the carrying out of exploration activities. In short the focus of such an assessment is towards the possible impact of the future act on the native title holders. A form of tenure, albeit an indigenous tenure, is not of itself relevant to a section 237 inquiry. Simply pointing out that there are Aboriginal Land Trusts located near to a proposed tenement is unhelpful. Of itself such information does not assist in assessing the likelihood of interference or disturbance. Consequently the fact that the Yutpundji-Djindiwirritj Aboriginal Land Trust abuts the eastern boundary of ELA 23047 does not materially advance the contentions of the native title party. The Tribunal can draw no sensible conclusions when conducting a section 237 inquiry from that statement of fact. As a matter of commonsense it is most probably more likely that if there is such a form of tenure, indigenous persons will either reside on such land or visit it. However if that be the case then the native title party needs to adduce the necessary material. The Tribunal is not entitled to infer or speculate about what may or may not be the case merely because a parcel of land is of a particular tenure.
[17] Conversely, the submissions of the government party on the Kewulyi Aboriginal Land Trust have less merit. The native title party specifically refers to the community of Kewulyi located on the Trust, which community was the location of an “on country” hearing for another inquiry in November 2001.
Recorded or Registered Sites
[18] The native title party refers (OSC at para 75) to two areas or sites said to be of particular significance which, it is claimed, the grant of the exploration licence would be likely to interfere with. These are -
(a) Gunduburun (Mole Hill); and
(b) Rabur.
The native title party also contends (OSC at para 77) that there are ten sites recorded or registered by the AAPA which are located on the proposed tenement, but reference is only made to Kunduburun and Rabur.
[19] There are two issues that arise from the contentions of the native title party. First, the fact that an area or site is recorded or registered by the AAPA is not determinative of the issue of whether that area or site is of particular significance to native title holders in accordance with their traditions. Conversely no adverse inference can be drawn from the fact that an area or site has not been recorded or registered by the AAPA. In each case the Tribunal must proceed and make an assessment pursuant to section 237(b) on the basis of the material presented. Obviously if an area or site has been investigated by the AAPA it can be of assistance to the Tribunal, particularly with respect to issues of location and description, and also as indicating that native title holders have been proactive in accessing Territory laws to protect areas or sites. However in each case if a native title party submitted that a named area or site is of particular significance it should produce some primary evidence from a properly authorised native title holder who deposes or otherwise signifies to that fact. In the instance of the unnamed areas or sites located on the proposed tenement that have been the subject of recording or registering by the AAPA, it is not possible for the Tribunal to make a sensible assessment pursuant to section 237(b). There is no evidence in this inquiry whether these areas or sites are of particular significance to members of the claim group, or indeed any information about these sites other than the scant details provided by the AAPA. It is a condition precedent for the commencement of an assessment pursuant to section 237(b) that there be evidence of the location of a site, a description of the site and information on the particular sacredness of that site to members of the claim group. Obviously there are other issues that need to be dealt with (e.g. the authority of the person providing the evidence), but in this inquiry even these threshold issues have not been addressed with respect to the unnamed areas or sites.
[20] The second issue is the reference to Gunduburun at paragraph 75 of the native title party’s Contentions and to Kunduburun at paragraph 77. It is clear that Kunduburun (AAPA 5768-25) is located on the proposed tenement and has been recorded by the AAPA (it has a status of 10). Kunduburun is one of the abovementioned sites about which no evidence has been led on its alleged particular significance. Gunduburun, on the other hand, is a quite distinct site and is located west of the Kewulyi Aboriginal Land Trust and south of Mole Hill. This site is approximately 30 km south west of the western boundary of ELA 23047. The native title party has referred to extracts from both the Roper Valley (Kewulyi) Land Claim Report and the Mataranka Area Land Claim Report as highlighting why this is a site of particular significance. Leaving aside whether it is open to the Tribunal to make a finding of particular significance based solely on such Reports, and without the benefit of any direct evidence from a native title holder, there is no material before the Tribunal which would seriously suggest that this site would in any way be affected by the grant of the exploration licence. While the Tribunal is not restricted when making a section 237(b) assessment to areas or sites within a proposed tenement, nonetheless there must be some material indicating that an area or site falling outside the boundaries of an exploration licence will be directly affected by exploration activities. There is no such evidence in this inquiry.
[21] Finally, it would appear that Rabur is located within the boundaries of ELA 23047, being a site recorded by the AAPA (a status of 10) and described as a “billabong and the larger area between Cheon and Fizzer Creeks, Harts Range.” The only information provided about Rabur is the reference to paragraph 6.13.3 in the Mataranka Area Land Claim Report:
“Other major sites further north on the river in Country 12 are Gemo (totemic power Ngurluguyi, ‘Barramundi’), and Ngalkiwurranggan, ‘Nipper Lagoon’ (dreaming Junguj, ‘Black-headed Python’). At Hart’s Range the billabong called Rabur is associated with Turkey dreaming.”
It is not possible to conclude that Rabur is a site of particular significance on the basis of that one passing reference by Maurice J in the Mataranka Area Land Claim Report. The fact that it is associated with a particular dreaming of itself does not lead inevitably to the conclusion that it is a site of particular significance. Moreover it must be a site of such significance to the relevant native title holders. Again, it is certainly not clear that it is a site of particular significance to members of the claim group purely on the basis of this one passage and without any direct evidence from any relevant native title holder.
Previous Exploration Activity
[22] The area of the proposed tenement has been the subject of a number of exploration and mining grants by the Northern Territory dating back to 1971. Outlined below are details of previous mining and exploration tenements as supplied by the government party:
Authority to Prospect - AP: 2583, AP2612, AP2897
Exploration Licence – EL: 967, 1711, 2900, 2901, 3364, 3368, 4482, 4483, 6294, 6295
[23] Mapping prepared by the Department of Business, Industry and Resource Development indicates that previous granted tenements have incorporated, at various times, the entire area of ELA 23047. Company Reports prepared by previous grantees show that all previous exploration activity was in the nature of stream sediment sampling. This activity took place between 1982–1990. Mapping shows that stream sediment sampling has occurred over most of the subject area and in areas immediately adjacent to the proposed tenement. The most intensive exploration has apparently taken place in the western and south western portions, particularly in the vicinity of Cheon and Fizzer Creeks and the Roper River.
[24] “Existing Title Holder Map D” produced by the Department of Business, Industry and Resource Development illustrates, from a wider regional perspective, granted exploration and mining tenements as well as those exploration tenements which are proposed to be granted. Of relevance to this inquiry, the map highlights that EL 23047 is bordered in the north and west by EL 22480 and in the south central portion by EL 22339.
Nature of the Proposed Exploration Activity
[25] In the Application for the Grant of an Exploration Licence the grantee party supplied the following information on the proposed work program for the first year:
“The Exploration Licence Application targets insitu and transported heavy industrial minerals associated with extensive erosion of dolerite sills which have intruded at various stratigraphic intervals into the Upper Proterozoic Roper Group.
Work programs in tenure one will incorporate combinations of the following activities designed to further refine target area selection in preparation for intense year two exploration activities:
·Historic literature and analytical data review/compilation;
·Available Thematic Mapper digital data and open-file geophysical surveys; target area definition/refinement and data interpretation;
·Reconnaissance and follow-up pick and auger-based soil sampling with helicopter support as necessary;”
[26] In addition the grantee party indicated that the exploration program for subsequent years would be as follows:
“Year two activities will be largely dependent on positive results from the initial tenure’s exploration. Combinations of the following are likely to be undertaken:
·Extensive gridding, geological mapping and soil/auger/drill sampling;
·Comprehensive laboratory analysis of 2,000 samples;
·Trial low-impact extraction of target commodities;
·Resource estimation exercise in combination with existing hard rock resources held by the company;
·Marketing and preliminary feasibility studies.”
Expert Evidence Adduced by the native title party
[27] In addition to the Affidavit of Mr Rogers, the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy as well as the transcripts of evidence both gentlemen gave to Member Stuckey-Clarke in December 2001, and the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.
[28] These standard documents have been considered by various Tribunal Members in numerous Northern Territory expedited procedure objection inquiries. Most recently the relevance and utility of this generic material for specific inquiries was discussed by Member Williamson in Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, 5 August 2002 (“Anges Limmerick”). I respectfully adopt, for the purposes of this inquiry, Member Williamson’s comments and analysis at [23] – [29].
Land Claim Reports
[29] The native title party sought to rely on certain findings of Maurice and Olney JJ in their capacity as Aboriginal Land Commissioners in the Mataranka Area Land Claim Report and the Roper Valley (Kewulyi) Land Claim Report.
[30] I have read both of these Reports, and have previously considered their contents in other expedited procedure objection inquiries. There is a considerable amount of information in both Reports about the general significance of sacred sites and dreaming tracks and the respective roles of Mingirringgi, Junggayi and Dalnyin. The Reports are also of general interest in their discussion of the historical background to this region of the Northern Territory and the composition and relationship of persons within various descent groups. Accordingly I found both Reports of interest and utility in the conduct of this inquiry.
[31] Nonetheless, the Reports do not materially assist the native title party with respect to issues germane to section 237(b) – areas and sites of particular significance. While it is the case that both Commissioners provide a lucid and erudite analysis of Aboriginal customary law and the context for assessing the significance of sites, there is very little material in either Report on sites mentioned by the native title party. Basically it is limited to the fleeting reference by Maurice J to Rabur. The complete absence of any primary evidence of sites of alleged particular significance is not offset by material in either of the Reports.
[32] The discussion of foraging activities in both Reports is either generalised, scant or (in the case of the Mataranka Area Land Claim Report) dated. While Maurice J does set out in some detail the context in which foraging takes place, there is very little in either Report on actual foraging activities on the area of the proposed tenement. Moreover the area considered by Olney J fell totally outside the area of the proposed tenement, and the very large area considered by Maurice J only slightly overlaps the subject area. In any event, Maurice J presented his Report in 1988 having heard evidence from traditional owners in late 1986. Consequently evidence presented to him on foraging is now more than 15 years old and related to a claim covering land from Mataranka to Warloch Ponds (some 137 km) involving members of three language groups, 13 descent groups and five distinct areas of land. Having considered both Reports, I find that there is very little in either that is of much assistance to the Tribunal in assessing the likelihood of interference with contemporary community or social activities pursuant to section 237(a).
Legal Principles
[33] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
[34] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
Section 237(a) – Interference with the carrying on of community or social activities
[35] The native title party contended (OSC at para 67) that the community or social activities of the native title claim group include:
“a. Foraging [Kewulyi Land Claim Report [55], [62]]; Mataranka Land Claim Report [7.1.1]]. The manner in which foraging occurs, together with the importance of this activity is set out at [7.1.1] – [7.2.6] of the Mataranka Land Claim Report;
b. Hunting, fishing and gathering of bush tucker. Members of the native title claim group, and members of the communities at Badawarrka and other communities along the Roper River, fish and hunt in the licence area most days of the week, especially during the dry [affidavit of Kevin Rogers [5], [7], [8], [13], [14], [17]]. The Mataranka Land Claim Report provides some assistance in defining the context in which foraging (which includes hunting, fishing and gathering of bush tucker) takes place [see [7.1.1] – [7.2.6]];
c. Collection of bush medicines [affidavit of Kevin Rogers [8]];
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 [Mataranka Land Claim Report [7.2.3], [7.2.5]];
e. Quiet enjoyment and camping [affidavit of Kevin Rogers [17]].”
[36] While I have previously dealt with the two Land Claim Reports, one aspect of the native title party’s contentions requires some specific comment. Reliance is placed on findings in regard to foraging, by Olney J at paragraphs 55 and 62 of the Roper Valley (Kewulyi) Land Claim Report.
[37] At paragraph 55 His Honour says: “Members of the Kewulyi group asserted in evidence the right in accordance with Aboriginal tradition, of members of the group to hunt and forage over Kewulyi country. There is no reason to doubt the validity of such a claim which was not challenged and which is entirely consistent with well known Aboriginal traditional rights throughout the Northern Territory.” It will be noted that the issue before His Honour was the right or entitlement to forage. This passage does not deal with actual foraging, its nature, its incidence and the specific persons or groups taking part. Nor is there a finding of actual foraging on the proposed tenement. The statement of Olney J at paragraph 55 is of marginal relevance to this inquiry.
[38] At paragraph 62 His Honour says: “Members of the Gunduburun local descent group assert in accordance with Aboriginal tradition, the right to hunt and forage over Gunduburun country. Those claims have not been challenged and there is no reason to doubt their validity.” Leaving issues of the boundaries of Gunduburun country vis-à-vis the proposed tenement, it will be noted that again His Honour is dealing with traditional rights to forage in accordance with Aboriginal tradition. His Honour makes no findings of actual foraging or of the details of such foraging. Accordingly this finding of Olney J is also of marginal assistance in making an assessment pursuant to section 237(a).
[39] The government party made these submissions on the foraging findings of Olney J (GPCR at para 53) with which I agree: “The Roper Valley Land Claim Report made no findings as to the exercise of any alleged rights to forage and the evidence of the existence of such a right was not subject to scrutiny as part of the claim process in those proceedings. (This was conceded by the Objectors at paragraph 48 b).”
[40] Mr Rogers provides a full and very helpful account of community and social activities on, and in the vicinity of ELA 23047. It would appear that he and other members of the claim group regularly frequent the proposed tenement to engage in fishing along the Roper River and associated creeks (see paragraph 7). Likewise he deposes to hunting and the collecting of bush medicines (at paragraph 8). He suggests that people access the subject land most days of the week for hunting or fishing and camping out, especially during the dry season (paragraph 17).
[41] It would appear that Mr Rogers main concerns are that exploration may prevent access to fishing, hunting and gathering (paragraph 6), that exploration may result in degradation of the land and waters (paragraph 9), including soil erosion (paragraph 11) and the destruction of plants used for food and medicine (paragraphs 13 and 14).
[42] It would appear that Mr Rogers (and presumably other members of the claim group) are not opposed to exploration per se, rather he says:
“(w)e want the mining company to tell us when they are going to be working there, but not only that, we want some sort of assurance from the mining company that they will not degrade the country, the land and the river systems in these areas where we go hunting and fishing … we don’t know this company … that’s why we want to meet them and have some assurances from them that the country is not going to be left with erosion or other damage.”
[43] The government party contended (GPCR at para 59) that while Mr Rogers deposed that residents of Buddawarka community engage in hunting and fishing, he did not actually depose that these residents were members of the relevant claim group. It was pointed out that Mr Rogers is not a resident of Buddawarka (his place of residence is Ngukurr), and it was suggested that without direct evidence identifying the residents of Buddawarka engaging in community or social activities, it was not open to infer that the residents were members of the native title claim group.
[44] It would appear that Buddawarka has (at least on 30 June 2001) a population of only 15.
[45] It is not clear from the evidence of Mr Rogers whether in fact some or all of the residents of Buddawarka are members of the claim group. Indeed a reading of the native title party’s Contentions leads to the conclusion that they are not members of the claim group. Thus at paragraph 67 b it is said (inter alia): “Members of the native title claim group, and members of the communities at Badawarrka and other communities along the Roper River, fish and hunt in the licence area … ”. The clear inference from this sentence is that the native title party draws a distinction between members of the claim group and members of the Buddawarka community.
[46] When engaging in an assessment pursuant to section 237(a) the task of the Tribunal is to consider the likelihood of interference with community or social activities of native title holders. It is not an assessment of the likelihood of interference with community or social activities of other members of the community. The fact that there is a community comprised of indigenous persons about whom no evidence is led other than their residence, does not provide a platform for an assessment pursuant to section 237(a). This is an administrative tribunal established by the Federal Parliament with a limited charter. It is not a tribunal or court charged with determining town planning and environmental matters. Rather its sole purpose when carrying out an expedited procedure objection inquiry is to determine the likelihood of interference or disturbance within section 237. The key to understanding this section is to appreciate that the future act provisions are designed to provide various procedural rights to registered native title claimants, and through them, other native title holders. The fact that there is evidence of a community of (unspecified) persons and that these persons engage in community and social activities on a proposed tenement is not relevant for the Tribunal when conducting a section 237(a) assessment. Accordingly, I am not satisfied that the activities of the residents of Buddawarka are necessarily germane to the assessment being undertaken.
[47] The leading decision on the proper interpretation of section 237(a) is Smith v Western Australia (2001) 108 FCR 442. French J explained (at 450) that the inquiry by the Tribunal into whether a proposed future act attracts the expedited procedure requires a predictive assessment of the effects of the future act which is not confined to a consideration of the legal rights conferred by the future act. Moreover the future act is “likely to interfere” with the relevant interests if it would involve a real chance or risk of interference.
[48] His Honour also explained that the concept of interference involves an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. Such interference “must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.”
[49] French J also said that the evaluation is contextual, and the Tribunal is entitled to “have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial.” It was legitimate, in this regard, for the Tribunal to have regard to “constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation.”
[50] In assessing the likelihood of the grant of ELA 23047 interfering directly with the carrying on of the community or social activities of native title holders, I have taken into account the following factors:
(a) there are no Aboriginal communities located within the proposed tenement;
(b) while some (or all) of the residents of Buddawarka many engage in hunting, fishing and foraging on the proposed tenement, no evidence has been led as to whether these persons are native title holders;
(c) while Mr Rogers does depose to the area of the proposed tenement being utilised on a regular and fairly intensive basis for community and social activities, there are some difficulties with his evidence, namely:
(i) it is not clear how many native title holders engage in such activities. Mr Rogers constantly uses the term “we” throughout his Affidavit, yet there is no explanation of how many persons engage in such activities;
(ii) it is not clear which members of the claim group engage in these activities;
(iii) no specific evidence has been led on these activities other than in a very generalised fashion. For example, Mr Rogers does not depose as to when he last visited the proposed tenement, or how many times he has engaged in such activities over the past few months or calendar year; and
(iv) there is no differentiation by Mr Rogers between the community and social activities of members of the claim group and other indigenous persons. As such when trying to ascertain to what extent members of the claim group may be impacted upon by the granting of the exploration licence, difficulties are experienced in attempting to determine just how important the area of the proposed tenement is, to the relevant native title holders;
(d) the regulatory regime governing mining exploration in the Northern Territory has been specifically drafted to ensure that the activities of explorers do not substantially impact, at least as far as is practical, on the community or social activities of native title holders. In a number of previous expedited procedure objection inquiries I have referred to these provisions, however for present purposes reference can be made to certain conditions imposed on grantees pursuant to section 24A of the Mining Act. Having regard to the concern expressed by Mr Rogers about possible interference with hunting, fishing and gathering, the disturbance of the soil and flora, possible pollution of watercourses and the need for consultation, I set out Conditions 1, 2 and 18:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular, by ameliorating:
(a) any interference directly with the carrying on of community or social activities of registered native title claimants or holders; or
(b) any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out its activities in such a way as to minimise disturbance to the environment of the licence area, in particular, by minimising:
(a) interference with the use of the land by other persons;
(b) the disturbance of flora, fauna and other natural resources;
(c) pollution, including soil, water and atmospheric pollution;
(d) the incidence and effects of soil erosion.
18. (a) The Licensee shall, prior to the commencement of exploration activities other than reconnaissance, convene a meeting on the licence area (or the nearest convenient locality) with registered native title claimants or holders to explain the exploration activities. The Licensee may also invite the relevant pastoral lessee(s) or landholders to this meeting.
(b)Notice of the meeting shall be by letter and shall be posted to the registered native title claimants or holders and representative body not less than 17 days before the meeting and shall nominate the date, time and place of the meeting.
(c) The Licensee must have regard to representations made to it at the meeting regarding any aspect of the exploration activities which raises concerns. These representations may deal with the avoidance access procedures of particular areas of land within the licence area.”
There are other provisions in force in the Northern Territory which I have also previously outlined in other expedited procedure objection inquiries, however, the cumulative effect of the various provisions in the Mining Act and other enactments is such that it is possible to infer that there is a comprehensive and well integrated legal regime which has been specifically drafted to prevent (so far as is practicable) interference to community or social activities by explorers. While this regime does mean that in each case the Tribunal would find that there is not a real risk or chance of interference with such activities, nonetheless the existence of this regime is an important factor to be considered when making a predictive risk assessment – see also Harry Lansen for the Alawa People/Biddlecombe Pty Ltd/Northern Territory DO01/113, unreported, Member Stuckey-Clarke, 2 August 2002 at [20] – [22] and Anges Limmerick at [49] – [50];
(e) the Tribunal is entitled to presume that the grantee party will act lawfully in exercising rights given under the exploration licence – see Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Deputy President Franklyn;
(f) despite evidence presented to the Tribunal that extensive stream sediment sampling has been carried out throughout most areas of the proposed tenement over the past 20 years, the native title party has neither suggested or presented any evidence that such activity has negatively impacted on the community and social activities of the native title party; and
(g) the proposed tenement is made up substantially of land and waters contained within five pastoral leases. As French J highlighted in Smith v Western Australia the Tribunal is entitled to take into account constraints imposed on community and social activities by third parties. The licensees of those various leases, together with their agents and employees, have a right, pursuant to the terms of the leases and the relevant laws, to carry out certain activities which in turn would have the potential to impact on hunting, fishing and foraging activities. To the extent that such rights are exercised, they prevail over any native title rights and interests – s 44H and per Toohey J in Wik Peoples v Queensland (1996) 187 CLR 1 at 133. Consequently I have taken into account that the community and social activities of native title holders on the proposed tenement are already subject to the lawful activities of the lessees of Perpetual Pastoral Leases 1099, 1159, 1160, 1161 and 1162.
[51] In conclusion, while I accept that community and social activities are carried on by native title holders on the proposed tenement, I am not satisfied on the basis of the evidence and materials before the Tribunal, and having regard to the factors outlined above, that there is a real chance or risk that the grant of ELA 23047 would be likely to result in direct interference within the meaning of section 237(a).
Section 237(b) – Areas or sites of particular significance
[52] As previously noted there is no primary evidence before the Tribunal identifying any area or site which is suggested to be of particular significance within the meaning of section 237(b). It is a condition precedent for an assessment pursuant to this paragraph that the Tribunal be presented with evidence identifying a site and explaining its particular sacredness. Mr Rogers makes no such assertion about any location in his Affidavit.
[53] Whether it is possible to cure such an omission by reliance on secondary material (such as Land Claim Reports) is problematic. In any event, the cursory references to one site in one of the Land Claim Reports previously discussed is manifestly inadequate to found a contention that the particular site mentioned is of particular significance.
[54] In addition the fact that an area or site has been recorded or registered by the AAPA does not result in an automatic finding that such an area or site is of particular significance. The Tribunal must be presented with evidence of why an area or site is of more than ordinary significance to the relevant native title holders. The act of registration, let alone the mere fact of recording, by the AAPA while potentially of assistance to the Tribunal in no way relieves a native title party from the essential task of addressing section 237(b) by the submission of relevant evidence.
[55] In this inquiry no material has been adduced demonstrating that there are any areas or sites on or in reasonable proximity to the proposed tenement which are of particular significance to native title holders. Absent such evidence, there is no basis for conducting a predictive risk assessment pursuant to section 237(b).
Section 237(c) – Major disturbance to land or waters
[56] Mr Rogers outlines at some length his concerns about possible disturbance to the land and waters of the proposed tenement by the grantee party. No doubt these concerns are genuine and deeply felt. However, when undertaking an assessment pursuant to section 237(c) the Tribunal has to take into account a range of considerations, and while the concerns of the native title party are a legitimate consideration, they are in no way conclusive.
[57] As previously highlighted the proposed tenement has been the subject of numerous exploration licences over a long period of time. In particular the land and waters have been subjected to fairly extensive stream sediment sampling. Despite this history of the intersection of the subject area with exploration activities, no material has been presented to suggest that this activity has resulted in any major disturbance to the environment or deleteriously impacted on native title holders.
[58] The evidence presented suggests that this area is used extensively by various traditional owners (not limited to members of the claim group) for hunting, fishing and foraging. Indeed Mr Rogers deposes that at least in the dry season the area is accessed most days of the week and “there is always someone out hunting or fishing in this country.” It is open to infer that whatever may have been the impact of previous exploration activity, it has apparently had no appreciable and deleterious impact on traditional activities.
[59] There is also no evidence that the subject area is environmentally or geologically sensitive such that it is open to find that exploration would be more likely to result in major disturbance. While the native title party drew the Tribunal’s attention (OSC at para 113) to the fact that the Roper River runs through the proposed tenement and it contains bush plants that are used for bush medicine these matters of themselves do not lead to a conclusion that the proposed tenement contains sensitive areas of the type described. The mere fact that an area has a river or series of creeks flowing through it does not mean that it is environmentally sensitive. The existence of certain watercourses could in certain circumstances have that characteristic, but the facts of this matter do not demonstrate anything other than the bald fact that the proposed tenement has numerous watercourses.
[60] A further factor which I have considered is the absence of any communities situated on the proposed tenement. The nearest community outside the subject area would appear to be Buddawarka, and leaving aside the absence of any evidence about native title holders residing there, it should be noted that it is located approximately 5 km from the eastern boundary. There is no evidence before the Tribunal which seriously raises the issue that this particular community would be directly affected by exploration activities.
[61] Despite the articulation of various concerns, it would appear that Mr Rogers is not opposed to exploration activities per se. Clearly Mr Rogers wants the grantee party to engage in appropriate discussions prior to the commencement of exploration. He points out that while some mining companies are ‘good” the native title claim group has not previously had dealings with Exploration & Resource Development Pty Ltd and certain assurances regarding erosion and other environmental issues will be sought.
[62] The understandable, and reasonable, desire expressed by Mr Rogers for a meeting to exchange views and information and to formalise a proper relationship with the grantee party can be achieved by the compulsory on site consultation (Condition 18 of the “Second Schedule” Conditions made pursuant to section 24A of the Mining Act) between the grantee party and registered native title claimants.
[63] I have also taken into account the regulatory regime governing exploration activities in the Northern Territory. I adopt for the purposes of this inquiry my analysis of this regime set out in Moses Silver and more recently in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002. In particular I have considered the following provisions in this inquiry: sections 24(j), 24A (in particular Conditions 2, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 20), 166(1A) (1B) and (2) of the Mining Act. Parts 3 and 4 of the Mining Management Act 2001 ensure that before exploration involving substantial disturbance is commenced an Authorisation must be obtained, and this Authorisation may impose conditions requiring the applicant grantee to minimise disturbance (see ss 35-41).
[64] In summary, the mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various regulatory provisions are designed to ensure that impacts to the environment and to native title rights and interests are minimised as far as is practicable. While this comprehensive regime is advanced and proactive, nonetheless it does not result in any automatic assessment that major disturbance is unlikely to occur. The Tribunal is required in any expedited procedure objection inquiry to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant, and has been raised) and such other issues as may be pertinent: see also Anges Limmerick at [79].
[65] Finally, I note the grantee party’s submission (Gr1 at [9]) that should the exploration licence be granted that it will comply with the relevant Northern Territory and Commonwealth legislation as well as the conditions of the exploration licence itself.
[66] I am satisfied on the basis of the evidence before the Tribunal, the absence of any evidence of disturbance from previous exploration activity, the nature of the regulatory regime governing mining exploration in the Northern Territory and the absence of any material suggesting that the subject area has particular environmental or geological features that call for special consideration, that it is not likely that the grant of ELA 23047 would result in major disturbance within the meaning of section 237(c).
Determination
The determination of the Tribunal is that the grant of Exploration Licence 23047 to Exploration & Resource Development Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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