Tony Kenyon Luwanbi and Gabriel Hazelbane Gulngarring on behalf of the Warai People/Brian John Briggs and Gary Anthony Clarke/Northern Territory
[2002] NNTTA 213
•27 September 2002
NATIONAL NATIVE TITLE TRIBUNAL
Tony Kenyon Luwanbi and Gabriel Hazelbane Gulngarring on behalf of the Warai People/Brian John Briggs and Gary Anthony Clarke/Northern Territory, [2002] NNTTA 213 (27 September 2002)
APPLICATION NO: DO 02/28
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application
TONY KENYON LUWANBI AND GABRIEL HAZELBANE GULNGARRING on behalf of the Warai People (native title party)
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BRIAN JOHN BRIGGS AND GARY ANTHONY CLARKE (grantee party)
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NORTHERN TERRITORY OF AUSTRALIA (government party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 27 September 2002
Hearing dates: 16 July 2002
Government Party: Mr Nicholas Papandonakis, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Gary Clarke
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – no registered or recorded sites – previous exploration/mining activity – legal principles – no evidence of community or social activities – no areas and sites of particular significance – no evidence of prior disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation: Acts Interpretation Act 1902 (Cth) s 36
Mining Act (NT) ss 24, 24A, 166
Mining Management Act (NT) Parts 3, 4
Native Title Act 1993 (Cth) ss 29, 32, 151, 237
Cases:Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai, DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002
Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002
Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002
May Rosas/BHP Billiton Minerals Pty Ltd/ Northern Territory, DO01/98, unreported, Member Sosso, 25 June 2002
Michael Page/Norman Sydney McCleary/Northern Territory, DO01/78, unreported, Member Sosso, 3 May 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory, DO01/13, unreported, Member Sosso, 1 February 2002
Paddy Huddlestone & Ors on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd & Ors/Northern Territory, DO01/137, unreported, Member Sosso, 27 September 2002
Western Australia v Smith (2000) 163 FLR 32
REASONS FOR DETERMINATION
Background
[1] On 17 October 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 10322 (“the proposed tenement”) to Brian John Briggs and Gary Anthony Clarke (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 2 blocks (approximately 7 square kilometres) and is located wholly within Pastoral Lease 718, which is known as “Mount Ringwood”.
[3] On 20 December 2000 a native title determination application was filed with the Federal Court (D6029/00). The name given to this application is “Mt Ringwood”, and the Applicants are Mr Tony Kenyon Luwanbi and Mr Gabriel Hazelbane Gulngarring. The application was entered on the Register of Native Title Claims on 19 January 2001. The Mt Ringwood application covers the whole of the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 18 February 2002. Technically this was more than four months after the section 29(4) notification day of 17 October 2001 (section 32(3)), however 17 February 2002 was a Sunday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1902 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
The named Objectors are also the Applicants named above.
[5] On 26 February 2002 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry, and on 27 February 2002 I issued Directions for the conduct of the Inquiry. The various contentions made by the parties have been pursuant to those Directions and subsequent variations. A listings hearing was convened on 16 July 2002.
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. The Tribunal is required, pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In this instance, having regard to the material before the Tribunal, I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.
[7] The parties have submitted to the Tribunal extensive written contentions, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 7 June 2002.
Contentions in Reply (“GPCR”) dated 2 July 2002.
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 18 June 2002.
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 8 July 2002.
Grantee Party Contentions
Affidavit of Gary Clarke (“Gr1”) dated 2 July 2002.
Evidence
[8] The native title party lodged the Affidavit of Tony Kenyon (Luwanbi), hereinafter referred to as “Tony Kenyon”, which was affirmed before Mark Rumler, a Commissioner for Oaths, on 19 June 2002. The Affidavit is set out below:
Tony Kenyon (Luwanbi)
“1. I am a member of the native title claim group in the Mount Ringwood native title determination application (DC 00/28). I am Warai.
2. The area of the application includes the area of ELA 10322. The ELA area is all Warai country. I can speak for that country. I have seen a map of the area of the ELA. Now produced and shown to me marked “TK 10322” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. I live at Waruk, near Humpty Doo in the Northern Territory. I have lived there for over 20 years.
4. I know the country on the ELA. I used to drive across the country in the licence area in 1983. Then the manager of Mount Ringwood put a fence there and locked the gates. We looked at the locked gates and fences and came back. We did not talk to the manager about it. Before that, I went out there hunting buffalo when Deep Waters Abattoir was open, in the 1960s. Dad used to walk on that country. Sometimes we can go on that country if the gates are open. It’s just luck.
5. There are no sites near McCallum Creek.
6. I am worried because the ELA area is next to the creek. The creek gets a lot bigger in the wet season. I am worried about stuff getting into the creek and going downstream. I am worried about them killing the fish and the turtle downstream.
7. I am not so worried about them drilling or sampling or chipping rocks, so long as that doesn’t mean that stuff gets into the creek.
8. If they set up camps on that country it might mess up our country and all the creeks. They need to talk to us first, before they go anywhere on the ELA area.”
Aboriginal Communities
[9] There are no Aboriginal communities situated on, or within (at least) a 10 km radius of, the proposed tenement.
Recorded or Registered Sites
[10] There are no recorded or registered sites within the boundary of the proposed tenement or immediately adjacent to it.
Previous Exploration Activity
[11] The area of the proposed tenement has been the subject of numerous exploration and mining grants by the Northern Territory for almost 20 years, with one Authority to Prospect dating back to 1972. Outlined below are details of previous mining and exploration tenements as supplied by the government party:
Authority to Prospect - AP 3021;
Exploration Licence – EL 1653, 2361, 2362, 4218, 5313, 5318, 7090, 8139, 8504, 9306, 9667;
Mineral Claim (Northern) – MCN 4217, 4230, 4231;
Authorisation (Northern) - AN 247;
Licence to Treat Tailings - LTT 4/80.
[12] Current mining tenements covering the same area are as follows:
Mineral Lease Northern - MLN 878, 879, 893, 894;
Mineral Claim (Northern) - Applications – MCN(A) 5129, 5130, 5131, 5132, 5232.
[13] It would appear that, not only has the proposed tenement been subject to numerous exploration and mining grants, the area has also been extensively explored and mined. Previous exploration activity has included costean sampling, pit sampling, rock chip sampling, stream/sediment and loam sampling, and extensive RAB (rotary airblast) drilling over the entirety of the proposed tenement. In my experience with expedited procedure objection inquiries in the Northern Territory, the land and waters that comprise ELA 10322 would be amongst the most intensively explored and mined that I have considered. In addition, mapping produced by the Department of Business, Industry and Resource Development illustrates that there has also been extensive exploration activity to the immediate north, west and south of the subject area.
Nature of the Proposed Exploration Activity
[14] In the Application for the Grant of an Exploration Licence the grantee party supplied the following information on the proposed work program for the first year:
“Soil sampling, panning and detecting. I believe the new detectors are a valuable tool in the search for gold reefs as I have witnessed two rich reefs uncovered in the last two months with the use of them.”
[15] In addition the grantee party indicated that the exploration program for subsequent years would be as follows: “We would apply for Substantial Disturbance Permit to do backhoe trenching and depending on results, possible drilling.”
[16] The intended exploration activity outlined by the grantee party is no more intrusive or intensive than what has occurred on the proposed tenement in the past and, in fact, would appear to be of a much lower impact in terms of the environment.
Expert Evidence Adduced by the native title party
[17] In addition to the Affidavit of Mr Kenyon the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy, the transcripts of evidence given by Messrs Stead and Foy to Member Stuckey-Clarke in December 2001 and the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.
[18] I have considered all of this material in a number of inquiries, and for the purposes of this inquiry I adopt my comments at paragraph 23 of Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002. So far as is relevant, I also adopt the analysis and comments of Deputy President Franklyn in Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].
Land Claim Report
[19] The native title party seeks to rely on certain findings of Maurice J in his capacity as an Aboriginal Land Commissioner in the Mataranka Area Land Claim Report. A similar reliance was sought to be made by the native title party in Paddy Huddlestone & Ors on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd & Ors/Northern Territory DO01/137, unreported, Member Sosso, 27 September 2002. I adopt for the purposes of this inquiry my findings at [40] – [41] with respect to the utility and relevance of His Honour’s findings for the purpose of this inquiry.
Legal Principles
[20] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
[21] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
Section 237(a) – Interference with the carrying on of community or social activities
[22] Mr Kenyon deposes that he is a member of the native title determination claim group and that he can speak for all of the land and waters that comprise the proposed tenement as it is Warai country.
[23] With the exception of Mr Kenyon’s Affidavit, the native title party has produced no other primary evidence about community or social activities of relevance to a section 237(a) assessment. It should be noted that there is a divergence in the evidence before the Tribunal about whether fencing on the proposed tenement was constructed by the pastoral lessee or a grantee of a mining tenement, as well as the extent to which native title holders are prevented from entering the subject area (cf Mr Kenyon’s Affidavit at para 4 with Gr 1 at 2(b)). In the event nothing significant turns on this difference, and for the purposes of this determination I have proceeded on the basis of the evidence given by Mr Kenyon.
[24] Mr Kenyon’s evidence on current community and social activities is scant. He deposes that he used to drive across the country until 1983 when it was fenced. Further he says that in the 1960s he used to go hunting buffalo in this region. It would appear that the only time he actually enters the subject area is when the gates are open and as he says: “It’s just luck.”
[25] This brief account of Mr Kenyon’s is all that the Tribunal has been presented in regard to community and social activities on the subject land. It is not clear from this brief account how often the proposed tenement is visited, by how many native title holders, what occurs on the subject area and how important this area is to native title holders. Further, there is no suggestion by Mr Kenyon that the intensive mining and exploration that has occurred over this area in the past has had any impact on such activities.
[26] In fact the evidence of Mr Kenyon suggests that this area is rarely visited by native title holders. As he says, it has been fenced since 1983 and access is only obtained when the gates are open. Moreover, it is open to infer that this area is not of particular importance for such activities as Mr Kenyon says of the fencing of the land: “We did not talk to the manager about it.” One would assume that if an area is of importance for hunting, fishing, gathering or ceremonial activities, and access is restricted, then native title holders would at least say something to the manager of the pastoral property about it.
[27] In short, the evidence of Mr Kenyon about community and social activities is historical. He provides no examples of contemporary activities on the proposed tenement. For example, he does not depose that the area is accessed for hunting of game, for teaching children about country, for social activities, for fishing or for any particular ceremonies.
[28] It is a condition precedent for conducting a section 237(a) inquiry that the native title party produces some contemporary evidence of community or social activities. Here no such evidence has been produced, and, accordingly, I am unable to find that there are social or community activities conducted by native title holders on the proposed tenement. No issue of conducting a predictive assessment of the likelihood of interference pursuant to section 237(a) arises due to the absence of evidence of relevant contemporary activities.
Section 237(b) – Areas or sites of particular significance
[29] Mr Kenyon specifically states that there are “no sites near McCallum Creek” McCallum Creek is located immediately to the east of ELA 10322, and in one small section it intersects the eastern boundary. I infer from Mr Kenyon’s statement that there are no sites near this Creek, and that there are no sites on, or immediately adjacent to, the proposed tenement.
[30] I have taken into account the following matters:
(a)there are no sites recorded or registered by the AAPA on the proposed tenement;
(b)the only native title holder to give evidence deposed that there are no sites on, or near, the proposed tenement; and
(c)the native title party made no submissions on section 237(b).
[31] In this inquiry there is not even the situation of a native title party asserting that there are sites without identifying them. Rather, in this instance the native title party has made no submissions on the issue of areas or sites of particular significance and has lodged an Affidavit from a native title holder who specifically deposes that there are no sites on, or near, the proposed tenement. In these circumstances the evidentiary prerequisites for conducting a section 237(b) are not present.
Section 237(c) – Major disturbance to land or waters
[32] The native title party made extensive submissions on the issue of major disturbance, however the bulk of those submissions were not directed to the particular circumstances of the proposed tenement, but were of a generic type received in most expedited procedure objection inquiries in the Northern Territory.
[33] In Moses Silver I set out key provisions of the then regulatory regime governing exploration activities in the Northern Territory. Subsequently Deputy President Franklyn described the changes brought about by the Mining Management Act in Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, 27 March 2002 and Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported 17 April 2002. More recently I considered the relevant provisions of the Mining Management Act in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002. I adopt, for the purposes of this inquiry, the analysis of the regulatory regime set out in the abovementioned determinations. In particular I have considered the following provisions in this inquiry: sections 24(j), 24A (in particular Conditions 2, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 20), 166(1A), (1B) and (2) of the Mining Act and Parts 3 and 4 of the Mining Management Act. The evidence submitted in this inquiry about the regulatory regime is consistent with previous findings of the Tribunal that it goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and to native title rights and interests are minimised as far as is practicable in the circumstances. Nevertheless despite the advanced and proactive nature of this regime, it is never a complete response to a predictive assessment by the Tribunal under section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant, and has been raised), and such other issues as may be pertinent.
[34] It is clear that this general area has been subject to extensive mining and exploration activity for many years. In addition within the outer boundaries of the proposed tenement there are a number of currently granted mining tenements: MLN 878, 879, 893 and 894. There are also a number of currently granted mining tenements in the immediate vicinity: MLN 880, 881, 882 and 1049
[35] Mr Kenyon expresses concern that the proposed tenement is located immediately adjacent to McCallum Creek which in turn flows into the Margaret River. His concern is predicated on the Creek being polluted with consequent impacts on fish and turtles. On the other hand he expresses less concern about drilling and rock sampling, provided that the watercourses are not polluted. Finally he expresses a generalised concern that explorers might “mess up” the country and creeks and that they should talk with the native title holders before going anywhere.
[36] The government party contends (GPCR at paras 61 and 63) that there is no evidence before the Tribunal of any sensitive geological or environmental areas in the proposed licence area or that any previous exploration has caused or involved major disturbance.
[37] The grantee party made these submissions (Gr1 at 2(c) and (d)):
“(c) … I note that Mr Kenyon expresses concern about “stuff” getting into the creek and going downstream thus killing fish and turtles. The work we intend to carry on in the area is taking soil and rock chip samples, constructing some backhoe trenches and attempting to locate minerals by way of metal detecting devices. None of those operations I describe would result in contamination of the creek in any way whatsoever to destroy fish and turtle life;
(d) In reference to paragraph 8 of the said Affidavit the total workforce in the area would at no time exceed three to four workers and whilst these workers would be taking food stuffs on to the work site, strict controls will be put in place to ensure that there would be no contamination of the site area or the adjoining creek.”
[38] In this inquiry the material before the Tribunal discloses that:
(a)this general area has been subject to exploration and mining for many years;
(b)there is no evidence of community or social activities occurring on the subject area;
(c)there is no evidence of sites of importance to native title holders on the subject area;
(d)there is no evidence that previous mining or exploration has resulted in major disturbance to the relevant land or waters;
(e)there is no evidence of any particular environmental or geological factors that would render it more likely that the proposed program of exploration activities would result in major disturbance;
(f)the proposed tenement falls wholly within a pastoral lease, and in any event the native title holders are subject to ongoing interference by the lawful activities of the pastoral holders; and
(g)the grantee party has indicated that it will be conducting exploration in a manner that will render it unlikely that there would be any pollution of watercourses or littering or contamination of the soil;
(h)the Tribunal is entitled to presume that the grantee party will act lawfully in exercising rights given under the exploration licence – see Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Deputy President Franklyn; and
Mr Kenyon does not express outright opposition to exploration. While expressing generalised concerns about environmentally unsound practices and the pollution of watercourses, he says: “They need to talk to us first, before they go anywhere on the ELA area.” The compulsory on site consultation (Condition 18 of the “Second Schedule” Conditions made pursuant to section 24A of the Mining Act) between the grantee party and registered native title claimants where concerns can be ventilated should ensure that issues such as these can be addressed and proper protocols developed.
[39] On the basis of the material presented to the Tribunal I am unable to find that the grant of the proposed tenement, or the exercise of rights pursuant to it, would be likely to involve major disturbance within the meaning of section 237(c).
Determination
The determination of the Tribunal is that the grant of Exploration Licence 10322 to Brian John Briggs and Gary Anthony Clarke is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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