Tony Kenyon Luwanbi, Gabriel Hazelbane Gulngarring & Valerie Tambling/Sirocco Resources NL/Northern Territory
[2002] NNTTA 32
•25 March 2002
NATIONAL NATIVE TITLE TRIBUNAL
Tony Kenyon Luwanbi, Gabriel Hazelbane Gulngarring & Valerie Tambling/Sirocco Resources NL/Northern Territory, [2002] NNTTA 32 (25 March 2002)
APPLICATION NO: DO01/76
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of a Future Act Determination Application
Tony Kenyon Luwanbi, Gabriel Hazelbane Gulngarring & Valerie Tambling (Native Title Party)
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Sirocco Resources NL (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: 25 March 2002
Hearing dates: 12 February 2002, 4 March 2002
Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Catchwords: Native Title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – no registered or recorded sites on proposed tenement - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation: Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
Acts Interpretation Act 1901 (Cth) – s 36
Native Title Act 1993 (Cth) – ss 29, 32, 151, 237
Cases:Ben Ward/Button Jones/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/03 and 23, Member Sosso 1 February 2002
Chubby Jones/Western Australia/Taipan Resources NL, NNTT WO99/620-622, Deputy President Franklyn, 1 November 2000
Evans/Western Australia/Mount Margaret Nickel, NNTT WO01/145, Deputy President Franklyn, 5 December 2001
Little v Western Australia [2001] FCA 1706
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory NNTT DO01/13, Member Sosso, 1 February 2002
Page/Arafura Resources NL/Northern Territory NNTT DO01/21, Member Sosso, 1 February 2002
Western Australia v Smith (2000) 163 FLR 32
REASONS FOR DETERMINATION
Background
[1] On 2 May 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 10368 (“the proposed tenement”) to Sirocco Resources NL (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 8 blocks (26.7 square kilometres) and is located wholly within Pastoral Lease (PL) 1164 which is known as “McKinlay River”.
[3] On 22 December 2000, a native title determination application was filed with the Federal Court (D6033/00) and was entered on the Register of Native Title Claims on 15 February 2001. The name given to this application is “Old Mount Bundey”, and the applicants are Valerie Tambling, Tony Kenyon Luwanbi, and Gabriel Hazelbane Gulngarring. The Old Mount Bundey application wholly covers the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 3 September 2001. Technically this was more than four months after the section 29(4) notification day of 2 May 2001 (section 32(3)). However 2 September 2001 was a Sunday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
The named Objectors, Tony Kenyon Luwanbi, Gabriel Hazelbane Gulngarring and Valerie Tambling, are also the applicants named above.
[5] On 7 September 2001 Deputy President Sumner issued Directions for the conduct of the Inquiry which were later amended on 5 November 2001. The various contentions made by the parties have been pursuant to those Directions. A preliminary conference of the parties was convened on 1 October 2001 and on 5 November 2001 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. Following my appointment listings hearings were convened on 12 February and 4 March 2002, and on these dates I made further Directions for the supply of material in this inquiry.
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. In this instance, having regard to the material before the Tribunal, and the requirements of section 151(2), I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.
[7] The parties have submitted to the Tribunal extensive written contentions, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC”) dated 12 December 2001
Contentions in Reply (“GPCR”) dated 4 March 2002
Native Title Party Contentions
Response to Tribunal Matters (“ORTM”) dated 5 December 2001
Statement of Contentions of Objectors (“OSC”) dated 21 December 2001
Objectors’ Reply to Contentions of Government Party (“OCR”) 12 February 2002
Grantee Party Contentions
Statement of Contentions of Grantee Party (“Gr1”) dated 21 December 2001
Grantee Party Reply to Contentions of Objector (“Gr2”) dated 8 February 2002
Evidence
Witness Statement of Tony Kenyon Luwanbi
[8] In addition to the above contentions the native title party also submitted a Witness Statement of Mr Tony Luwanbi dated 21 December 2001. The native title party did not adduce any other evidence from any other objector, or indeed any other member of the native title claim group. Mr Luwanbi’s Witness Statement, which was witnessed by Ms Amy Townsend, a Commissioner for Oaths, is set out below:
“1.I am an applicant in the Old Mount Bundey native title determination application (DC01/31), on behalf of the Warai People. I object to the Government’s statement that the expedited procedure applies to the grant of ELA 10368
2. The area of the application includes the area of ELA 10368. I have seen a map of the area of the ELA. Now produced and shown to me marked “TK-10368” is a map of the ELA and the surrounding area.
3. I live at Waruk, near Humpty Doo in the Northern Territory. I have lived there for over 20 years.
4. I grew up at Old Mount Bundey Outstation north of ELA 10368. I lived there with my father George Luwanbi.
5. There are no sites on this ELA but my father took me to that Muduk site near the ELA. I could not go right up to that site because it is a ceremony place and I was a boy of 9 or 10 years of age at the time.
6. I used to travel all through Old Mount Bundey, McKinlay River and Deepwater before they were all stations. I used to travel around with my father and with the buffalo shooters Fred Hardy and Bill White. We used to go shooting buffalo using horses, wagons and sometimes with old Bill White’s army Blitz truck.
7. We used all the old roads through area including those going through ELA 10368. We used the roads that join Anaburroo, McKinlay River and Deepwater stations.
8. Other times I used to go footwalking and hunting all through the area with my father including inside the ELA area.
9. Nowadays we can’t go out there, all the roads are fenced off with “Private Property” signs. If we can work it out with the pastoralist mob, we’d like to go back out there and take the grandchildren to show them their country and go hunting. Last time I went there was about six years ago with Aboriginal Areas Protection Authority mob with a helicopter doing sacred site survey.
10. The ELA area is good country for hunting and bushtucker: kangaroo, porcupine, two types of sugarbag – ground one and tree one, cheeky yam in flat country, turtle, yabbies, bowitch (round yam), green plum, black plum, billygoat plum, wild sugar cane.
11. We want to keep that area clean for all that bushtucker so that our grandchildren can go back there.
12. We’re worried about that exploration business making mess on that country. If that area gets polluted, that rubbish might wash right through to the McKinlay River. Dust or poison might get into the river. It might spoil the country and kill the trees and all that. It might kill the small fish and the large fish at small waterholes and maybe turtles. In the wet the river is much bigger and joins up with the Mary River. We’ve got sacred sites down on the Mary River and they might get affected.
13. If they set up camps on that country its alright, but we need to stop them going near that Muduk place – they musn’t (sic) go there. They should talk to us before they go anywhere in that country.”
Aboriginal Communities
[9] The evidence before the Tribunal discloses that there are no Aboriginal communities situated within the area of the proposed tenement. The native title party refers (OSC at para 38) to Aboriginal communities at Waruk and Annaburoo, but as the government party has highlighted (GPCR at para 53), no distances are stated. Mapping provided by the government party indicates that “Wairuk” is situated approximately 50 km north west of the proposed tenement. In addition approximately 15km north east of the proposed tenement there is an “Annaburroo Billabong”, and it may be that in this general area the “Annaburoo” community is located. Nevertheless the Tribunal has no specific evidence from the native title party about:
(a)the distance from the proposed tenement to these communities;
(b) the size of the communities; and
(c)the persons residing in these communities, and their relationship to the native title claim group.
Recorded or Registered Sites
[10] There is no evidence before the Tribunal of the existence of any recorded or registered site within the area of the proposed tenement. The only site in the vicinity, and one which is referred to by the native title party, is a recorded site called “Muduk”. It is situated approximately 3.5 kilometres south east of the proposed tenement.
Previous Exploration Activity
[11] The area of the proposed tenement has been subject to a number of previous exploration and mining grants by the Northern Territory over the past 25 years. Outlined below are details of previous mining and exploration tenements as supplied by the government party:
Exploration Licence (EL): 142, 1291, 1653, 2362, 3121, 3298, 4227, 5008, 5346, 5942, 6922, 7166, 7569, 7750, 7856 and 8703.
Mineral Claim (Northern) (MCN): 2110 and 2111.
Substitute Exploration Licence (SEL): 7389 and 8019.
[12] The area to the immediate north and north west of the proposed tenement has been the subject of a number of granted exploration licences and substitute exploration licences. Existing mining tenements in the immediate vicinity of the proposed tenement are as follows:
EL: 8243, 8508, 8702, 9154, 9196, 9346, 9583 and 9594.
SEL: 22183 and 23200.
There also would appear to be a number of mining tenements (other than exploration licences and substitute exploration licences) which have been granted in the area to the immediate north of the proposed tenement and in the general vicinity of EL 8508 and SEL 23200. Unfortunately the government party has not provided the Tribunal with any information on these tenements.
[13] The Tribunal does not have any evidence before it on the extent to which previous exploration licences and other tenements resulted in actual exploration activity, or the nature of that exploration activity.
Nature of the Proposed Exploration Activity
[14] The government party submitted into evidence a copy of the grantee party’s Application for the Grant of an Exploration Licence. In that document the grantee party discloses that the proposed program of action for the first year will include: data acquisition and review, data entry, broad regional mapping, rock chip sampling and power auger soil sampling over trends and contracts. Work detail for subsequent years was as follows: “Work during subsequent years will be dependent upon results but will probably include more detailed geological mapping and RAB or RC drilling depending on the grade of the anomaly.”
Expert Evidence Adduced by the native title party
[15] In addition to the Witness Statement of Mr Luwanbi, the native title party lodged an Affidavit by Mr Jeffrey John Wilson Stead, who is the Manager Anthropological for the Northern Land Council. This Affidavit has been routinely submitted on behalf of native title parties in those Northern Territory expedited procedure objection inquiries I have conducted. Mr Stead deposed that he thought it unlikely that the Register of Sacred Sites kept by the Aboriginal areas Protection Authority (“AAPA”) would be accurate or complete for all of the sites or areas of significance within the area. He indicated that the only way that a site becomes registered is if an area has been surveyed, and this usually only occurs if some development or mining occurs in the area. He also suggested that the risk of desecration to an area or site had to be extreme and immediate before Aboriginal People will look for protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
[16] While in most inquiries I have conducted, I have found the evidence given by Mr Stead to be of assistance, in this matter it is of limited utility. The Tribunal in this inquiry has been presented with scant evidence on sites of significance. While the expert testimony of a person such as Mr Stead can supplement and put into a broader context the primary evidence given by native title holders, it can never be a substitute for it.
[17] In this matter there is evidence of considerable exploration and mining activity in the immediate vicinity of the tenement. Even if one accepts that the Register of Sacred Sites may be inadequate in some circumstances, there is nothing before me to indicate that any such problems exist in this particular area. There is no suggestion from the native title party that there are sites or areas of particular significance that have not been recorded or registered by the AAPA. There is no suggestion that the particular recorded site (Muduk) located outside of the area of the proposed tenement has been mis-recorded. In short, the evidence of Mr Stead in this matter leads the Tribunal nowhere and does not assist the native title party with its specific submissions on the importance of Muduk.
Legal Principles
[18] 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.
[19] 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
[20] The evidence before the Tribunal is that there are no Aboriginal communities living on the area of the proposed tenement. While the native title party has referred to Aboriginal communities located outside the area of the proposed tenement, no evidence was presented by the native title party on how far distant they are. Certainly what little evidence there is seems to indicate that they are not in close proximity to the area of the proposed exploration licence. For example, Mr Luwanbi deposes that he lives at “Waruk” which he describes as near Humpty Doo, which is more than 50 km from the area of the proposed tenement.
[21] The only material presented regarding community or social activities on or near the proposed tenement is limited to Mr Luwanbi’s statements that he used to travel through Old Mount Bundey, McKinlay River and Deepwater, before they were stations, while hunting buffalo, and that at other times he would go footwalking and hunting with his father all through the area of the proposed tenement.
[22] However, Mr Luwanbi deposes that the last time he visited the area was six years ago, when he accompanied AAPA personnel who were conducting a sacred site survey by helicopter. Apart from observing the area by helicopter, Mr Luwanbi deposes that he has not physically visited the tenement area for some time as it has been fenced off and has “Private Property” signs.
[23] Despite this Mr Luwanbi deposes that the area is good for hunting and bush tucker, and that he is desirous of keeping the country “clean” so that his grandchildren can go back there.
[24] The government party produced extensive contentions on section 237(a), and, in particular specific responses to those matters put forward by the native title party – see GPCR paras 51-60. The contentions of the government party are soundly based.
[25] The Tribunal has been presented with no evidence of current community or social activities. The evidence adduced of such activities is limited and historical. There is no suggestion that native title holders have visited the area of the proposed tenement for a number of years.
[26] I have no reason to doubt that this lack of physical interaction with the tenement area is due to the area being fenced off. If that is the case, then this would be consistent with the conclusion that there are no extant community or social activities being carried on the proposed tenement. In fact the clear purport of Mr Luwanbi’s evidence is that this area has not been visited by native title holders for many years. Certainly the last time that he visited the site would appear to be quite some years ago when he was buffalo hunting.
[27] It also has to be borne in mind that the area immediately surrounding the proposed tenement has been the subject of the grant of numerous mining tenements. In the past the Tribunal has taken into account the fact that a proposed tenement is located within an area of high activity mining/exploration. Depending on the evidence before the Tribunal, this has led, for example, to the assumption that the land in question has already been substantially disturbed, and thus is unlikely to be particularly productive for hunting (see Evans/Western Australia/Mount Margaret Nickel WO01/145, unreported, Deputy President Franklyn 5 December 2001 at [10]), or that mining exploration has not resulted in a major disturbance to the community or social activities of native title holders (Page/Arafura Resources NL/Northern Territory DO01/21, unreported, Member Sosso, 1 February 2002 at [38]).
[28] In this case, having regard to the dearth of any relevant and recent evidence of community or social activities on or near the proposed tenement, it is neither necessary nor possible, to draw any assumptions concerning the land or waters in question, as there is no evidence that the land or waters concerned are being used, or have been used in recent times, by native title holders for any form of social or community activity. This is an instance where not only is the evidence before the Tribunal scant, but what evidence there is, points quite clearly to a state of affairs where, due to factors outside the control of native title holders, there is no ongoing intersection between their physical activities and the land and waters the subject of the proposed tenement. In these circumstances it is irrelevant whether the land in question is undisturbed, and thus fertile grounds for hunting and gathering bush tucker, or not. The fact of the matter is that, on the evidence before the Tribunal, the land and waters, whether they be in pristine condition or be grossly disturbed, are not visited or utilised by native title holders. It would appear that any evidence presented about these land or waters is historical or speculative.
[29] In these circumstances, I am of the view that there is insufficient specific and relevant evidence to enable me to find that there is a real chance that the grant of the proposed tenement will directly interfere with the carrying on of community or social activities of native title holders.
Section 237(b) – Areas or sites of particular significance
[30] There is no evidence before the Tribunal that there are any sites or areas of particular significance located on the area of the proposed tenement. Maps produced by the government party disclosed that no sacred site has been recorded or registered in the area of the proposed tenement. In addition, the only evidence produced by the native title party, namely that of Mr Luwanbi is that “there are no sites on this ELA” (paragraph 5).
[31] If an area or site is not disclosed to the Tribunal, then there is no scope for an inquiry pursuant to section 237(b). As Deputy President Franklyn said in Chubby Jones/Western Australia/Taipan Resources NL WO99/621-622, unreported, 1 November 2000 (at p.9): “No question can arise as to the likelihood or otherwise of interference of such a site unless there is evidence of its existence.”
[32] Nonetheless, Mr Luwanbi did refer to the Muduk site near the proposed tenement. He deposed that he visited the site when he was a boy of nine or ten, and that he did not go right up to the site because it was a ceremony place.
[33] Materials before the Tribunal disclose that the Muduk site has been recorded by the AAPA. It is a large stone circle approximately 14 metres in diameter. This description is consistent with Mr Luwanbi’s statement that it was a ceremony place.
[34] There are a number of serious deficiencies with the evidence of the native title party about the relevance and significance of this particular site, namely:
(a)Mr Luwanbi’s evidence is that he only visited it once when he was a boy;
(b)Mr Luwanbi’s evidence is consistent with the view that he has never himself practised any ceremonies on the site;
(c)There is no evidence as to whether any ceremonies in recent times have occurred at Muduk;
(d)There is no evidence as to whether the site is visited by native title holders;
(e)There is no evidence about the importance or otherwise of the site to the native title holders;
(f)There is no evidence of the place that this site plays in the traditions of the native title holders.
[35] Apart from all of the above issues, the Tribunal has also not been informed of the status of Mr Luwanbi to speak on behalf of Muduk. In this regard reference can be made to the following observations of R D Nicholson J in Little v Western Australia [2001] FCA 1706 (at paras 78-79):
“78 In relation to “areas” and turning to the affidavit of Mr Bynder, that is an affidavit which suggests there is a sacred quality attached to the entirety of Lake Moore. For the Grantee it is submitted that for three reasons it could not reasonably form the basis of a conclusion by the Tribunal that the grant of the exploration licences would be likely to interfere with areas or sites of particular significance, in accordance with the traditions of the applicants for several reasons. The first is that Mr Bynder fails to establish that he is properly qualified to speak about the applicants’ traditions in relation to areas or sites of significance. The scope of his evidence is that he is able to narrate a dreaming story. He does not say he holds any particular position within the community of the Badimia people or that he has actively maintained his contact with this community and its traditions. Secondly, he asserts that Lake Moore is sacred but does not identify the nature of its sacred quality and what this requires. It is submitted that without knowing this it would be impossible for the Tribunal to have drawn any conclusions as to whether exploration activities would be likely to interfere with that sacredness. Thirdly, he does not address whether Lake Moore is of “particular” significance.
79 As to the first point, it is the case that Mr Bynder does not establish his qualifications to speak for the Badimia people so that his evidence has the weight of one Badimia person. Similarly, as to the third point, I consider a fair reading of the affidavit does arguably show that Lake Moore is of “particular” significance to Mr Bynder but not for the Badimia people generally. Concerning the second point, I proceed on the assumption that spiritual attachment to land cannot presently be excluded as an element of tradition in relation to an area. However the evidence of Mr Bynder does not go to the nature of the sacredness so that it is not evidence on which a Tribunal could arguably reach a conclusion about likelihood of a real chance or risk of interference, even more so in the absence of any qualification of witness as a spokesman for the area. Mr Robinson’s affidavit would not have strengthened the applicant’s case further in these respects. It follows that even if the further evidence had been admitted it would not have assisted in establishing the ground under s 237(b)”
[36] In short the Tribunal has very little before it about this site other than the passing reference of Mr Luwanbi. While the native title party has attempted to craft from this scant material an impressive argument about the alleged significance of Muduk (see OSC at paras 49 to 67), it is not sufficient.
[37] Even if the Tribunal was to accept that Muduk is a site or particular significance, there still is an array of problems for the native title party. Firstly, Muduk is not located on the proposed tenement. While this is not fatal, I have previously determined that in such an event an objector relying on section 237(b) should demonstrate how the area or site will be directly and physically affected by the proposed exploration activities, whether they be on or off site – see Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/03, 1 February 2002 at [89].
[38] The government party contends that this nexus has not been established in this inquiry – GPCR at para 61. Further the government party argued (at para 64): “The materials posited by the Objector simply do not establish the how, when, where and why the interference to the Muduk site is likely to occur.”
[39] The native title party has drawn the Tribunal’s attention to various rights which an explorer may exercise under an exploration licence which are not limited to the area of the licence. In this respect the native title party contended (OCR at para 28): “For instance, the licence holder has the right to construct a right of way from a road, by the shortest practicable route to the licence area [ss179(1) Mining Act]. Such an exercise can interfere with areas or sites both on and off the area subject to the exploration licence.”
[40] Accordingly, while the native title party refers in general terms to the potential exercise of legal rights granted to an explorer, it has not presented any evidence that there is any real likelihood that, if the exploration licence is granted, the grantee party’s activities will or will be likely to interfere with Muduk either directly or indirectly. In short there is no material of any nature before this Tribunal that the exploration activities proposed by the grantee party will have any impact on Muduk.
[41] Secondly, even if there was some evidence of a nexus between the exercise of rights under an exploration licence, and possible interference with Muduk, there is ample evidence before the Tribunal of a range of regulatory protections in force in the Northern Territory, which render it unlikely that a sacred site recorded by the AAPA would be interfered with. The Tribunal is entitled, unless there be some evidence to the contrary, to apply the presumption of regularity. This was explained by Deputy President Franklyn in Western Australia v Smith (2000) 163 FLR 32 (at 51-52) as follows:
“In my opinion, in the absence of evidence to the contrary, it would be improper to assume that, in exercising the rights created by the grant, the grantee would act in breach of the conditions imposed on the licence or in defiance of the various statutes and regulations which apply in respect of and would restrict any such statute or rights. Nor should it be assumed that those empowered by any statute or regulation to exercise discretion in the manner or extent of the exercise of all or any such rights would not act properly within the boundaries of the discretion. The presumption of regularity must prevail in the absence of evidence to the contrary.”
[42] Finally, the Tribunal has been presented with detailed contentions by the grantee party on each of the section 237 criteria. With respect to section 237(b) the grantee party made these submissions (Gr1):
“INTERFERENCE WITH SITES OF SIGNIFICANCE
The Grantee Party has a policy of undertaking a Sacred Sites Clearance Survey by the Northern Territory Aboriginal Areas Protection Authority (AAPA) before undertaking any exploration activity on ELA 10368 which activates the “substantial disturbance” provisions of the Northern Territory Mining Act (Section 24 (e)). The Grantee Party understands that AAPA liaises closely with the local Land Council, and utilises the services of local Aboriginal elders, to effect such surveys.
The Grantee Party has a policy to inspect the Register of Sacred Sites at AAPA before undertaking any non-intrusive exploration activity which does not activate the substantial disturbance provisions of the Northern Territory Mining Act to ensure that maximum protection is afforded to all registered and recorded sacred sites.
According to the map which accompanies the Statement of Contentions by the Government Party, there are no recorded Sacred Sites located in the area of ELA 10368.
The Grantee Party contends that the procedures it will put in place will ensure that the grant of ELA 10368 and subsequent exploration in the area of ELA 10368 are not likely to interfere with areas or sites of particular significance to native title holders.”
[43] When conducting an expedited procedure objection inquiry, the Tribunal is permitted to take into consideration, evidence of a grantee party’s work practice as far as it relates to relevant matters. In the past, Tribunal Members have taken into consideration for example, evidence adduced by a grantee party, that it will not conduct field work until a work program clearance heritage survey is conducted – see Ben Ward/Button Jones/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/03 and 23, unreported, Member Sosso 1 February 2002 at [64].
[44] In this matter the grantee party has informed the Tribunal that it has a policy of undertaking a sacred sites clearance survey, of inspecting the Register of Sacred Sites before undertaking exploration activity, and contends that the procedures it will put in place will ensure that its exploration activities will not be likely to interfere with areas or sites of particular significance.
[45] It is of interest that the grantee party’s contentions did not directly canvass the issue of Muduk. It may be that the grantee party did not assume that its activities would be likely to interfere with this site.
[46] Overall then:
(a)there are no areas or sites of particular significance on the proposed tenement;
(b)there is no evidence directed towards the issue of whether Muduk is a site of particular significance;
(c)it is unclear what is the status of Mr Luwanbi to speak on behalf of Muduk;
(d)there is no specific evidence that the grant of the exploration licence would be likely to directly interfere with Muduk;
(e)there is no evidence which would displace the presumption of regularity; and
(f)the Tribunal has specific evidence of the intentions and work practices of the grantee party which would suggest it is unlikely that Muduk will be directly interfered with.
Consequently there is no evidence before the Tribunal that the grant of the exploration licence would be likely to interfere with any areas or sites of particular significance to native title holders, in accordance with their traditions.
Section 237(c) – Major disturbance to land or waters
[47] The evidence before the Tribunal indicates that the proposed tenement has been the subject of numerous grants of exploration licences over a number of years. While the government party did not provide the Tribunal with detailed information on whether those grants actually resulted in exploration activity, there is evidence that the area immediately to the north of the proposed tenement is the subject not only of numerous applications for exploration licences, but also existing exploration licences and other unspecified mining tenements.
[48] The grantee party submitted (Gr1) that it will abide by the conditions which attach to exploration licences and in addition will conduct its exploration activities in accordance with the Code of Conduct for Mineral Explorers in the Northern Territory.
[49] The Tribunal has not been presented with any evidence that previous exploration or mining activity on or in the vicinity of the proposed tenement has resulted in disturbance to any land or waters. Certainly Mr Luwanbi deposed that he was concerned that exploration activity might result in pollution of the rivers and waterholes, general despoiling of the land (he refers to the destruction of trees) and the death of wildlife (fish and turtles). However these concerns were, apparently, not based on any previous incidents on the proposed tenement by previous mining activity. If they were, then the Tribunal was not provided with any material to that effect.
[50] Mr Luwanbi also indicated that he did not oppose the setting up of camps on the area of the tenement, but clearly he did not want the explorers to approach Muduk. It would appear that Mr Luwanbi is not opposed to exploration activity per se, provided that it does not result in Muduk being approached or environmentally regressive activities being practised.
[51] In this inquiry no evidence has been led of areas within the proposed tenement comporising sensitive geological formations or which are fragile and important environmentally. In addition, there is no evidence of any Aboriginal communities on or near the proposed tenement, or community or social activities occurring on or near the proposed tenement. Moreover consideration also has to be given to the fact that this area is part of a pastoral lease and subject to the concurrent lawful activities of the grantee of the pastoral lease. In short the land and waters concerned are subject to ongoing disturbance by the lawful activities of pastoralists.
[52] The Tribunal was also presented with a large body of evidence from the government party on the legal regime governing the exercise of rights by explorers. In previous inquiries I have set out at length the nature of this evidence, however for the purposes of this inquiry I simply note that I have considered this evidence and it has been taken into account.
[53] When considering section 237(c) it must be always borne in mind that the future act in question or the exercise of rights granted by an exploration licence will be likely to involve disturbance to some land or waters. If there was no likelihood of disturbance then there would be no need for an inquiry pursuant to this paragraph. Accordingly the starting point of any inquiry into section 237(c) must be that the act in question will, or may lead, to disturbance of land or waters. The critical issue is not the likelihood of disturbance, but the nature and degree of such disturbance. More particularly, it is likelihood of major disturbance, as that term has been explained by the Federal Court: see also Chubby Jones/Western Australia/Taipan Resources NL WO99/620-622, unreported, Deputy President Franklyn, 1 November 2000 at 10.
[54] In this context the following contentions of the government party are apposite (GPCR at paras 74-75):
“74. The state of the evidence simply does not establish how, where and why a major disturbance is likely to occur to any land or waters concerned. The concern expressed in the affidavit of Mr Luwanbi relate to the killing of fish and polluting of watercourses. This may be a sincere expression of concern but it cannot be regarded as substantive evidence as these concerns are highly speculative if both parties act lawfully. Please refer to relevant Second Schedule Conditions.
75. The Government Party iterates its contention that, taking into account:
(i) the absence of evidence of apprehended major disturbance;
(ii) the overall regulatory scheme which governs the exercise of the rights under the grant;
(iii) the additional statutory checkpoint which seeks to prevent and/or remedy any potential substantial disturbance, including by attaching remedial conditions: and
(iv) the statutory requirement that productive mining activities need proceed through a completely
independent future act process under the NTA than that for exploration activities,
the Tribunal will conclude that the grant of the proposed licence does not 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.”
[55] In conclusion, the Tribunal does not have before it material that would sustain a finding that the grant of the proposed tenement is likely to involve major disturbance to any land or waters concerned or create rights the exercise of which is likely to involve major disturbance to any land or waters concerned.
Determination
The determination of the Tribunal is that the grant of Exploration Licence ELA 10368 to Sirocco Resources NL is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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