Timothy Glen Summons/Victoria/ Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People - [2003] NNTTA 66

NATIONAL NATIVE TITLE TRIBUNAL

Timothy Glen Summons/Victoria/ Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, [2003] NNTTA 66 (16 April 2003)

Application No: VF02/2

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

- and -

IN THE MATTER of an inquiry into a Future Act Determination Application

Timothy Glen Summons (Applicant/grantee party)

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State of Victoria (Government party)

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Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People (VC97/4) (native title party)

FUTURE ACT DETERMINATION

Tribunal: Hon C J Sumner, Deputy President
Place: Melbourne

Date: 16 April 2003

Catchwords: Native title – future act - application for determination in relation to an extractive industry search permit – ‘native title party’ is all persons comprising the registered native title claimant – generally no right of separate representation for individual registered claimants – application for a stay of proceedings refused – request of one faction to give restricted evidence refused – disputes and factions within native title party – native title party not legally represented – approach to evidence where native title party unrepresented – regime for grant of extractive industry search permit in Victoria – search activities have little effect on matters in s 39(1)(a) of Native Title Act 1993 (Cth) – no sites of particular significance – comprehensive Aboriginal site protection regime in Victoria – minor economic benefit – public interest in searching for commercial quantities of stone – determination that the act may be done with a condition – claimant group dysfunctional – dispute within claimant group has adverse effect on right to negotiate

Legislation:Native Title Act 1993 (Cth) ss 24MD(3), 29(2)(c), 31(1)(b), 35(a), 37, 38, 39, 41A(1), 61, 109(1), 109(3), 139, 146(b), 150, 151, 152, 154(3), 154(4), 237(b), 253
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 21B, 21C, 21D, 21E
Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) ss 10(a), 21(1), 22(1)
Extractive Industry Development Act 1995 (Vic) ss 3, 10(c), 10(d), 11, 14(d), 15(1), 15(2), 19
National Parks Act 1975 (Vic), s 40, Schedule Three, Part 14

Cases:Adnyamathanha People v State of South Australia [1999] FCA 402
Carol Dawn Bissett and Others/Mineral Deposits (Operations) Pty Limited/New South Wales, NNTT NF01/1, John Sosso, 24 September 2001
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Ben Ward and Others/Swiftel Ltd/Northern Territory, NNTT DO01/83, John Sosso, 12 June 2002
Evans v Western Australia (1997) 77 FCR 193
Minister for Mines (WA) v Evans & Others (1998) 163 FLR 274
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001
Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, John Sosso, 1 February 2002
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, Hon C J Sumner, 24 February 2000
ReKoara People (1996) 132 FLR 73
Victorian Gold Mines NL v Victoria and others (2002) 170 FLR 1
Western Australia v Thomas (1996) 133 FLR 124
Western Australia/Richard Guy Evans & Others/Anaconda Nickel Ltd and Others, NNTT WF98/267, WF98/268 and WF98/270, Hon C J Sumner, 20 August 1999
WMC Resources & Anor v Evans (1999) 163 FLR 333

Words and Phrases: ‘native title party’
‘registered native title claimant’

Hearing Date: 2 April 2003

Representative of the
grantee party: Mr Ian Baillie, Omya Australia Pty Ltd

Counsel for the
Government party: Mr Tim Jacobs

Solicitor for the
Government party: Mr Rupert Burns, Victorian Government Solicitor

Representative of the Mr Albert Mullett, Gunai faction
native title party Ms Pauline Mullett, Kurnai faction

REASONS FOR FUTURE ACT DETERMINATION

Background

On 6 January 1993, Timothy Glen Summons (‘the grantee party’) applied for Extractive Industry Search Permit 158 to search for stone (‘the search permit’/’ESP 158’) in accordance with the Extractive Industries Act 1966 (Vic). That Act has since been repealed and replaced by the Extractive Industry Development Act 1995 (Vic) (‘the EID Act’). The application for the search permit will now be dealt with under the provisions of the EID Act and may be granted by the responsible Minister pursuant to s 11 which provides for the grant of a search permit on Crown land.
On 12 December 2001, the State of Victoria (‘the Government party’) gave notice that it was considering granting the search permit in accordance with s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘the NTA’). The s 29 notice specified that the search permit relates to an area of 3400 hectares. The location description detailed the top edge of the area being approximately 6 kilometres North East of Moondarra and the lower edge being approximately 13 kilometres South East of Moondarra. It falls within the Baw Baw and La Trobe Shires.
The permit area extends in a north/south direction for some 14 kilometres and is variously 2-4 kilometres wide. The underlying tenure of ESP 158 is part reserved forest, part reserved for various public purposes under the Crown Land Reserves Act 1978 (Vic), part regional park under the National Parks Act 1975 (Vic), part gravel resource and part unreserved Crown land. Most of the permit area comprises Boola State Forest. In the southern portion is Tyers Park, a regional park, proclaimed in 1986 and listed in Schedule Three, Part 14 of the National Parks Act 1975 (Vic).
The grantee party has entered into an agreement with Omya Australia Pty Ltd (‘Omya’) whereby the grantee party has, as stated in the affidavit of Ian Baillie, Group Geologist for Omya Australia Pty Ltd, given Omya:
‘7. … the right to sample and test the grade and extent of the limestone resource concept and, subject to regulatory approvals, commercially exploit the limestone resource if deemed feasible by Omya.
8. Omya is the operator of the exploration project and is responsible for obtaining the necessary consents’
Timothy Glen Summons as the person who applied for the search permit is ‘the grantee party’ (s 29(2)(c) NTA). However, Mr Ian Baillie and Omya, pursuant to its agreement with Mr Summons, have been responsible for managing the search permit application on the grantee party’s behalf. For convenience, reference to the grantee party in these reasons includes both Mr Summons and Omya.
At the time the s 29 notice was given Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose and Robert James Farnham were the joint registered native title claimant over an area which includes the area of the search permit. They are still the registered native title claimant and are ‘the native title party’ in these proceedings (Native title determination application VG6007/98 (Tribunal Claim No VC97/4), made and originally registered on 4 April 1997 and amended and accepted for registration under the amended Act on 21 April 1999).
At the preliminary conference held on 11 November 2002, it was clear that there remained a continuing division within the claimant group. This division had been apparent throughout the proceedings of the last future act inquiry in Victoria in 2002 into the proposed grant of a mining licence to Victorian Gold Mines NL (Victorian Gold Mines NL v Victoria and others (2002) 170 FLR 1 (‘Victorian Gold Mines’)). The claim group is split into two factions. Of the persons who comprise the registered native title claimant, Graham (Bootsie) Thorpe and Robert James Farnham are in the Gunai faction and Lindsay Gordon Mobourne and Regina Lillian Rose are in the Kurnai faction.
The proposed future act is the grant of the search permit for a term of 2 years which would allow the grantee party to search for stone and cannot validly be done unless the right to negotiate provisions of the Act are complied with (Subdivision P of Division 3 of Part 2 (ss 25-44)). The activities permitted under the grant are essentially exploration and the grantee party wishes to determine whether extraction of stone is commercially viable. Although the grant is proposed to cover an area of 3,400 hectares, the grantee party is currently only proposing to conduct drilling activities in a 10 hectare area of Tyers Park (‘the search area’).

The question of the nature and extent of the future act was raised during the proceedings. The Kurnai faction submitted that the Government party should reduce the area of the future act to the 10 hectare area within Tyers Park. There was an initial suggestion from the Government party that a work plan for drilling outside the 10 hectare area would contribute a separate future act. This was subsequently clarified and it is accepted by the Government party that the future act is the grant of ESP 158 over the whole 3,400 hectare area and that a work plan for exploratory drilling outside the immediate search area does not constitute a new future act.
Under the search permit the grantee party will not be conducting an extractive industry as it will not be extracting or removing stone for the primary purpose of sale or commercial use or using the stone in construction building, road or manufacturing work (s 3 EID Act). The Government and grantee parties acknowledge that the grant of a work authority under the EID Act for an extractive industry (limestone quarrying in this case) would constitute a further future act subject to the right to negotiate provisions of the Act.
On 21 October 2002, being a period of more than 6 months after the s 29 notice was given, the grantee party made an application to the Tribunal under s 35 of the Act for a future act determination (‘the s 35 application’).
Section 31 of the Act imposes an obligation on all negotiation parties (i.e. the Government party, the grantee party and the native title party) to negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the act with or without conditions. If an agreement of the kind mentioned in paragraph s 31(1)(b) of the Act has been made, the Tribunal must not make a determination (s 37). A copy of the agreement must be given to the Tribunal (s 41A(1)). No agreement between the negotiation parties to the grant of the search permit has been made and given to the Tribunal and the Tribunal must conduct an inquiry (s 139) and make a determination (s 38).
At the preliminary conference held on 11 November 2002 the Kurnai faction only asserted that the Government party had not negotiated in good faith with the native title party about the proposed grant of ESP 158 as required by s 31(1)(b) of the Act. The Tribunal gave directions for the provision of contentions and documentary evidence from the parties to enable it to decide the issue and a hearing (if necessary) was scheduled for the week commencing 16 December 2002. Both the Kurnai faction and Government party submitted contentions and documents. At the request of the Government party made on 13 November 2002, I directed the holding of a conference under s 150 of the Act to help resolve the issue of negotiation in good faith which resulted in the Kurnai faction on 16 December 2002 withdrawing their challenge. No other jurisdictional issues were raised and I find that the Tribunal has jurisdiction to conduct this inquiry and make a determination (Walley v Western Australia (1996) 67 FCR 366).

Representation of the claimant group

Throughout this inquiry Ms Pauline Mullett was the spokesperson for the Kurnai faction and Mr Albert Mullett, Chairman of the Gunai Council of Elders, was the spokesperson for the Gunai faction. Both are members of the claim group and although not persons comprising the registered native title claimant I am satisfied that they had the authority to speak for their respective factions in these proceedings.
The Native Title Representative Body under the Act, Mirimbiak Nations Aboriginal Corporation (‘Mirimbiak’), remains on the Register of Native Title Claims as the legal representative of the applicant. Mr Paul Simmons, Commercial Solicitor, remains as the principal contact at Mirimbiak for future act issues relating to the Gunai/Kurnai claim. Prior to the grantee party lodging the s 35 application Mirimbiak had assisted in the preliminary negotiations about an agreement between Omya and the Gunai/Kurnai native title group. In a letter to the Tribunal, dated 6 November 2002, Mr Simmons provided information relating to Mirimbiak’s involvement in negotiations to date and concluded with the following paragraphs:
‘On 16 October 2002, I sent an email to Mr Ian Baillie stating that Mirimbiak finds itself in a position where it has no instructions from the Gunai/Kurnai Native Title Group regarding the progress or finalisation of his proposal.
I am happy to assist the Gunai/Kurnai Native Title Group in drafting any agreements should all parties reach agreement during the process. Should you have any further queries, please do not hesitate to contact me on 03 9321 5300.’

This position was confirmed by Mr Simmons at the preliminary conference on 11 November 2002 and thereafter Mirimbiak did not participate in the inquiry or make any submissions. At his request Mirimbiak received all submissions, contentions, documentary evidence and correspondence related to the proceedings. He was also kept apprised of events by the Case Manager, Ms Lisa Jowett.

It was also agreed at the first preliminary conference that due to the lack of legal representation and the split in the group, all material relevant to the proceedings should be forwarded to all four persons comprising the registered native title claimant. In addition Mr Albert Mullett was also to receive all relevant material. This process was confirmed to parties in a letter from the Tribunal dated 13 November 2002 and followed throughout the duration of the inquiry. Ms Pauline Mullett received her material from Mrs Regina Rose.
In the Victorian Gold Mines matter I stated the view of the Tribunal on the issue of the separate representation of individual registered native title claimants (or more accurately of persons comprising the registered native title claimant) in a right to negotiate inquiry:
‘[9] The Tribunal takes the view that a native title party in any right to negotiate inquiry comprises all the registered native title claimants acting collectively. Each individual registered native title claimant is not a separate native title party (Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, Hon C J Sumner, 24 February 2000 at (5-11) and Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001 at [19]-[20]. It follows that each individual registered native title claimant is not entitled to be separately represented in an inquiry. I made this ruling at the Preliminary Conference in the matter of VF02/1 and it was confirmed by letter from the Tribunal dated 5 March 2002 to each of the registered native title claimants.’
At the listing hearing on 10 February 2003, Mr Sean Sexton, Solicitor appeared purporting to represent the Gunai faction only. I explained the Tribunal’s previous rulings on this point to Mr Sexton. The Government party agreed with the Tribunal and sought single representation of the native title party. The possibility of Mr Sexton representing the whole of the claimant group for the purposes of this inquiry only was raised by the Government party, but Ms Mullett for the Kurnai group would not agree to the proposal. For the purposes of the preliminary proceedings I allowed Mr Sexton to participate in this matter representing his two clients Graham (Bootsie) Thorpe and Robert James Farnham.
At the adjourned listing hearing on 20 February 2003, I gave directions for the Government party to make a submission on the issue of whether individual registered native title claimants are entitled to separate representation in future act inquiries. The Government party relied on the cases cited above in Victorian Gold Mines and also referred to Ben Ward and Others/Swiftel Ltd/Northern Territory, NNTT DO01/83, John Sosso, 12 June 2002. In Ward, Member Sosso accepted the general principle enunciated in the other cases cited above but with a qualification that the requirements of procedural fairness may in some cases mean that separate representation of individuals comprising the registered native title claimant is permitted. The Government party submitted that it is generally not open to allow separate representation to individually named claimants and that any exception to this general principle should be confined to circumstances where the issue of legal representation is in dispute or there are other unusual circumstances requiring the Tribunal, for reasons of procedural fairness, to allow separate representation.
Ms Mullett responded by again taking issue with the Gunai/Kurnai claim as it exists and reiterated her view that there is no Gunai tribe in Victoria. Because of this situation she said that it was pointless to continue to treat the claim as representing one group and separate representation should be permitted. Because of lack of resources Mr Sexton did not analyse the statutory provisions but referred to the current Federal Court mediation where separate representation is permitted. He said that the Federal Court’s mediation could be undermined if the Tribunal decided that separate representation was not permitted.
On 12 March 2003 the parties were informed that I accepted the Government party’s submission and that the question of who constitutes a ‘native title party’ in right to negotiate inquiries and entitled to legal or other representation in them is not governed by what the Federal Court may do in claim proceedings. The Tribunal’s position on this issue is based on its analysis of the right to negotiate provisions of the Act as well as s 61 and the s 253 definition of registered native title claimant.
Although confirming this to be the position at law I decided, in the special circumstances of this case and as a matter of discretion, to give leave for a representative of each faction to this claim to appear and assist the Tribunal. This was the approach adopted in the Victorian Gold Mines matter when I permitted Mirimbiak to appear on the same basis. As an appearance for individual registered native title claimants was not permitted as of right under s 152 of the Act it would have been possible to withdraw leave to appear if a representative was not in fact assisting the Tribunal in a responsible and appropriate way. For reasons which I expand on below I do not find the split in the claim group and the problems with its representation as satisfactory but in the circumstances decided that a pragmatic approach should be adopted thus enabling the factions to put their individual points of view.
On 6 March 2003, Mr Sexton wrote to the Tribunal withdrawing his participation as a representative for the Gunai faction and from that point, the Tribunal ceased to involve him in the matter, other than to notify him of the date and schedule for the hearing. Neither faction was legally represented in the inquiry.

Preliminary Proceedings

As I had done in the Victorian Gold Mines matter, at the listing hearing on 10 February 2003 I:

explained the nature of the inquiry and the factors in s 39 of the NTA which the Tribunal must take into account in making a determination;
explained that the hearing was not about whether the claimants are entitled to a determination of native title claim but about the effect of the grant of the search permit on the enjoyment of registered native title rights and interests and other matters referred to in s 39 of the Act and explained those factors;

said the Tribunal did not have power to make an award of compensation but the Act permits a condition for an amount to be paid into trust pending a final determination of compensation;
said that the hearing would not be about any dispute within the claimant group and that any conditions would relate to the claim group as a whole;
said that the contentions of the Kurnai faction were general statements which did not for the most part address the issues in s 39 of the Act; and
reiterated the Tribunal’s position with regard to separate representation and expressed my grave concern and disappointment that the split in the claimant group had not yet been resolved, drawing attention to the difficulties posed for the Tribunal by the irreconcilable factions.

Mr Sexton submitted that the hearing should not proceed because of the current Federal Court mediation to attempt to resolve the disputed issues in the claim group and because of the lack of resources available to the native title party to prepare the matter. He foreshadowed an application to the Federal Court to stay the conduct of the inquiry. He said that the grant of ESP 158 should be the subject of further mediation.
I directed that the hearing should proceed in the week commencing 24 February 2003 as originally programmed by directions made at the preliminary conference on 11 November 2002. The Tribunal has repeatedly said that the NTA requires future act determinations to be made in as timely a manner as possible. Provided the Government and grantee parties have negotiated in good faith any negotiation party can make a future act determination application six months after the date of the s 29 notice (s 35(a) NTA). The Tribunal is then required to take all reasonable steps to make a determination as soon as practicable and report to the Minister if it does not do so within six months of the application being made (ss 36(1) and (3) NTA). On this basis the Tribunal considered that it should use its best endeavours to complete this inquiry by 21 April 2003.
On the question of the lack of resources I have no doubt from my experience in this and the Victorian Gold Mines matter that the difficulties in obtaining resources is a consequence of the split in the claimant group. Mirimbiak which is the body charged under the Act with assisting native title parties in right to negotiate inquiries have attempted to assist the native title party but been unable to do so because of the attitude of the Kurnai faction which will not cooperate with the Gunai faction in any way that it says gives any legitimacy to the Gunai faction as part of the claimant group. This stance was demonstrated in Victorian Gold Mines (paras [11] and [14]) by the refusal of the Kurnai faction to join in being represented by an independent barrister engaged by Mirimbiak and to sign the same s 31 agreement as the Gunai faction even though there was agreement between the parties.
With respect to Mr Sexton’s request for further mediation, on 10 February 2003 I directed that a conference under s 150 of the Act should be convened to attempt to resolve the issues relating to the inquiry. Although a conference was held no agreement could be reached.
At an adjourned listing hearing on 20 February 2003, at the request of Mr Sexton and with the agreement of Mr Baillie on the basis that the determination would be made by 21 April 2003, I adjourned the hearing until the week commencing 24 March 2003 to enable the native title party more time to prepare and to enable the s 150 conference to be convened.
Subsequently, Mr Sexton did not proceed with his application for a stay and withdrew his application to appear for the Gunai faction.

Contentions and documentary evidence

The Government party provided a Statement of Contentions and affidavits with accompanying documents from a number of Government officials dealing with various aspects of the application for ESP 158. Ms Mullett was given leave to cross-examine the following witnesses on their affidavits:

James Alexander Stewart Simmons, Manager-Heritage Policy and Information, Heritage Services Branch of Aboriginal Affairs Victoria (‘AAV’), Department of Victorian Communities;
Ronald James Kelly, Native Title Coordinator (Gippsland Region), Land Victoria, Department of Natural Resources and Environment;
Peter Michael Merritt, Senior Client Services Officer, Gippsland Office of Minerals and Extractive Tenements Group, a business unit of the Mineral and Petroleum Division within the Department of Primary Industries (formerly the Department of Natural Resources and Environment); and
Mark David Riley, Senior Policy Officer, Protected Area Establishment and Policy Branch of Parks, Flora and Fauna, a Division of the Department of Sustainability and Environment.

The grantee party provided a Statement of Contentions and an affidavit and accompanying documents from Ian David Baillie, Geologist, Omya Australia Pty Ltd. The Kurnai faction provided a Statement of Contentions. No Statement of Contentions was provided by the Gunai faction. In making its determination the Tribunal has had regard to the various contentions and documentary evidence filed by the parties and the evidence and submissions given at the oral hearing and subsequent to it.

The hearing

For reasons similar to those given in the Victorian Gold Mines matter (para [11]) I decided that this was not a matter that could be determined on the papers (s 151 NTA). Given the lack of legal representation and split in the claimant group there was no option but to have an oral hearing and as far as possible give all members of the claimant group an opportunity to give evidence about the factors in s 39 of the Act.
The hearing was conducted on country on 2 April 2003 and included a visit to the site of the search permit for the purposes of Mr Baillie explaining Omya’s proposal and taking oral evidence from the native title party. The hearing commenced at Tyers, approximately 140 kilometres east of Melbourne and approximately 6.5 kilometres south of the search area in Tyers Park.
The location and schedule for the hearing was advertised, in accordance with Tribunal procedures, in the Lawlist section of ‘The Age’ newspaper. On 25 March 2003, a letter was written by the Tribunal and forwarded by Mirimbiak to all 125 members of the wider claimant group on Mirimbiak’s mailing list. The letter invited attendance at the hearing in order to present any evidence or submissions addressing the matters in s 39 of the Act. Other than those referred to below no members of the wider claim group attended either at the search area in the morning or at the remainder of the hearing held in Traralgon in the afternoon.
Parties met at 10.00am at the General Store in Tyers. In attendance, were the following people:

Gunai faction of the native title party – Ms Beryl Booth, Mr Graham (Bootsie) Thorpe, Mrs Margaret Donnelly and Mr Albert Mullett;
Kurnai faction of the native title party – Ms Pauline Mullett, Mrs Regina Rose, Ms Lynette Hayes and Mr Howard Mullett;
for the Government party – Mr Tim Jacobs (Counsel), Mr Rupert Burns (Victorian Government Solicitor’s Office), Ms Alda Achilingham (Department of Sustainability & Environment), Mr Peter Merritt (Minerals & Extractive Industries in the Department of Primary Industries) and Mr Mark Riley (Department of Sustainability & Environment); and
for the grantee party – Mr Ian Baillie (Omya Australia Pty Ltd)

After some procedural and introductory comments including a further explanation of those matters detailed in s 39 of the NTA, the inquiry proceeded to the search area. All of the above mentioned people walked out to the site of the proposed 10 hectare search area with the exception of Mrs Rose and Ms Hayes. I also inspected the balance of the permit area by car.
The hearing re-convened at 2.00 pm at the Century Inn in Traralgon. The Government party was joined at this time by Mr Stewart Simmons (Aboriginal Affairs Victoria) and Mr Ron Kelly (Department of Sustainability & Environment). Mr Albert Mullett was unable to attend the afternoon session and the remaining three representatives for the Gunai faction, Ms Booth, Mr Thorpe and Mrs Donnelly, departed before the proceedings concluded. No members of the Gunai faction were present during the examination of the Government party’s witnesses.
In this inquiry I did not consider it necessary to require the formality of sworn evidence from any of the witnesses (ss 109(1) and 109(3) NTA).

Restricted evidence request from the Kurnai faction

At the Traralgon hearing Ms Mullett sought to give evidence from the Kurnai faction confidentially and without the presence of the Gunai faction claimants. After hearing argument, I refused her request and the Kurnai faction then declined to provide further evidence. Ms Mullett said that her faction was not of the same origin as the Gunai faction and that they had no right according to traditional law and customs to information held by the Kurnai faction members who are the traditional owners of the claimed country. Ms Beryl Booth for the Gunai faction and Mrs Margaret Donnelly pointed out that only one claim was involved, whatever it was called because there was only one native title party.
The Government party submitted that what the Kurnai faction proposed was not permitted at law or alternatively that the request should not be agreed to. Section 154(3) of the Act permits the Tribunal on its own initiative or the application of ‘a party’ to direct that a hearing or part of a hearing be held in private. In determining this issue the Tribunal must have regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders (s 154(4)). Consistently with other parts of the right to negotiate provisions the section talks of ‘a party’ which includes a native title party. For the reasons given in the cases cited in the Victorian Gold Mines matter a native title party is a collective entity comprising all of the persons who comprise the registered native title claimant. I accept the Government party’s submission that a section of a party or individuals that make it up are not entitled to make an application for a private hearing under s 154(3) of the Act without the consent of the claim group as a whole.
Even if it was possible as a matter of law to grant Ms Mullett’s application I would not have done so. First, there are considerations of procedural fairness to the Gunai faction and how they could be accommodated if the Gunai faction were excluded from hearing the Kurnai faction’s evidence. The request is contrary to the normal rules of procedural fairness. Second, Ms Mullett provided no details of the traditional law and customs upon which the request was based except to say that the traditional law of the Kurnai elders is that information can only be passed to those authorised to receive it which does not include Gunai faction members. She referred generally to Aboriginal custom which prohibited Aboriginal people from one area receiving information about some one else’s country. I do not regard the generalised assertion as a sufficient basis for the direction sought by Ms Mullett.
Regrettably this request was just another example of the problems created by the split in the claimant group and the practical difficulties in properly conducting the inquiry.

The Tribunal’s approach to evidence

The Tribunal established the following principles in Western Australia v Thomas (1996) 133 FLR 124 (‘Waljen’) (at 154-163) which were followed in this inquiry:
‘(1)The Tribunal's determination must be based on logically probative evidence and by application of the law.
(2)The Act recognises the interests of the negotiation parties in the outcome of the inquiry and gives them various procedural rights, including a reasonable opportunity to present their case.
(3)There is no onus of proof as such but there is a common sense approach to evidence which in practical terms means that parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge. Ordinarily the parties have the primary responsibility for presenting evidence and, in general, if they fail to do so, they cannot complain if the Tribunal gives little or no weight to their contentions.
[see McDonald v Director-General of Social Security (1984) 1 FCR 354 (per Woodward J at 356-358); Ward v Western Australia (1996) 69 FCR 208, per Carr J at 215-217]
(4)Although the Tribunal may conduct its own inquiries and obtain evidence itself, it is not generally required to do so and, as a matter of general practice where parties are represented before the Tribunal, would not do so. In other words, the Tribunal is not required as a matter of general practice to make out a party's case for it where that party chooses not to produce relevant evidence.
(5)The Tribunal is able to suggest to the parties other evidence which might be obtained and the consequences of not doing so.
…’
I was mindful of the fact that the native title party was not legally represented. At the listing hearing and at the hearing at Tyers, Tyers Park and Traralgon I explained to the members of the claim group present the role of the Tribunal in a future act determination inquiry and the factors which I was required to take into account in s 39 of the Act. I did not regard it necessary to conduct my own inquiries but on country at Tyers Park I asked questions of the claimants who were present which were based on their registered native title rights to give them the opportunity to provide evidence.

The law

In making this determination, I have considered and applied those principles relating to future act determinations that have been extensively discussed in the following Federal Court and Tribunal decisions:

ReKoara People (1996) 132 FLR 73 (‘Koara 1’);
Evans v Western Australia (1997) 77 FCR 193 (‘Evans’). (Federal Court, RD Nicholson J - an appeal from the Tribunal determination in Koara 1;
Minister for Mines (WA) v Evans & Others (1998) 163 FLR 274 (‘Koara 2’) - Tribunal determination following the successful appeal in Evans;
Western Australia v Thomas (1996) 133 FLR 124 (‘Waljen’); and
WMC Resources & Anor v Evans (1999) 163 FLR 333.

Although concerned with the grant of mining leases under the Mining Act 1978 (WA) these general principles are applicable to this case.

The centrally relevant statutory provisions are ss 38 and 39 of the NTA.

‘38 Kinds of arbitral body determinations

(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a)    a determination that the act must not be done;
(b)    a determination that the act may be done;
(c)     a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
(1A)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:
(a)    is not reasonably capable of being determined when the determination is made; and
(b)    is not directly relevant to the doing of the act;
is to be the subject of further negotiations or to be determined in a specified manner.
Example:The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.

Matters to be determined by arbitration
(1B)If:
(a)    the manner specified is arbitration (other than by the arbitral body); and
(b)    the negotiation parties do not agree about the manner in which the arbitration is to take place;
the arbitral body must determine the matter at an appropriate time.
Profit‑sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a)    the amount of profits made; or
(b)    any income derived; or
(c)     any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

39 Criteria for making arbitral body determinations

(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)     any public interest in the doing of the act;
(f)     any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and
(b)    existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect

(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’

Of particular relevance to this matter is that since the 1998 amendments to the Act the Tribunal:

is limited in its inquiry to native title rights and interests which have been accepted for registration and placed on the Register of Native Title Claims;
is to assume for the purpose of the inquiry that the native title rights and interests which potentially could be affected are those set out in the Register of Native Title Claims; and
must consider evidence, which ordinarily will come from the native title parties, of how the future act including any rights exercised pursuant to any grant, will affect the registered native title rights and interests. This means that the Tribunal needs to consider how the native title rights and interests are being exercised or enjoyed in the vicinity of the search permit area and how the mining activities will affect them or the other matters referred to in s 39(1)(a) (Western Australia v Thomas (Waljen) (1996) 133 FLR 124 at 166-167 and WMC Resources & Anor v Evans (1999) 163 FLR 333 (at 337-341)).

The regulatory regime governing the grant of an Extractive Search Permit (ESP)

In summary, the Extractive Industries Development Act 1995 (Vic) provides for:

the grant of a search permit (an Extractive Search Permit (ESP)) which permits the grantee to search for stone on Crown land (s 11) (i.e. essentially to carry out exploration activities); and
the grant of a work authority to carry out an extractive industry (s 19). That is, for the extraction or removal of stone for the primary purpose of sale or commercial use or for use in construction, building, road or manufacturing work (i.e. carry out productive quarrying).)

An ESP is applied for and may be granted by the Minister for a period of two years (s 14(d)) with or without conditions (ss 11(1) and 11(5)). The Minister administering the Conservation, Forests and Land Act 1987 must consider and provide advice to the Minister on whether the grant should be made (s 11(4)).
Within 14 days of the application the Minister must give notice of the application to:

any person or body nominated by the Minister administering the Archaeological and Aboriginal Relics Preservation Act 1972; and
any person or body nominated by the Minister to whom a power has been delegated under s 21B of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (s 11(3)).

The holder of an ESP in exercising the powers under it to carry out surveys or other operations to search for stone (s 15(1)) must proceed in an expeditious manner without causing unnecessary damage and without interfering with the existing use of the land to a greater extent than is necessary (s 15(2)).
Standard Conditions are imposed which require an approved work plan incorporating a rehabilitation plan and provision of an appropriate rehabilitation bond where more than low impact exploration work is undertaken. The work plan is to provide the following information (affidavit of Peter Merrit para 19):

a general description of geological information;
a regional plan;
a site plan showing and describing the location of the proposed drill holes, topographical features, drainage patterns, water courses, vegetation features, soil information and access roads;
a description of the methods and plant to be used;
an environmental management plan;
a rehabilitation plan; and
other information that may be relevant to the application but not mentioned above.

Other Standard Conditions are imposed to minimise soil disturbance and vegetation removal, maintain water quality, limit noise, regulate the construction of tracks, prevent fires, prohibit camping, regulate the transportation of fuel and lubricants, provide for progressive and final rehabilitation and to regulate trenching and bulk sampling.
The Standard Conditions also provide that the holder of a search permit is not exempt from ss 21(1) and 22(1) of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) which respectively make it an offence to wilfully or negligently deface or damage or otherwise interfere with a relic; and require the discovery of a relic to be reported (in practice to Aboriginal Affairs Victoria (‘AAV’)). There is a condition that drilling must cease immediately upon the discovery of any Aboriginal cultural material and AAV notified immediately of it.
Sections 10(c) and 10(d) of the EID Act say an ESP cannot be granted over land:

that is an Aboriginal place, to the extent of any terms of a declaration of preservation in force under ss 21C, 21D or 21E of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); and
that is an archaeological area under the Archaeological and Aboriginal Relics Preservation Act 1972 or that contains relics registered under s 10(a) of that Act.

Special provisions apply to the grant of ESPs on parks under the National Parks Act 1975 (Vic) (‘NPA’) where the Minister responsible for that Act must grant consent to the granting of the ESP over a park (s 40 NPA). This consent may be given subject to terms and conditions (s 40(1) NPA) and the advice of the National Parks Advisory Council must first be obtained (s 40(3) NPA). The consent and conditions are to be tabled in both Houses of the Victorian Parliament and the consent revoked if either House of Parliament passes a resolution to that effect within 14 sitting days of the consent and conditions being tabled (ss 40(5) and 40(6) NPA).
If exploration under an ESP is successful the applicant must apply for and be granted a work authority under s 19 of the EID Act prior to the extraction of commercial quantities of material (i.e. to carry out an extractive industry). The processes of approvals and consents for a work authority is similar to those described above for an ESP but with some additional requirements, including a planning permit from the appropriate Shire Council and more detailed information for a work plan and a significantly greater rehabilitation bond. A work authority is granted for the life of the resource, subject to stated conditions, and further ministerial consent under s 40 of the NPA would be required for the granting of a work authority over a park. The grant of such a work authority constitutes a separate future act.

The proposed search activity

The exploratory drilling program proposed by the grantee party is to test the size and grade characteristics of a potential limestone resource. Initially it is limited to the 10 hectare search area approved by the Minister under the NPA within Tyers Park. According to Mr Baillie, Timothy Summons explored for limestone in the early 1990s and as a result decided to apply for ESP 158 to include an area to the north of the current target area. Mr Summons was of the view that there was a possibility of limestone extending from the southern to the northern boundary of ESP 158. Mr Baillie is not so optimistic and considers that any limestone will be discovered in the target area within Tyers Park at the southern end of ESP 158 or just to the north of it.
Based on the affidavit and oral evidence of Mr Ian Baillie I find that the drilling program will take between two and six weeks and involve the drilling of a series of 100 millimetre to 150 millimetre diameter holes. The program will involve two stages, both stages to be conducted within the six week period and with the second stage dependant on the results of the first. Stage one involves drilling 10-15 holes and stage two between two and four holes which will be drilled from the same drill sites as stage one. At most drill sites it will only be necessary to remove the light understorey to create a safe area in which to operate the drill rig. It is proposed to locate the stage one drill holes along two gently sloping spur lines and no earthworks are required. The Minister’s consent under the NPA has identified zones in the valleys and watercourses where drilling activity is not permitted. Some of the drill holes in stage two are to be positioned on steeper sites and it may be necessary to create a level drill pad with a small excavator. The drill pad would be around six metres by four metres and the exact location decided in consultation with the Chief Ranger. The drilling is to be done with a relatively light weight rig and only to a depth of 60 metres. The drilling will be by air compressor or if water is required then a closed cycle system using a tank will be utilised to avoid the need for a sump and release of water into the environment
No new access tracks will be constructed and there will only be two access routes into the drilling area from the main Tyers/Walhalla Road. Initially access is by existing gravel road and then former logging tracks will be followed. No grading of roads is necessary. A small excavator will be used to clear fallen logs from the old logging tracks and chainsaws will be used to trim the understorey regrowth where it occurs on the track to allow it to be used to access the search zone. No earthworks are required along the access route. A geologist, a sampler, Aboriginal site monitors and a three man contract drilling crew will carry out the drilling program. The drilling program will cost between $60,000 and $100,000 depending upon whether the results from stage one can justify stage two.
Rehabilitation of soil and plant disturbance will be completed to the satisfaction of the Chief Ranger. Once the location of the proposed drill sites have been finalised key environmental mitigation options will include:

defining vehicle pathways to and from drill sites that minimise the vehicle traffic and the turning of heavy machinery;
vehicles to only travel in and out of the drill sites when absolutely necessary;
salvage of selected plant species where appropriate for use in revegetation works; and
collection of local seed for use in revegetation work.

The target for the current search programme may involve additional drilling in the area in Boola State Forest just to the north of the 10 hectare search area in Tyers Park. Before such drilling could be carried out another work plan would be required and consent obtained from the Land Manager for Boola State Forest. This further work plan would contain an operations plan and environmental management plan.
The drilling program will be carried out according to strict conditions. There are 101 terms and conditions applying to the consent given by the Minister under the NPA. In summary, the search activities are limited to the drilling of up to 30 holes within the 10 hectare search area. There is a requirement for an operations plan including a rehabilitation plan and environmental management plan. The environmental management plan is to include findings from flora and fauna and archaeological surveys. Specific sites of significance for flora and fauna and of historic, cultural, landscape or recreation significance may be excluded from certain search activities. The grantee party is to comply with relevant provisions of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) and the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and any Aboriginal sites or artefacts in or adjacent to the search zones shall be protected to the satisfaction of the Chief Ranger. Surface disturbance, clearing of vegetation and soil disturbance shall be kept to a minimum; all drill sites are to be identified in the operations plan and located to avoid stream and drainage lines; activities are restricted to those sites and access routes approved in the operations plan and no vehicle use is permitted off existing tracks without prior approval; and drill sites are to be confined to the smallest area which is practicable to conduct operations.
Condition 29 of the Minister’s consent requires the grantee party to undertake a survey in relation to Indigenous or non-Indigenous heritage to ensure adequate protection of these values prior to any search activities being undertaken. This issue is further dealt with below.
Condition 33 of the Minister’s consent requires areas which have been nominated for access tracks or drill sites to be surveyed for significant flora and/or fauna by the grantee party before the commencement of any work. A flora and fauna assessment has been carried out for Omya by Biosis Research (Steve Mueck and Mark Venosta, Flora and fauna assessment of areas proposed for mineral exploration drilling in Tyers Park, Gippsland, Victoria, December 2002, Biosis Research). The assessment concluded that if properly managed the overall impact of the proposed drilling operation should be low and rehabilitation should be able to recover the existing vegetation condition within a 10 year period.
Ms Mullett raised questions about the adequacy of the flora and fauna assessment, particularly whether there was any consultation with the native title party on their rights and interests in the flora and fauna and whether the assessment could have missed important species that could have been identified by her group. Mr Mark Riley of the Department of Sustainability and Environment who has responsibility for policy advice in relation to national parks said that the flora and fauna assessment is one carried out basically for biological significance rather than cultural significance and he was not aware of what level of consultation there had been with registered native title claimants. Ms Mullett also suggested that some species may have been missed because of the time of year the assessment was carried out. Mr Riley’s response was that while that may unavoidably be the case because of seasonal variation the flora and fauna assessment had been carried out satisfactorily and provided reasonable information of what flora and fauna were likely to be impacted upon by the drilling proposal. There is no evidence before the Tribunal to suggest that the assessment was not adequate or properly carried out.
With respect to the issue of the involvement of the native title party in the flora and fauna survey there is evidence that some attempts were made to involve the Kurnai faction in it. Mr Baillie provided a Tax Invoice sent from Yeerung Kurnai to Omya for participating in the native flora and fauna survey at Tyers Park conducted by Biosis Research which he said had been paid. At the hearing Ms Mullet denied that the invoice had been paid but in her written submission in reply to the Government party said that it had been. Ms Mullet also has in her possession a flora and fauna report that was not incorporated into the Biosis Research assessment report. At the preliminary conference on 10 February 2003 Ms Mullett indicated that she wished the report in her possession to be part of the evidence and undertook to provide it to the Tribunal. By the time of the hearing proper she had not done this and at Traralgon Ms Mullett initially said she would not provide it unless it was paid for. She later said she would provide it but has not done so. Mr Baillie says that Omya has paid the initial invoice but would not make any further payments until invoiced for the report in Ms Mullet’s possession. It appears that the Kurnai faction were invited to be involved in the flora and fauna survey, have been paid to participate and prepared a report based on it which they did not make available to Omya, Biosis Research or the Tribunal. I find Ms Mullet’s complaints about lack of involvement to be unjustified.
In any event in these proceedings the Tribunal is not involved in the consideration of the environment at large but only insofar as it relates to the issues in s 39. Given the lack of evidence about the enjoyment of native title rights and interests by the native title party in the area of ESP 158 there can be no criticism about the manner in which this issue was handled by the grantee party.

Section 39(1)(a)(i) – enjoyment of registered native title rights

The Register of Native Title Claims (VC97/4): The following native title rights and interests are entered on the Register of Native Title Claims:
‘1. Exclusive Possession
The rights and interests possessed by the applicants under the traditional laws acknowledged and traditional customs observed by them confer on them possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.
The applicants seek a determination that the native title rights and interests confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, subject to the rights validly granted by the Crown pursuant to statute to others to possess, occupy, use or enjoy the land or waters.
2. Ownership
The right and interest of possession, occupation, use and enjoyment of the land and waters.
The right to be acknowledged as the traditional Aboriginal owners (the indigenous owners, or the owners according to traditional law and custom) of the land and waters.
3. Right to Natural Resources
The right and interest of ownership of the natural resources of the land and waters, and the right to take, use and enjoy those resources.
The natural resources of the land and waters includes, but is not limited to, animals, birds, plants, fish, marine animals, shellfish, timber, water, ochre, stone, minerals and subsurface materials.
4. Right to Trade
The right to trade in the natural resources of the land and waters by exchange, barter, sale or otherwise.
5. Right to Make Decisions
The right to make decisions about the use of the land and waters in accordance with traditional laws and customs.
This right includes the right to care for the land and waters, to maintain the environmental health of the land and waters, and to protect the land waters and the natural resources of the land and waters from damage or harm.
6. Right to Give or Refuse Access
The right to give or refuse permission to have access to the land and waters, or to occupy, use or enjoy the land and waters, or to use and enjoy the natural resources of the land and waters.
7. Protection of Heritage
The right to protect places and areas of importance in the land and waters.
Such places include places of significance to the applicants, places of spiritual significance, places of historical and cultural significance, burial grounds, places that record the presence of the applicants' ancestors including scarred trees, camping areas, middens.
8. Management of Spiritual Business
The right to manage the spiritual business and to safeguard the cultural knowledge associated with the land and waters.
This includes the right to the cultural knowledge relating to the land and waters, to perform ritual relating to the land and waters, to teach and transmit the knowledge, ritual and cultural heritage relating to the land and waters, to possess sacred objects relating to the land and waters.
9. Transmission of Rights
The right to inherit and dispose of our land and waters in accordance with our laws and customs.
10. Cultural and Intellectual Property Rights
The right to own, control and manage our cultural and intellectual property in accordance with our laws and customs.
The Native Title Rights and Interests are subject to the following qualifications:
The application does not include a claim for exclusive possession over previous non-exclusive possession act areas as defined under section 23F of the Native Title Act 1993 save where the Native Title Act 1993 and/or the common law allows such a claim to be part of a Native Title Determination Application.
To the extent that the Application includes native title rights and interests claimed in relation to an offshore place - the Application does not exclude all other legal and valid rights and interests in relation to the whole or part of the offshore place.
To the extent that the Application includes native title rights and interests consisting of or including ownership of minerals, petroleum or gas, the application does not consist of or include ownership of minerals, petroleum or gas where the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas.
The applicants seek a determination that the native title rights and interests confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, subject to the rights validly granted by the Crown pursuant to statute to others to possess, occupy, use or enjoy the land and waters.’
Contentions were made by Ms Pauline Mullett in relation to each of the s 39(1)(a) criteria but only on behalf of the Kurnai faction. These contentions are very general and not supported by evidence. The contentions of the Kurnai faction in relation to s 39(1)(a)(i) were:
‘The land is very important aspect of our culture and to our people. We the Kurnai Tribes are the original inhabitants of the Gippsland region.
Traditional and continuous association and claim to land within the Aboriginal community is through the mother. The Kurnai tribes have been historically recognised in the Gippsland region by the whitefella since the early 1800’s. Only 5 Kurnai tribes have been historically documented in the Gippsland region. These are Tatungoloong, Krowathunkooloong, Brayakoloong, Brabuwooloong and Bratowoloong.
Native Title Act recognises the rights of our people for possession, ownership, rights to natural resources, rights to trade, rights to make decisions, the right to give or refuse access, protection of Heritage, management of Spiritual Business, transmission of Rights and Cultural and Intellectual property rights.
Our land and waters were given to us by our ancestors to maintain our cultural and spiritual needs. We the Kurnai people respect our land and value our heritage. The Native Title Act recognises many of our legitimate rights. As the legitimate custodians of the land we only take from the land to satisfy our basic needs and spiritual well being. We also used many resources from the land to trade for goods that were not readily available to our people. These resources were never exploited for the benefit of a few.’

Native title rights and interests will not be extinguished by the grant of ESP 158 (s 24MD(3) NTA).
As explained above the factors which the Tribunal is required to take into account in making a future act determination as set out in s 39 of the Act were outlined to the parties on a number of occasions during the inquiry. In particular when the hearing commenced on country at Tyers I outlined the criteria in s 39(1)(a) and pointed out that evidence on those factors was necessary for the Tribunal to make a decision. Again, at the search area in Tyers Park I referred specifically to some of the registered native title rights and interests and invited the persons from the claim group to provide information about them in relation to that locality.

The evidence provided in relation to the enjoyment of the native title party’s registered native title rights and interests was extremely limited and very general. Reference was made by some of the claim group to feeling the spiritual connection to country and the serenity and harmony which is felt by them. The claimants felt welcomed in the area and felt the spirit of their ancestors. They made the point that things are not the same once the area is disturbed. Ms Pauline Mullett referred to the recorded archaeology in the area and artefacts which belong to the Kurnai people. She said that the claim group may use the resources such as limestone but did not say how on the basis that the information was confidential. She said that limestone is an important resource that was used in ceremony and had been used for years. When present Ms Mullett says the claimants would enjoy the country and acknowledge their spiritual beliefs. They would search for food and other resources. Ms Mullett said that she and Mr Howard Mullett had been to the area, had lit fires and walked through the bush. More recently she had been there to look at the impact of the proposed search activity. The group also came to collect seeds from the eucalyptus trees. Ms Mullett said that the whole land is sacred and is one site. It is significant because of the extraction of limestone for ceremonies. Ms Mullett said that the traditional use of lime was confidential information which could only be given to the traditional owners as the use was very sacred. She said that the inquiry group had passed a scarred tree when coming into the search area but she was not prepared to show it to the Tribunal. She said the place would have been significant for camping down in the gully.
Although a number of assertions are made in the Kurnai faction’s contentions about their native title rights and interests, the only actual evidence was that given at the search area, which is limited and not very specific. My finding is that there is no evidence of a substantial kind concerning the past or current enjoyment of the proposed search area or the area of ESP 158 generally by the native title party and the future act will therefore have no impact on the enjoyment of their native title rights and interests. Even if there was more substantial evidence of the enjoyment of native title, the nature of the activities to be undertaken under the search permit, the limited duration of them and regulatory controls in relation to them mean that their impact on the land will not be great and capable of complete rehabilitation over time.

The Kurnai faction’s contentions are based on a misconception of the role of the Tribunal in a future act inquiry. The Tribunal does not require proof of native title as such and cannot make a determination of native title. As explained in WMC Resources & Anor v Evans (1999) 163 FLR 333 at 341, until the claim is determined, the Tribunal accepts for the purposes of these proceedings that the registered native title rights and interests exist. However, there is a further step in the process in that there must be evidence (which can usually only be produced by the native title party) of the enjoyment of those specified rights and interests in the area in which it is proposed to do the future act. The native title rights and interests may be enjoyed to a different extent in different parts of the claimed (or determined) area. The Tribunal must look for evidence of the factors in s 39 in the context of the area in which the particular future act is proposed to be done. It is not adequate to make assertions without evidence. While some members of the native title claim group and in particular the Kurnai faction may have a view about what the law and the NTA should provide, the reality is that the Tribunal must apply the law as passed by the Commonwealth Parliament and contained in the NTA.

Section 39(1)(a)(ii) - way of life, culture and traditions

The contentions of the Kurnai faction on this issue were:
‘The Kurnai Tribes used the land to maintain their culture and way of life. We used the land and waters to provide for all our needs. We did not differentiate between the land providing our sustenance or spiritual needs. Every inch of the land and sea is important. It is the white man that has tried to make us identify which areas are more important than others i.e. Sacred Sites. This is akin to asking a white person which part of their house is most important to them. The house is their home. There is no part of the home that is more important than another part of the house. A cupboard is no less important than the lounge, toilet or bathroom. Our relationship with the land is identical. All of it is important, the land, the water, the plants the animals are as important to us as the air we breathe. Our cultural heritage and history is all part of this Kurnai land which is now called Gippsland.
The Kurnai can trace their association with the land long before the white man came. We do not excavate large areas to the detriment of everything around it. We recognise the harmony of all. We do not differentiate between living and non-living things.’
These contentions are of general nature and relate more to the issue of sites which I deal with below. There is no evidence to support a finding that the grant of ESP 158 will have any affect on the way of life, culture and traditions of the native title party.

Section 39(1)(a)(iii) - development of social, cultural and economic structures

The contentions of the Kurnai faction on this issue were:
‘The Kurnai clan have been the custodians and traditional owners of the Gippsland region for thousands of years. The five tribes of the Kurnai occupied different parts of the region however they had very close ties with each other through both marriage and common cultures. Each tribe had their own totem and designated Elders that maintained and enforced the Kurnai culture and traditions. The tribal ancestry and lineage was recognised only through the mother. There were very strict rules defining marriages between the tribes. Depending on his or her parents, each individual was associated with their totem. Only compatible totems could marry. This precluded interbreeding and maintained a healthy and vibrant society.
Tribes outside the Kurnai were treated as an enemy. Clear delineation of territories were observed and trade between the tribes was a complex process with substantial protocols to maintain the status quo. Appropriately identifiable messengers were used by both parties to initiate a trade at a neutral ground. Often wives would be stolen from other clans outside the Gippsland but these women or descendents were never recognised as Kurnai. The stolen women would be treated with respect but, as an outsider. Her children would not be initiated, however, in all other respects they were treated equally within the tribe. Having woman from other clans often helped when trading with other clans as they would be aware of the needs of the other clan.’
These contentions are not specifically directed to the effect of the grant of ESP 158 on the development of the native title party’s social, cultural and economic structures and there is no evidence to support the grant having an adverse effect on them.

Section 39(1)(a)(iv) - freedom of access – freedom to carry out rites, ceremonies and other activities

The contentions of the Kurnai faction on this issue were:
‘Over the last 150 years much of the land has been taken from us. A deliberate policy of removing our people from our land by any means, including, killing, poisoning and introducing disease was adopted by successive governments. Later, forced relocation and integration was the preferred method. Our people were force to live on missions with people from other clans, often our enemies. We were discouraged from practicing our traditional culture by white mans laws and mission staff associated with the Christian churches. We were dispossessed of our land and our way of life.
We the remaining Kurnai people are trying to salvage our culture. Our land is sacred to us and is a major part of reconciling our past. Corporations treat our land as a commodity for their own private use only for profit without and recompense or compensation to the traditional owners. They are destroying our past with little regard to our future.’
These contentions do not address how the grant of ESP 158 will affect the activities covered by this criterion. There is no evidence to suggest that the native title party conduct any of the activities on the area of ESP 158 except the unspecific evidence relating to the importance of limestone for ceremony. The grant of ESP 158 will have little effect on the native title party’s freedom of access which would only be restricted for occupational health and safety reasons around the area actually being drilled. The currently proposed drilling program will only last for a maximum of six weeks.

Section 39(1)(a)(v) – areas or sites of particular significance

The Kurnai faction’s contentions on this issue were
‘All the land, water, flora and fauna belonging to the Kurnai people is sacred. Often the white man asks us to identify the sacred or culturally significant places. There is even a register to document these areas. To the Kurnai everywhere is sacred and culturally significant. When you need to fish than the river is sacred, when you need to find food then the bush is sacred and when you need to shelter a small outcrop or a camp site is sacred and when an initiation ceremony is held that area is sacred. There are also areas that are secret and would not be identified to the uninitiated for cultural reasons. The land is full of our cultural history and remnants of our ancestors.’
The native title party’s limited evidence on this point is set out above. It provides no basis for a finding that there are any sites or areas of particular significance to the native title party in accordance with their traditions on or in the vicinity of the area of ESP 158. There is evidence of some artefact sites identified in an archaeological survey carried out on the instructions of the grantee party (Vines G, An archaeological survey of mining exploration area, Tyers Park, Victoria, December 2002, Biosis Research). I deal with this survey in more detail below but there is no suggestion that these sites are of particular significance to the native title party and in any event they will not be affected by the drilling activity.
The Act refers to sites of particular significance (i.e. of special or more than ordinary significance). In the context of the expedited procedure where the same terminology is used in s 237(b), the Federal Court (Cheinmora v Striker Resources NL (1996) 142 ALR 21, Carr J at 34-35) said:
‘a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough, that the site simply be of significance to the native title holders. That would leave the word ‘particular’ with no work to do. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the native title party claims are of particular significance, the tribunal will have to make its own factual assessment of that matter.’

This interpretation is equally applicable to s 39(1)(a)(v).

It is also necessary for there to be evidence of the nature of the significance so that whether it is a special place or not can be properly assessed by the Tribunal (Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, John Sosso, 1 February 2002 at [91]).
As in the Victorian Gold Mines matter the native title party’s contention is that all of the claim area is of special significance to the claim group. I reiterate my comments made in that determination that the Tribunal acknowledges that Indigenous people have a special and unique spiritual attachment to land generally but in addition to this the Tribunal must consider whether there are any areas or sites of particular (i.e. special and above the ordinary) significance which may be interfered with. This provision of the Act is based on the assumption that to Indigenous people there are some ‘special places’ which need consideration and protection. Indeed, this is the basis of Aboriginal site protection legislation which in various forms applies throughout Australia. I can only say that it is important for native title parties to provide evidence based on the law as set out in the NTA and determined by the Federal Court, not what they might wish it to be.
Even if any sites of particular significance or otherwise on the area of ESP 158 existed I am satisfied that the protective measures in Victoria’s legislation described below will be adequate to deal with the situation.
Findings in Victorian Gold Mines: In the Victorian Gold Mines matter the Tribunal made findings about the Aboriginal site protection regime in Victoria. The Government party requested that these findings be adopted pursuant to s 146(b) of the Act subject to some updating and corrections provided by Mr Stewart Simmons. The Aboriginal site protection regime involves both Commonwealth and State legislation and there is in some cases inconsistency between the two, thus making the State legislation inoperable. For instance, in Victorian Gold Mines I referred to the Archaeological Relics Advisory Committee established under the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic). Although still provided for in that Act the Committee in fact no longer exists as the Aboriginal site protection functions are effectively carried out by local Aboriginal communities under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (see below). For the sake of clarity I restate my findings in relation to this issue taking account of Mr Stewart Simmons’ evidence. A draft of these findings was provided to the parties for comment.
The Aboriginal site protection regime in Victoria: The protection of Aboriginal cultural heritage in Victoria is governed by two principal Acts. The Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
Archaeological and Aboriginal Relics Preservation Act 1972: This Act protects an ‘archaeological relic’ or ‘relic’ which is defined as a relic pertaining to the past occupation by Aboriginal people whether or not the relic existed prior to the occupation of that part of Australia by people of European descent and includes any Aboriginal deposit, carving drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia. The Secretary (the Chief Executive Officer of the relevant Department (currently the Department for Victorian Communities)) is to keep a register of all known occurrences of relics and all persons known to be holding private collections of artefacts or unique specimens that includes relics. The Secretary is to seek information about any new discovery of relics and arrange for the protection of relics. Archaeological areas may be proclaimed where necessary to preserve any relics and entry to such area is forbidden without permission. It is an offence to wilfully or negligently deface, damage or otherwise interfere with a relic. It is an offence to disturb or excavate any land for the purpose of uncovering or discovering a relic. Discovery of relics is to be reported unless already on the register.
The sites Register was established in 1973. A relatively small number of sites were included on it from information held by the Government party including the Museum. In addition surveys were carried out to identify and record sites. Others were registered following reports made during the environmental assessment of development proposals. The field surveys were not a comprehensive attempt to map all Aboriginal sites in Victoria. There are still vast areas of Victoria where no heritage assessment or investigation or survey has been carried out. At present there are approximately 23,500 registered sites and 600 to 1000 are added each year. The survey process is ongoing. The sites Register is not a complete register of Aboriginal sites in Victoria and the prohibition on interference with relics applies whether or not they are on the Register.

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth): In addition to the general provisions applicable Australia wide, Part IIA of this Act contains provisions applicable to Victoria only. Its administration is delegated to the State Minister. It provides for the protection of Aboriginal objects and Aboriginal places which are of particular significance to Aboriginals in accordance with Aboriginal tradition. Emergency and temporary declarations can be made to protect Aboriginal places and objects from injury or desecration as well as a permanent declaration of preservation. An inspector (a person appointed after consultation with a local Aboriginal community who has knowledge and expertise in the identification and preservation of Aboriginal cultural property), the Minister or a magistrate may make an emergency declaration if there are reasonable grounds for believing that the place or object is under threat of injury or desecration. It may last up to 44 days. A temporary declaration may be made by the Minister after advice from a local Aboriginal community that an Aboriginal place or object is under threat of injury or desecration. It may last up to 120 days. A permanent declaration of preservation may be made by the Minister after advice from a local Aboriginal community that a declaration should be made because of the importance of maintaining the relationship between Aboriginals and the place or object. The Minister can specify the manner of preservation to be adopted including prohibition of access to or interference with the place or object. There is provision for arbitration in relation to temporary or permanent declarations. It is an offence to contravene the terms of a declaration.
A local Aboriginal community may enter into an Aboriginal Cultural Heritage Agreement with anyone who owns or possesses any Aboriginal cultural property (Aboriginal places, objects or folklore) for its preservation, maintenance, exhibition, sale or use. The Minister may compulsorily acquire any Aboriginal cultural property if satisfied on the advice of a local Aboriginal community or otherwise that the property is of such religious, historical or cultural significance that it is irreplaceable and no other arrangements for its preservation or maintenance can be made. The property is then held by the local Aboriginal community on trust for that community or otherwise by the Minister on trust for Aboriginal people in Victoria.

Without the consent of a local Aboriginal community it is an offence to wilfully deface, damage, interfere with or do anything likely to endanger an Aboriginal object or place within its community area. This consent may be given subject to terms and conditions. A local Aboriginal community may also give consent for the excavation of any Aboriginal place or Aboriginal object in its community area for the carrying on of scientific research.
A number of organisations are specified as local Aboriginal communities in the Schedule to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The Government party has established and funds throughout Victoria an administrative program for the delivery of services to Aboriginal communities and for the protection of Aboriginal cultural heritage. The program is based on five regions. Each region has a Committee made up of representatives of local Aboriginal community organisations and bodies within the region. Each Committee employs staff, including a Regional Co-ordinator and a number of heritage protection officers. The Gippsland Region Cultural Heritage Committee covers the Gippsland region within which there are seven ‘local Aboriginal community’ organisations established under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (West Gippsland Aboriginal Co-operative Ltd, Central Gippsland Aboriginal Health and Housing Co-operative Ltd, Gippsland and East Gippsland Aboriginal Co-operative Ltd, Lakes Entrance Aboriginal Corporation, Lake Tyers Aboriginal Trust, Moogji Aboriginal Council East Gippsland Incorporated and Far East Gippsland Aboriginal Corporation). Representatives from these local community organisations are entitled to participate in the Gippsland Region Cultural Heritage Committee.
Mr Stewart Simmons, Manager Heritage Policy and Information within the Heritage Services Branch of Aboriginal Affairs Victoria (‘AAV’) in the Department of Victorian Communities outlined the procedures for the protection of Aboriginal cultural heritage in relation to an ESP. They are similar to those established for mining under the Mineral Resources Development Act 1990 (Vic) (see Victorian Gold Mines para [76]). Under s 11(3) of the EID Act the Minister must within 14 days of receiving an application for a search permit give notice of the application to any person or body nominated by the Minister administering the Archaeological and Aboriginal Relics Preservation Act 1972 (i.e. to the AAV); and any person or body nominated in relation to the application by the Minister to whom power has been delegated under s 21B of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

On receipt of details and maps of the application, AAV ascertains whether there are any registered Aboriginal heritage sites situated within, or in the immediate vicinity of the application area boundary. If such sites are present, a map of the registered site locations and details of their number, name, type and map grid coordinates are prepared and provided to the Mineral and Petroleum Division (MPD) of the Department of Primary Industries (formerly the Department of Natural Resources and Environment) for incorporation into the permit conditions. If no registered Aboriginal heritage sites are identified, MPD is advised of this situation with a request that advisory clauses be included in the ESP alerting the applicant to their responsibilities in relation to any unregistered Aboriginal heritage sites that may exist within the area. The Schedule of Conditions (Schedule A) will include a condition to this effect.
The procedures specified above were followed in this case. By letter dated 25 October 2001 AAV advised Mr Peter Merritt of the MPD that:

there were no records of Aboriginal archaeological sites within the ESP area, that the area had not previously been surveyed for archaeological sites and that the absence of recorded Aboriginal heritage values does not necessarily mean that none exist;
archaeological studies for the region indicate that Aboriginal archaeological sites are likely to be found in association with natural water surveys, creeks, drainage lines, lakes, swamps, sandy deposits and remnant vegetation;
a thorough survey and impact assessment for Aboriginal sites should precede any development;
it recommended a condition requiring such a survey before work commences;
it was normal practice for one or more representative of the relevant local Aboriginal community to participate in the survey and nominated the Central Gippsland Aboriginal Health and Housing Cooperative Ltd at Morwell as the relevant community;
the Regional Coordinator of the Cultural Heritage Program for the Gippsland Region was Mr Michael Harding of Morwell;
it recommended that a note be included on the permit, drawing the permittees’ attention to the fact that all Aboriginal sites, places and objects are protected under the State Archaeological and Aboriginal Relics Preservation Act 1972 and Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984; and that it was an offence to disturb or destroy them without the prior written consent from the relevant local Aboriginal community.

At the request of Omya, Biosis Research carried out an archeological survey (Garry Vines, An Archaeological Survey of Mining Exploration Area, Tyers Park, Victoria, December 2002). Prior to commissioning the survey Mr Baillie sought advice from AAV on the correct procedure for obtaining an assessment of Aboriginal cultural and heritage sites for inclusion in an operations plan for an ESP. AAV replied (letter of 18 September 2002) identifying the local Aboriginal community organisation under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) as the Central Gippsland Aboriginal Health and Housing Co-operative Ltd. The letter also encouraged Omya to seek the advice of Mr Mick Harding of the Gippsland Cultural Heritage Unit (employed by the Gippsland Region Cultural Heritage Committee (‘the Regional Committee’)) in his role as Regional Co-ordinator of the Gippsland Cultural Heritage Program. Omya was also encouraged to continue to consult broadly and to work with the Central Gippsland Aboriginal Health and Housing Co-operative Ltd and with Native Title Representative Bodies to establish agreed protocols for their involvement in Aboriginal cultural heritage monitoring and management.
In his brief to Mr Vines of Biosis (dated 16 October 2002) Mr Baillie informed him of this advice and said in order to be as inclusive as possible Omya proposed to sponsor a survey coordinated by Mr Mick Harding which would involve equitable participation from the Yeerung Kurnai faction, the Gunai faction and the Central Gippsland Aboriginal Health and Housing Cooperative Ltd.
The Survey Report indicates that representatives of the Aboriginal community who took part in the field survey were Robert Douthat of the Gippsland Region Cultural Heritage Program; Colin Thomas and Nathan Walsh of the Central Gippsland Aboriginal Health and Housing Cooperative; Pauline Mullett, Howard Mullett, Dusty Dow, Simon Gallon of the Yeerung Kurnai native title claimant faction and Albert Mullett and Collon Mullett of the Gunai native title claimant faction. The Report says that the survey was conducted on two days, 13 and 21 November 2001(sic 2002); that on 13 November the survey team comprised Gary Vines, Robert Douthat, Colin Thomas and Nathan Walsh; and that during the survey an on site meeting was held with members of the Yeerung Kurnai native title claimant faction including Pauline Mullett who contributed their views on the potential cultural heritage values of the study areas. The survey team on 21 November comprised Gary Vines, Albert Mullett and Collon Mullett.
Ms Pauline Mullett asserted that she and others of the Kurnai faction did not participate in the survey although they met Mr Vines on the site. She asserted that Mr Vines did not have the necessary consent from the registered native title claimants as required under the NPA. She asserted that the archaeological report had not been accepted by the Regional Committee and that it must be passed back to registered claimants.
Evidence from Mr Stewart Simmons confirmed that Mr Douthat was employed by the Regional Cultural Heritage Program as a Cultural Heritage Officer based in Morwell. He also said that Colin Thomas represents the Central Gippsland Aboriginal Health and Housing Cooperative on the Regional Committee; and that Mr Mick Harding is an employee of the Regional Committee and is responsible for the coordination of Aboriginal cultural heritage matters in the Gippsland Region (all are of Aboriginal descent). He further said that several members of the Regional Committee are members of the native title party claim group – Mr Darryl Mobourne and Mr John Procter of the Kurnai faction and Mr Albert Mullett of the Gunai faction who is also Chair of the Regional Committee.
Three archaeological sites were identified during the survey comprising isolated artefacts in disturbed contexts. Two sites were near the proposed drilling locations while the third was in a road cutting opposite one of the access tracks leading from the Walhalla/Tyers Road. The Report concluded that none of these three sites would be impacted by the proposed drilling program and access tracks and that consent to disturb was not required. It recommended that Omya personnel and contractors should be made aware of the sites and the need to protect them from disturbance and suitable protection should be provided to ensure that works are not carried out in these areas or in their vicinity. The Aboriginal community organisations (Central Gippsland Aboriginal Health and Housing Cooperative, Yeerung Kurnai native title claimant faction and Gunai native title claimant faction) should be involved in monitoring any disturbance to the vegetation and top soil in the area impacted by the drilling operations and access tracks. There should also be a suitably qualified archaeologist present during the monitoring for site recording and preparation of a consultants report in order to satisfy the recording standards set by AAV. Any artefacts identified during the monitoring should be recorded and discussions held with Omya to determine whether an alternative track alignment and drilling site can be found to avoid disturbance to the archaeological site. If this cannot be achieved Omya must apply for a consent to disturb from the Central Gippsland Aboriginal Health and House Cooperative. If alternative proposals for exploration drilling or quarrying are put forward then additional archaeological survey and assessment must be undertaken over those other areas.
The grantee party is aware of and complied with its obligations relating to the protection of Aboriginal cultural heritage. There can be no legitimate criticism of the steps that Mr Baillie has taken. He has sought advice from AAV, involved Mr Harding (of the Regional Committee) in the conduct of the survey (through Biosis) and engaged employees of the Regional Committee as well as someone from the Cooperative and the Gunai native title faction. The Kurnai faction was given an opportunity to participate but declined to do so. There are members of the native title party claimant group on the Regional Committee and should there be any consent to disturb a site required then I am satisfied that the Regional Committee is in a position to ensure that consent is properly obtained. Further, Omya has agreed to conduct a survey if their search activities proceed beyond Tyers Park and as suggested by the Government party a condition to this effect will, with the agreement of the grantee party, be imposed on the determination.
As my finding is that there is no area or site of particular significance to the native title party on the area of ESP 158 there can be no effect of this kind from its grant. I also find that even if such an area or site did exist it would be protected by the regulatory regime in place in Victoria on the basis that the grantee party will comply with the law which in the absence of evidence to the contrary the Tribunal is entitled to accept. The only possible improvement I can suggest is for the relevant Government departments (AAV etc) to make specific reference to the desirability of consultation with any registered native title claimants about possible sites. In this case Omya were aware of and sought to involve the registered native title claimant in the archaeological survey. However, Mr Simmons acknowledged that referral of a proposed development to a local Aboriginal community under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) would not necessarily involve consultation with a native title party. In the circumstances I recommend that any advice from the Government party to miners or developers contain specific reference to consultation with registered native title claimants under the NTA.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party

The Kurnai faction made the following contentions in relation to conditions:
‘We the Kurnai people understand that progress in inevitable. We wish to participate in the development of the area however we should also be able to share in the benefits of what the land has to offer. We believe it is totally unreasonable for the Kurnai people to incur costs as a consequence of some organisation undertaking a commercially profitable project. We acknowledge that many organisations are aware of our rights and work with us to achieve mutually beneficial outcomes. We are very concerned at the behaviour of some organisations in our region. Our minimum requirements for agreed projects are:-
1)   To be provided with adequate funding to assess the impact of the project
2)   To be consulted and have final say on all cultural heritage issues
3)   To be provided with funding for any legal costs associated with the project
4)   To be fairly compensated for any work undertaken as a consequence of the project
5)   To be fairly compensated for the usage of our land
6)   To share in the profits from the land/project
7)   To be provided with funds to restore and manage the land during and after completion of the project’
I have already commented on the problem of resources available to the native title party. Mirimbiak has attempted to assist but because of the split in the claim group has not been able to do so.
With respect to the contentions concerning compensation the Tribunal does not have power to award compensation as a condition of a determination but can only direct that payment be made into trust on account to be paid out if a determination of compensation is made by the Federal Court. For various reasons the Tribunal has declined to impose such a condition in all future act determinations to date (Western Australia/Richard Guy Evans & Others/Anaconda Nickel Ltd and Others, NNTT WF98/267, WF98/268 and WF98/270, Hon C J Sumner, 20 August 1999 at 14-23; Carol Dawn Bissett and Others/Mineral Deposits (Operations) Pty Limited/New South Wales, NNTT NF01/1, John Sosso, 24 September 2001). Not all the factors mentioned in these cases are present here but it remains true that the law on determining compensation is unclear, there will be no immediate benefit for the native title party and the failure to impose a trust condition will not prevent the native title party subsequently making a claim for compensation in the Federal Court, if native title is determined to exist. In addition the lack of evidence of the effect of the grant on native title is a compelling reason for not imposing a trust condition. The Tribunal is prohibited from imposing a condition requiring payments to the native title party based on a share of profits (s 38(2) NTA).
The Kurnai faction also said in its written contentions that the application for ESP 158 should be rejected on the grounds first, that a cultural survey had not been completed prior to the hearing. I have found that an appropriate Aboriginal cultural heritage has been carried out.
The second contention is that the application should be amended and resubmitted confined to the 10 hectare area in Tyers Park. While I acknowledge that search activity is unlikely in areas other than Tyers Park and the area to its immediate north there is no basis on the evidence of the enjoyment of native title rights and interests in the area for requiring the grantee party to go to the expense and incur further delay by recommencing the approval application approval process. In the unlikely event that search activities are conducted outside the current target area I am satisfied that the regulatory regime in place is adequate to deal with any issues which might arise under s 39(1)(a) of the Act.
The third contention was that if the grant is to proceed over the whole 3,400 hectares then a detailed flora and fauna report and cultural heritage report should be completed for the whole area. Once again the evidence of the enjoyment of native title interests over the whole permit area or existence of sites of particular significance is so limited as not to justify conditions of this kind. Even so the Government and grantee parties have agreed to a condition for a cultural heritage survey over areas to be drilled outside the 10 hectare search area in Tyers Park. A flora and fauna survey will be carried out if deemed necessary by the Government party following its consideration of the grantee party’s work plan.
In its fourth contention the Kurnai faction accused the grantee party of going to arbitration in order to benefit themselves financially and of shirking its obligations by terminating the negotiations. There is no evidence to support this contention. Negotiations were conducted in good faith but were unsuccessful and attempts at mediation by the Tribunal via a s 150 conference also failed to produce agreement. The grantee party does not gain any immediate financial benefit from the activities as this will be dependent on the discovery of a commercially viable resource the exploitation of which will involve further negotiations under the Act.
In her oral submissions Ms Mullet advised that the Kurnai faction would agree to the grant provided conditions were imposed to reflect their contentions.
The position of the Gunai faction as given during the hearing was that they agreed to the grant subject to the condition for a further heritage survey if search activities are proposed outside Tyers Park (which will be imposed as a condition of the determination) and for a further work plan (which will be required by the general regulatory regime).

Section 39(1)(c) - economic or other significance

The expenditure on the drilling programme of between $60,000 and $100,000 means that the economic significance of the act itself is not very great but it will provide some employment including for Aboriginal site monitors and some economic benefits to the local community.

Section 39(1)(e) - public interest

There is a public interest in the carrying out of exploration activities which may lead to subsequent mining or productive quarrying activities. In this case Omya has provided evidence of the importance of a limestone resource to its operations in Victoria which I am entitled to take into account. Omya has 120 employees, four plants and three quarries in Australia and produces over 600,000 tonnes of calcium carbonate products per annum. These are used in paper and paper coating, paints and surface coating, rubber, plastics, building products, toothpaste, householder cleansers and recyclable products. Omya currently imports 100,000 tonnes per annum of white calcium carbonate from Queensland for use in its processing plant in Victoria at North Geelong. The purpose of ESP 158 is to find a viable local source of calcium carbonate in Victoria. The resource has the potential to provide raw materials for many industrial uses in Victoria. The development of a quarrying operation might initially require capital expenditure of $5 million and there would be on going expenditure on consumables, wages, contractors and freight of approximately $4 million per annum at full capacity. A limestone quarry operation would lead to a reduction in the import of high grade limestone into Victoria from other States and an improved cost structure; more competitively priced products and new product development; increased output from the existing Geelong processing plant with increased expenditure on local goods, services and wages; and establishment of additional processing technology at new sites which may include some on-site facilities at the customers premises. Existing resources of suitable limestone in Victoria are approaching exhaustion and could be progressively replaced by this development.

I accept that generally it is in the public interest for quarrying to proceed, particularly in regional areas of Victoria. More specifically the evidence in this case is that the discovery of a commercially viable limestone resource and its exploitation if that is considered appropriate by the Government party will be of benefit to Victorian industry and to the people of the particular locality.

Section 39(2) – existing non-native title interests etc

Apart from Boola State Forest and Tyers Park there are a number of other non-native title interests and users within the permit area. There are three active quarries, exclusive access rights to Gippsland Water for a catchment area; various non site specific guided leisure permits issued by Parks Victoria for activities within Tyers Park and elsewhere within ESP 158. Commercial timber harvesting operations occur within Boola State Forest. Logging previously occurred on Tyers Park. These non-native title rights and interests mean that to some extent there will already have been some adverse affect on any native title rights and interests which exist. However, given the lack of evidence of the enjoyment of native title they are not of great importance in this matter. Suffice it to say that some of them (the quarries) are similar activities to those which the grantee party may, if the drilling program is successful, seek to establish.

The dispute within the claimant group

In Victorian Gold Mines I expressed concern about the most unsatisfactory state of the Gunai/Kurnai native title claim. It should be obvious to everyone involved that the conflict within the group means that the right to negotiate provisions of the Act cannot function as Parliament intended. My experience in the current matter only reinforces the view that this claimant group is completely dysfunctional.

The split has manifested itself in a number of ways. In Victorian Gold Mines the Kurnai faction would not agree to an independent barrister representing the claimant group or sign the same s 31 agreement as the Gunai faction even though agreement had been reached. In the present matter Ms Mullett:

has continually asserted that the Gunai people are not the traditional people for the Gippsland area;
would not agree to Mr Sexton representing the whole of the claimant group; and
requested that the Kurnai faction’s evidence be given in the absence of members of the Gunai faction.

Regrettably this dispute permeates the whole of the proceedings and makes the process practically unworkable. The Government and grantee parties and the Tribunal were put to considerable time and expense to go through a process which, if the claim group was functioning properly, would in all probability not have been necessary. In this case the activities to be conducted under the search permit were not great in their impact on the land, there was no proposal for productive mining and virtually no evidence of the enjoyment of native title rights and interests in respect of the area or of the other factors referred to in s 39(1)(a). There was eventually agreement from both factions that the grant could be made and the only dispute was over conditions. Despite these factors which should have been conducive to reaching an agreement attempts at negotiation and mediation failed.
The dispute within the Gunai/Kurnai claim has been known since 1999. It was apparent in Yallourn Energy/Terence Ernest Campbell Hood & Ors (Gunai/Kurnai people)/Victoria, NNTT VF99/1, Hon C J Sumner, 17 September 1999, which was eventually settled by a consent determination on 17 September 1999 after three days of hearing. Over the years the Tribunal has made considerable unsuccessful efforts to attempt to mediate an agreement between the factions in the context of dealing with future acts and Indigenous Land Use Agreements.
According to Mr Sexton, the Federal Court is now also attempting to mediate. I understand that this mediation is being attempted following an application by Mrs Regina Rose on behalf of the Kurnai faction to remove the Gunai faction claimants from the claim. While I am not sure of what information the Federal Court had before it about the Tribunal’s previous attempts at mediation it is my respectful opinion that, in general, when the Tribunal has committed considerable resources and expertise to mediation of an intra-Indigenous dispute there is little point in the Federal Court duplicating the process (see Adnyamathanha People v State of South Australia [1999] FCA 402 at [28] per O’Loughlin J) and the matter should proceed to trial. I also have concerns about the difficulties that may be faced by the Federal Court if a matter goes to trial where it has been involved in mediating an agreement among claimant groups which does not reflect the evidence eventually given at trial. It seems to me that the Federal Court could be criticised for encouraging a pre-trial agreement on intra-Indigenous issues which is not supported by the evidence at trial.
In Victorian Gold Mines (para [92]) I expressed doubt about whether registration of the claim would be justified if the decision were being made today. I am not aware of what information was provided to the Registrar for registration under the 1998 amendment to the Act but it is reasonable now to assume that on the facts as currently known the right to continued registration is questionable.
I have seen some media comment from Mirimbiak to the effect that a recent meeting at Bairnsdale has cleared the way for negotiations on the claim to proceed. I am not sure whether this involves applying to amend the claim by replacing some of the persons comprising the registered native time claimant or some other steps to resolve the problems. From the experience in the present proceedings there was nothing to suggest that the problems within the claimant group had been resolved or were likely to be.
The right to negotiate is an important right which can bring benefit to Aboriginal claimants. The Act gives the right to registered claimants pending finalisation of a claim. However, the native title process is brought into disrepute by the circumstances the Tribunal has faced in right to negotiate matters involving the Gunai/Kurnai claim and the irreconcilable split within it. With respect, I consider it important for all institutions involved in administering the NTA to take steps to deal with the problem. I have referred these comments to the President of the Tribunal for whatever action he considers appropriate.

General conclusion

The Tribunal’s task in making a determination under s 38 of the Act is a discretionary one exercised by weighing the various factors in s 39 to which it must have regard on the basis of evidence before it (Waljen at 165-166). The right to negotiate provisions of the Act attempt to balance the protection of native title rights and interests with the interests of the broader community (Waljen at 149-150). The weight of the evidence in this matter clearly leads to a determination that ESP 158 should be granted. The only condition to be imposed will be to require a further archaeological survey to be carried out over areas to be drilled outside the current search area, if this should be proposed by the grantee party. This condition was requested by the native title party and is based on evidence that it was agreed to by the Government and grantee parties.
The grantee party’s drilling proposals are of a relatively benign nature in their impact on the land and will be carried out in accordance with strict environmental guidelines. There is very little evidence about the native title party’s enjoyment of native title rights and interests in either the search area or more generally in the permit area. There is no evidence of the matters referred to in s 39(1)(a)(ii)-(iv). The evidence is insufficient to establish that there are any areas or sites of particular significance to the native title party on the permit area. The Aboriginal site protection regime in Victoria is very comprehensive and it is unlikely that any Aboriginal site would be affected by mining or quarrying in that State or at least not without the consent of the local Aboriginal community.
There will be a limited economic benefit from the exploration drilling but there is a public interest in determining whether a commercially viable resource exists, which if exploited will provide benefits to the local and Victorian economies. The final position of both native title party factions was that they did not oppose the grant but requested conditions be imposed. The condition meets the request of the Gunai faction. There is no evidence to support other conditions proposed by the Kurnai faction.

Determination and Condition

The determination of the Tribunal is that the act namely the grant of Extractive Search Permit 158 to Timothy G Summons, may be done, subject to the condition that in Schedule A of the permit for ESP 158, there be a condition in the following terms:

If the grantee party proposes a further work plan that would permit new exploratory drilling (that does not fall within the definition of low impact exploration contained in this permit) within the area of ESP 158 but outside of Tyers Park, in respect to the area proposed to be subject to the new drilling:
a)the permit holder is to fund a survey by a suitably qualified heritage consultant to locate, record, and assess Aboriginal sites, places and objects on all land likely to be affected by the drilling, including land which may be disturbed by associated works such as the construction of new access roads and services. The survey must involve consultation with the relevant local Aboriginal community under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the registered native title claimants on the Gunai/Kurnai Native Title Claim VG6007/98 (Native Title Tribunal Claim No VC97/4); and
b)the permit holder is to undertake and fund any archaeological sampling or salvage excavations which may be recommended as a result of the above mentioned survey, subject to the endorsement of such recommendations by Aboriginal Affairs Victoria.

The definition of ‘low impact exploration’ for the purposes of this permit is:
1.‘Low Impact Exploration’ means exploring for stone on land and includes but is not limited to:
(a)   aerial surveys;
(b)   conducting geological, geophysical and geochemical surveys, or environmental field work; and
(c)   the use of non-mechanical hand tools to collect samples for the purposes of chemical and/or other analysis.
2.For the avoidance of doubt, low impact exploration specifically excludes:
(a)   using equipment, other than non-mechanical hand tools, to extract materials from the land (including existing tracks);
(b)   extracting any materials from the land for the purpose of producing them commercially;
(c)   using explosives on the land; and
(d) clearing.
3.For the purposes of this permit, clearing means:
(a)   removing, by disturbing root systems and exposing underlying soil, or damaging, any tree or shrub; and
(b)   removing ground layer vegetation, by disturbing root systems and exposing underlying soil;
but does not include:

(c) the flattening or compacting of ground layer vegetation by vehicles;
(d) the trimming or mowing of ground layer vegetation to facilitate temporary access; and
(e) the clearing of pest plants, as determined by the relevant land manager.
Note.

The Heritage Act 1995, the Archaeological and Aboriginal Relics Preservation Act 1972 and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 of the Commonwealth apply.

Hon C J Sumner
Deputy President
16 April 2003