Valerie Tambling, Tony Kenyon Luwanbi and Gabriel Hazelbane Gulngarring/Sirocco Resources NL/Northern Territory
[2002] NNTTA 218
•11 October 2002
NATIONAL NATIVE TITLE TRIBUNAL
Valerie Tambling, Tony Kenyon Luwanbi and Gabriel Hazelbane Gulngarring/Sirocco Resources NL/Northern Territory, [2002] NNTTA 218 (11 October 2002)
APPLICATION NOS: DO 02/33 and DO 02/37
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an Inquiry into Expedited Procedure Objection Applications
VALERIE TAMBLING, TONY KENYON LUWANBI, AND GABRIEL HAZELBANE GULNGARRING (native title party)
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SIROCCO RESOURCES NL (grantee party)
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NORTHERN TERRITORY OF AUSTRALIA (government party)
INQUIRY INTO EXPEDITED PROCEDURE OBJECTION APPLICATIONS
Tribunal: John Sosso
Place: Brisbane
Date: 11 October 2002
Hearing dates: 11 July 2002
Government Party: Mr Matthew Storey, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Ross McColl
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application - parties contentions – Land Claim Report – Aboriginal communities – recorded or registered sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – whether act interferes with areas and sites of particular significance – no likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation: Mining Act (NT) ss 24, 24A, 166
Mining Management Act (NT) Parts 3, 4
Native Title Act 1993 (Cth) ss 29, 32, 44H, 151, 237
Northern Territory Aboriginal Sacred Sites Act (NT) ss 33, 34, 35, 36, 37
Cases:Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern TerritoryDO01/47, unreported, Member Williamson, 5 August 2002
Angus Riley and May Foster/Northern Territory/Rodney Johnston andMotoo 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
Kathleen Parry & Ors/Troy Resources NL/Northern Territory DO01/84, unreported, Member Sosso, 24 May 2002
May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, Member Sosso, 5 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
Sandy Limmen & Ors on behalf of the Alawa, Marra and Nganji People/Astro Mining NL/Northern Territory DO01/116, unreported, Member Stuckey-Clarke, 30 August 2002
Smith v Western Australia (2001) 108 FCR 442
Victor Groves & Ors/Exploration & Resource Development Pty Ltd/Northern Territory DO01/127-129, unreported, Member Sosso, 13 September 2002
Violet Drury & Ors on behalf of the Nanda People/Western Australia/Bywood Holdings Pty Ltd, WO01/111, unreported, Deputy President Franklyn, 20 August 2002
Western Australia v Smith (2000) 163 FLR 32
Wik Peoples v Queensland (1996) 187 CLR 1
William Risk & Anor/Corporate Developments Pty Ltd/Northern Territory,DO01/77, unreported, 15 April 2002, Member Sosso
REASONS FOR DETERMINATION
Background
[1] On 31 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 Licences 22206 and 10367 (“the proposed tenements”) to Sirocco Resources NL (“the grantee party”) and included a statement that it considered these acts attracted the expedited procedure.
[2] ELA 22206 covers an area of 2 blocks (approximately 7 square kilometres) and ELA 10367 covers an area of 5 blocks (approximately 17 square kilometres). Both tenements are located within Perpetual Pastoral Lease (PPL) 1163 which is known as “Old Mount Bundey” and a small portion in the central south of ELA 10367 is located within Perpetual Pastoral Lease (PPL) 1164 known as “McKinlay River”.
[3] On 22 December 2000 a native title determination application was filed with the Federal Court (D6033/00). The name given to this application is “Old Mount Bundey”, and the Applicants are Valerie Tambling, Tony Kenyon Luwanbi and Gabriel Hazelbane Gulngarring. The application was entered on the Register of Native Title Claims on 15 February 2001. All of the land and waters comprising each of the proposed tenements falls within the Old Mount Bundey application.
[4] In both matters, a Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 28 February 2002 which was within four months of the section 29(4) notification day of 31 October 2001 – section 32(3). The Objectors, are also the Applicants named above.
[5] On 7 March 2002 (DO 02/37) and 11 March 2002 (DO 02/33), Deputy President Sumner directed that I constitute the Tribunal for the purpose of the inquiry into each of these expedited procedure objection applications and on 11 March 2002 Directions were issued for the conduct of the matters. The various contentions made by the parties have been pursuant to those Directions and subsequent variations. A Listings Hearing for both matters was convened on 11 July 2002.
[6] There was no application by any party that these matters 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] In each objection, the parties have submitted to the Tribunal written contentions. When a reference is made to Contentions lodged with respect to a particular objection, the identification of the objection will be included in the citation. For ease of reference, the various Contentions are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 20 June 2002
Contentions in Reply (“GPCR”) dated 10 July 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 24 June 2002
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 10 July 2002
Grantee Party Contentions
Grantee Party’s Contentions (“Gr1”) dated 3 July 2002
Grantee Party’s Contentions in Reply (“Gr2”) dated 9 July 2002
Evidence
[8] In addition to the written contentions, the native title party lodged Affidavits of Mr Tony Kenyon (Luwanbi). Mr Kenyon (Luwanbi) printed his name on both Affidavits as “Tony Kenyon”, and for the purposes of this matter he is referred to hereafter in that fashion. The Affidavits were affirmed on 1 June 2002 before Mark Rumler, a Commissioner for Oaths. The Affidavits are set out below:
Tony Kenyon (DO 02/33)
“1. I am a member of the native title claim group in the Old Mount Bundey native title determination application (DC 00/31). I am an applicant in that application. I am Warai.
2. I live at Waruk, near Humpty Doo in the Northern Territory. I have lived there for over 20 years.
3. The area of the application includes the area of ELA 22206. 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 22206” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
4. I know the country on the ELA. I used to hunt through that country. I used to walk past it when I was a small boy. The ELA area is less than 30 kilometres from Waruk.
5. I used to stay at Old Mount Bundey Outstation, near the ELA area when I was a small boy. I can’t go hunting there now: they’ve got cattle and a fence.
6. AAPA site 5272-41 is Durrudt, the Wild Dog Dreaming site, near the Goanna Park area. The place is those boulders. They are part of the site. The site runs for a hundred metres along the road, and comes out from the road too. The road goes through the middle. The Dog Dreaming is about half a mile around. There are rocks everywhere. Them boulders are on both sides. On the AAPA map the site is just a dot but really him bigger and might be goes right into the ELA area. I looked at it the year before last.
7. It is a dog. It climbed on top of that hill. It used to walk from Goanna Park, and get water along the hill. When it went back, it made poo: all that rock. It is an important place for woman.
8. They can’t cut into that site, into the boulders and that ground around them. If they do, they will spoil the country, make them wild dogs dangerous; they might find anybody and kill him. If you damage the area, a wild dog might kill you when you go there by yourself. It shouldn’t be happening. If you do a wrong thing, it is a bad place.
9. If they do that I reckon it is really bad. Cutting the rock is pushing away the Dreaming. If anybody is walking around, it might be that the dog is going to kill him.
10. The boulders are from where the dog was going to the toilet round there. The dog used to dig up that country looking for water.
11. The Dog Dreaming: if you damage that rock, you’ll get bitten by a wild dingo. If one fellow comes, a big mob will come. They’ll kill you.
12. The ELA area has creeks, like Mount Bundey Creek, that run into the Mary River and Hardies Creek. If that area gets polluted, that rubbish might wash right through to those big rivers. It will probably kill everything. In the wet the river is bigger. I am worried about stuff getting into the creek and going downstream. I am worried about them killing the fish and the turtle downstream. They might spoil the country too.
13. The Exploration Company might prevent us accessing areas, might mess up our country and all the creeks. The company needs to talk to us first, because they might destroy our sites. They should talk to us before they go anywhere.
14. The company has got to talk to us first, especially because of that Durrudt. It is a very important area. It is Dog Dreaming.
15. I have stopped people drilling into a site before. Near Hayes Creek is Union Reef Mine. The country round there belongs to Hazelbane mob. There is a Dog Dreaming there in that country, that belongs to Warai women. My grandmother told me. If anyone touches one big hill there, a wild dog comes out.
16. That’s what happened. They were using a drill to drill a hole into that hill. It would probably kill the people working there, if they damaged that place. I went there with Dave Ritchie from AAPA. I told them not to drill a hole into that hill.
Tony Kenyon (DO 02/37)
“1. I am a member of the native title claim group in the Old Mount Bundey native title determination application (DC 00/31). I am an applicant in that application. I am Warai.
2. I live at Waruk, near Humpty Doo in the Northern Territory. I have lived there for over 20 years.
3. The area of the application includes the area of ELA 10367. 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 10367” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
4. I know the country on the ELA. It is Warai country. I used to stay at Old Mount Bundey Outstation, when I was a small boy. Me and my wife Joan have been out there lately, with AAPA people. We got bogged; it was too wet.
5. Not far from the ELA area is Norrganwili, an Antbed Dreaming site, and Fly Dreaming. It is on the right hand side of the track that runs through the ELA, going away from Old Mount Bundey Outstation, near Marrakai Creek. The site is not far from Stinging Billabong near the northwestern corner of the ELA. Ngorranwili (Norrganwili) is a ridge in the middle of flat country.
6. My Dad told me I was not allowed to go there. If anyone goes there, they won’t come back. The spirits will turn them into an antbed. That’s the same for everybody. The Fly might make them dizzy walking around.
7. During the War, there was a Chinaman working a gold mine there. We walked out there near the end of the War and never went back to his camp. He probably died out there. I was a little fellow then.
8. It is a big site. It is the same size as the distance from Waruk to Fogg Dam, about 6 or 7 kilometres.
9. If they do that I reckon it is really bad. Cutting the rock is pushing away the Dreaming. In the flat country, you see a big mob of red antbeds, really big tall ones.
10. If the company goes there, the people will get lost. It can’t knock the antbeds down. If they dig the antbed, or the antbed is knocked down, the spirit will finish them off. The antbed will be damaged if a truck goes too close. The driver will go into the antbed and will not be seen again. They can’t go too low in a helicopter either.
11. We don’t really go hunting there; we stay away from the sacred site. We don’t go near that place.
12. The ELA area has creeks that run into Marrakai Creek and the rivers. If that area gets polluted, that rubbish might wash right through to the big rivers. It will probably kill everything. In the wet the creeks are bigger. I am worried about stuff getting into the creeks and going downstream. I am worried about them killing the fish and the turtle downstream. They might spoil the country too.
13. The Exploration Company might prevent us accessing areas, might mess up our country and all the creeks. The company needs to talk to us first, because they might destroy our sites. They should talk to us before they go anywhere. The company has got to talk to us first, especially because of that site.
14. I have stopped people drilling into a site before. Near Hayes Creek is Union Reef Mine. The country round there belongs to Hazelbane mob. There is a Dog Dreaming there in that country, that belongs to Warai women. My grandmother told me. If anyone touches one big hill there, a wild dog comes out.
15. That’s what happened. They were using a drill to drill a hole into that hill. It would probably kill the people working there, if they damaged that place. I went there with Dave Ritchie from AAPA. I told them not to drill a hole into that hill.
[9] It will be noted that Mr Kenyon, when referring in DO02/33 to the Wild Dog Dreaming site (AAPA 5272-41 Durrudt) says that it is an important place for women (at para 7). The government party made these submissions about this aspect of the material deposed to by Mr Kenyon (GPCR DO02/33 at paras 73-77):
“73. The Objectors make reference to only one identified locality. This is Durrudt (Dadun AAPA 5272-41). An AAPA recorded location with a status of 10. The Government contends that this location cannot constitute an area or site of particular significance for the purposes of an inquiry under s 237 (b).
74. In relation to this location the only evidence relied on in relation to this point is the affidavit of Mr Kenyon and the fact of a recorded location (“a dot”) three kilometres distant from the proposed licence area. Mr Kenyon supplies no evidence that:
· The alleged site is in fact within the licence area;
· The alleged site is in fact of particular significance or that he has authority to give evidence about such significance; and,
· There is any risk of interference to the alleged site.
75. As to this first point. The location or area Mr Kenyon refers to is not marked on the map annexed to the affidavit. AAPA recorded site 5272-41 is marked on the map supplied from the AAPA. Assuming this to be the site referred to by Mr Kenyon (despite the difference in name), Mr Kenyon deposes that the site “is about half a mile around” (affidavit paragraph 6). AAPA recorded site 5272-41 is over three kilometres (approx. two miles) from the proposed licence area at the nearest point between the two.
76. Mr Kenyon states at paragraph 6 of his affidavit: “On the AAPA map the site is just a dot, but really him bigger and might be he goes right into the ELA area. I looked at it the year before last.” Mr Kenyon is clearly uncertain whether the location does in fact extend into the proposed licence area. The section 29 notice in this matter was posted in October 2001. Mr Kenyon last visited the area in 2000 (the year before last). Accordingly he appears to have no specific knowledge of the relative positions of the proposed licence area and the location. Assuming Mr Kenyon to be correct that the location is about half a mile around it is still more than two kilometres from the proposed licence area.
77. As to the second point (significance of the location). Mr Kenyon plainly states he has no authority to speak for the location because “it is an important place for women.” Mr Kenyon does not depose to having any specific authority in relation to the dog dreaming. The location has only an AAPA rating of 10 indicating it is merely recorded.”
[10] It is not contested that Mr Kenyon is both a member of the native title determination claim group and an applicant. It is also not contested that he is a Warai person. Mr Kenyon has been the primary source of evidence for the Warai People in a number of expedited procedure objection inquiries which I have conducted.
[11] The evidence supplied in objections DO02/33 and DO02/37 is broadly consistent with that provided in other objection inquiries in this region of the Northern Territory. There is no reason to doubt that he is in a position to depose to community and social activities, and, in appropriate cases, to areas or sites said to be of particular significance.
[12] The government party properly raises the issue in DO02/33 whether Mr Kenyon has the requisite authority or status to inform the Tribunal of the particular sacredness of Durrudt. It is the case that Mr Kenyon says that it is an important place for women. Obviously if this was a women’s dreaming site, then Mr Kenyon would not be in a position to speak for it. In previous inquiries the Tribunal has found that if a site is gender specific, then a properly authorised person of the appropriate gender should provide the relevant evidence to the Tribunal. In this instance, though, Mr Kenyon does not say that Durrudt is a women’s site; he merely says that it is important for women. It may well be that the site is also important for men, or for the claim group as a whole. He does not say that only women can speak for this site as he has in the past with respect to other sites in this general area. In the circumstances, I am satisfied that Mr Kenyon has the requisite authority to depose to the matters outlined in his Affidavit about Durrudt.
[13] In his Affidavit for DO02/37 Mr Kenyon discusses “Norrganwili” which is an Antbed and Fly Dreaming site. From mapping and information supplied by the AAPA this would appear to be a recorded sacred site (5172-90) which has a status of 12. It is referred to in the AAPA material as “blowfly dreaming site” and is described as “A small waterhole and anthills on the surrounding flats”
[14] The government party raised the issue of Mr Kenyon’s authority to speak on behalf of Norrganwili in the following terms (GPCR DO02/37 at para 74): “Mr Kenyon does not depose to his authority to speak for the location other than to suggest (at para 6 of his affidavit) that his father told him not to go there.”
[15] As previously noted, Mr Kenyon is both a member of the native title determination claim group as well as an applicant. Mr Kenyon does not say that this site is a women’s site, nor does he infer that he cannot speak for it. There is no evidence before the Tribunal which would cast any doubt on his authority as a senior member of the relevant claim group to have the requisite knowledge and authority to provide the evidence which is before the Tribunal. In previous inquiries Mr Kenyon has always provided direct and honest testimony about places which either he or other men cannot speak for. I have no reason to doubt (in the absence of any direct evidence to the contrary) that when he affirms in an Affidavit about a site, and does not depose that he cannot speak for it, he has the requisite knowledge and authority.
[16] Accordingly, on the material before the Tribunal, there is no reason to question Mr Kenyon’s authority to speak for Norrganwili.
Aboriginal Communities
[17] There are no Aboriginal communities on or in the vicinity of the either of the proposed tenements. The only community referred to the native title party in either case is Waruk, which is said to be less than 30 km from ELA 22206.
Recorded or Registered Sites
[18] There are no recorded or registered sites on either of the proposed tenements.
[19] There are a number of both recorded and registered sites located to the east and south-east of ELA 22206, and the native title party in DO02/33 specifically refers to AAPA 5272-41, a recorded site, spelt “Dudun” which has a status of 12. The AAPA description of this site is as follows: “Two kilometres south of Mt Bundey Creek adjacent to the Kakadu highway.” It would appear that “Dudun” is in fact the Wild Dog Dreaming site “Durrudt” described in Mr Kenyon’s Affidavit. The native title party in DO02/33 neither refers to, nor contends, that the other recorded or registered sites in this general vicinity are sites of particular significance to members of the native title determination claim group. The fact of recording or registration by the AAPA does not automatically confer on such areas or sites the status of being areas or sites of particular significance within the meaning of section 237(b). In order for such a finding to be made by the Tribunal, there must be evidence that an area or site has special or above ordinary significance to the native title holders. In the absence of such evidence it is not possible for the Tribunal to make a predictive risk assessment pursuant to section 237(b). In objection DO02/33 the absence of any evidence about the registered and recorded sites (other than Dudun) necessarily precludes consideration of those sites when making a section 237(b) assessment.
[20] There are only two sites in close proximity to ELA 10367, namely Norrganwili and Aykgurnitjjin. Aykgurnitjjin (5272-33) is a recorded site (status 12) located to the north east of the proposed tenement and approximately 3.5 km south west of Mount Bundey. It is described by the AAPA as “Two hills side by side with the spot heights of 128 and 167.”
[21] Aykgurnitjjin is not referred to by Mr Kenyon in his Affidavit and, accordingly, the Tribunal has no material before it about whether it is of any significance to members of the claim group. As discussed above, the fact that it is recorded by the AAPA does not inform the Tribunal of its sacredness (if at all) to the native title holders who have lodged an expedited procedure objection application.
Previous Exploration Activity
[22] Both of the proposed tenements are located in a region of the Northern Territory that has been the subject of intensive exploration and mining activity over many years. ELA 22206 is located approximately 9 km north of ELA 10367, and the area to the north, south, east and west of both tenements is dotted with extant exploration and mining tenements.
[23] Maps produced by the Department of Business, Industry and Resource Development indicate that both of the proposed tenements have been the subject of widespread exploration activity.
[24] ELA 10367 has been subjected to rock chip sampling, soil sampling, rotary airblast (RAB) drilling and stream sediment sampling. These activities took place between 1983 and 1999. It would appear that the northern, north-eastern and central portions of the proposed tenement have been the subject of soil sampling, with RAB drilling occurring in the central, northern and north-western sectors. Both stream sediment and rock chip sampling have mainly occurred in the western, northern and north-eastern sectors. In addition the areas immediately to the north and west of ELA 10367 have been the subject of mostly rock chip and stream sediment sampling, with soil sampling occurring just outside the northern boundary and to the north-west and south-east.
[25] ELA 22206 is likewise in an area of what appears to be intensive exploration activity. The focus of exploration on this proposed tenement has been mostly stream sediment and soil sampling, with some percussion drilling and rock chip sampling occurring in the south central and south-eastern sections. It would appear that this exploration occurred between 1986 and 1993. In addition the area to the east, west and south of ELA 22206 has been the subject of widespread stream sediment sampling and there is a band of lands to the immediate east that was subjected to intensive percussion drilling. While the land and waters comprising ELA 22206 would appear not to have been explored for as long, or with as much frequency as ELA 10367, nonetheless it can still be characterised as an area that has been the focus of significant exploration activity over an extended period of time.
[26] Outlined below are details of previous mining and exploration tenements as supplied by the government party:
ELA 22206
Authority to Prospect – AP 895, 1015, 1084, 1187, 1371, 1507, 1642, 2094.
Exploration Licence - EL 142, 1653, 4642, 4927, 6394, 7322, 7568, 8019, 8688.
In addition the following current exploration and mining tenements overlap some of the area of ELA 22206:
Exploration Licence – EL 9154, 9161 (granted in 1996 and 1995 respectively)
Mineral Lease (Northern) – MLN 1058 (granted in 1989)
ELA 10367
Authority to Prospect – AP 1371, 1427, 1507, 2094
Exploration Licence – EL 142, 1473, 1653, 2252, 3298, 4165, 4497, 5346, 5355, 5789, 5923, 5930, 6214, 6390, 7166, 7569, 7643, 8045, 8390, 8702, 9726
Substitute Exploration Licence – SEL 7389, 8019
One current exploration tenement overlaps a small segment of ELA 10367 in the south and south-west – EL 9196 (granted in 1995).
Granted Exploration and Mining Tenements in the Vicinity of ELA 10367 and 22206
[27] Both of the proposed tenements are located in an area where there are numerous extant exploration and mining tenements.
[28] ELA 10367 is adjoined on its south-eastern, southern and south-western borders by EL9196. In addition approximately 3 km to the east are the following tenements:
EL 8506;
MLN 281, 282, 283, 284, 337, 338, 339, 369, 370, 371, 372, 373; andMCN 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91.
Immediately bordering ELA 10367 on its northern and near northern boundaries are the following granted exploration and mining tenements:
EL 9154, 9346;
MCN 2671, 2672, 2673, 2674, 2675, 2676, 2677, 2678, 2679, 2680, 2681, 2682, 2683;MLN 1083.
Likewise within approximately 5 km to the south-west of ELA 10367 are a series of extant mining tenements:
MCN: 4084, 4085, 4086, 4106.
[29] ELA 22206 is likewise either bordered by, or located in close proximity to, a number of extant exploration and mining tenements.
[30] The proposed tenement is adjoined in the north and north west by EL 9154 and in the south by EL 9161. The following mining tenements are located to the east and south-east:
MCN 3333, 3334, 3335, 3336, 3337, 3338, 3339, 4517, 4518, 4519, 4952, 4954;
MLN 1058;
EMLN (Extractive Mineral Lease Northern): 46, 47, 48, 40, 51, 54, 74, 75, 76, 80; andEML (Extractive Mineral Lease): 23214.
Nature of the Proposed Exploration Activity
[31] In its respective applications for the Grant of Exploration Licences, the grantee party made the following comments about its proposed work program for the first year:
ELA 22036
“Data acquisition and review
Photo and structural interpretation
Magnetic Data Interpretation
Regional Geological Mapping
Soil and/or Rock chip sampling”
ELA 10367
“Data acquisition and review
Data Entry
Broad regional mapping
Rock chip sampling
Power auger soil sampling over trends and contacts”
[32] The grantee party also outlined the following work program for subsequent years:
ELA 22206
Work during subsequent years will be dependent upon results but will probably include RAB and/or RC drilling as required”
ELA 10367
“Work during subsequent years will be dependent upon results but will probably include more detailed geological mapping and RAB or RC drilling dependent on the grade of the anomaly.”
Expert Evidence Adduced by the native title party
[33] As well as the Affidavits 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.
[34] 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
[35] In both matters 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. It would appear that the native title party only seeks to rely on findings by His Honour in assisting in defining the context in which foraging takes place – see OSC DO02/33 at para 44a.
[36] In both instances the government party objected to reliance being place on this Report in this context. So far as is relevant the following contentions were made (GPCR DO02/33 at paras 54-55):
“54. The Government Party submits the Report provides no such assistance. The Report is out of date, and there is no reference to the individuals involved in the native title claim group at the paragraphs cited. There is no clear identification of the area involved in the activities described therein. Finally, there is a divergence between the right to forage significant to the inquiry of the Aboriginal Land Commissioner and ‘community or social activities’ significant to an inquiry under s 237(a).
55. As such the government party submits the Report is irrelevant to the current inquiry before the Tribunal.”
[37] There is considerable force in the submissions of the government party. Maurice J submitted this Report in December 1988 having heard testimony from traditional owners in December 1986. In short the evidence His Honour heard from traditional owners occurred almost 16 years ago. Moreover, the area under claim in that matter lay to the east of Mataranka whereas the proposed tenements presently under consideration are at least 300 km to the north west of the land and waters considered by Maurice J. While I appreciate that the native title party only seeks to rely on findings by His Honour for contextual reasons, nonetheless having regard to the age of the report, the extreme distance of the land and waters considered by Maurice J from the proposed tenements and the lack of any evidence of the relationship (if any) between members of the claim group and the traditional owners who gave evidence to him in 1986, I am not convinced that the Mataranka Area Land Claim Report is of any material assistance in these matters.
Legal Principles
[38] 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 (“Moses Silver”).
[39] 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
[40] The primary evidence of community and social activities on the proposed tenements has been provided by Mr Kenyon in the form of two Affidavits, both affirmed on 19 June 2002, which are in some respects, identical.
[41] With respect to ELA 22206 Mr Kenyon deposed that he used to hunt through the country forming the proposed tenement and he used to walk past it when he was a small boy. Further he says: “I can’t go hunting there now: they’ve got cattle and a fence.”
[42] Mr Kenyon deposed with respect to ELA 10367 that he used to stay at Old Mount Bundey Outstation when he was a small boy. He goes on to say: “Me and my wife Joan have been out there lately, with AAPA people. We got bogged; it was too wet.”
[43] In both matters Mr Kenyon expresses a generalised concern about exploration polluting watercourses and killing off fish and turtles. Further he outlines the spiritual landscapes of both areas and articulates various concerns about proper protocols being followed lest physical harm be visited upon those who carry out inappropriate activities.
[44] The leading decision on the proper interpretation of section 237(a) post the 1998 amendments to the Native Title Act 1993 is Smith v Western Australia (2001) 108 FCR 442. French J pointed out that the Tribunal is required to conduct a predictive assessment, and that a future act is likely to result in interference with community or social activities if it involves a real chance or risk of interference. However, the interference referred to in section 237(a) (at 451) “must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.” His Honour also said that:
“in assessing the risk of direct interference the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed act is insubstantial. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”
[45] In assessing the likelihood of the future act interfering directly with the carrying on of the community or social activities of native title holders, I have taken into account the following factors:
(a)the proposed tenements form part of Perpetual Pastoral Lease 1163 and ELA 10367 also overlaps Perpetual Pastoral Lease 1164. The licensees of those leases together with any employees or agents of the licensees have a right, pursuant to the terms of their respective leases and the law governing those leases, to carry out lawful activities. To the extent that a pastoral licensee (or persons authorised by the licensee) lawfully exercise rights granted, such activity prevails over any native title rights and interests – s 44H. Toohey J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 (at 133): “If inconsistency is held to exist between the rights and interests conferred by native title and rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.” French J highlighted in Smith v Western Australia that when assessing the risk of direct interference the Tribunal is entitled to have regard to constraints already imposed on community or social activities by third parties. In this instance the Tribunal has had regard to the fact that community or social activities on the proposed tenements by native title holders are already subject to lawful activities of the grantees of PPL 1163 and 1164;
(b)the land and waters comprising both proposed tenements, as well as the areas immediately adjacent thereto, have been the subject of extensive exploration activity for a number of years. Despite evidence being produced of the extensive nature of exploration (and mining) activity in this region, no specific evidence has been produced that such activity has in any material way, interfered with the community or social activities of the native title holders;
(c)there are no Aboriginal communities located within, or in close proximity to, the proposed tenements. Mr Kenyon deposes that he resides at Waruk, via Humpty Doo, which is approximately 30 km from the subject areas;
(d)there is scant evidence of community and social activities occurring on either of the proposed tenements, in particular:
(i)it would appear that Mr Kenyon has not physically traversed the land and waters comprising ELA 22206 for a number of years. He deposes that he can’t go hunting there because the property is fenced and that he used to walk past the subject area when he was a small boy. There is no suggestion that any other native title holder visits the land in question or that any traditional activities are engaged in on the proposed tenement. In fact the clear and unmistakable tenor of his evidence is that this area is not visited, accessed or otherwise utilised by native title holders, and that this state of affairs has existed for some time;
(ii)Mr Kenyon’s account of his access to the land and waters comprising ELA 10367 is only slightly more helpful to a section 237(a) assessment. His only reference to any recent visit to the subject land was in the context of a visit with his wife and AAPA personnel. He provides no evidence that the visit to the proposed tenement involved hunting, gathering and collection of bush tucker, social, ceremonial or teaching activities. Moreover there is no suggestion by Mr Kenyon that he has visited this area at any other recent time, or any suggestion that any other member of the claim group has visited the area for traditional purposes. In short the Tribunal has before it no primary material that indicates that these lands and waters are used by native title holders for contemporary social or community activities other than a passing reference to the site visit with AAPA personnel. Approaching Mr Kenyon’s evidence from a beneficial perspective, the most that could be inferred is that if the land and waters are used by native title holders for traditional purposes, then such use is intermittent and of marginal significance;
(iii)insofar as it is able to infer that any social or community activities are engaged in, it is not possible, on the basis of the limited evidence presented, to determine who else, apart from possibly Mr Kenyon and his wife, engage in such activities. The clear impression gleaned from the material presented in both matters is that these areas are not accessed for community or social activities by native title holders on any sort of regular basis (if at all);
(e) the regulatory regime in force in the Northern Territory contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities. In previous inquiries I have referred to the conditions imposed on grantees pursuant to section 24A of the Mining Act. I will not repeat each and every one of the relevant conditions, however I do set out the first two conditions which are of particular relevance to a section 237(a) assessment:
“1. The Licensee shall carry out its activities in such a way as to minimise any impact to any
extant native title rights and interests in the licence area, in particular, by ameliorating:
(a) any interference directly with the carrying on of community or social activities of registered native title claimants or holders;
(b) any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
2. The Licensee shall carry out is activities in such a way as to minimise the disturbance of the environment of the licence area, in particular by minimising:
(a) interference with the use of the land by other persons;
(b) the disturbance of flora, fauna and other natural resources;
(c) pollution, including soil, water and atmospheric pollution;
(d) the incidence and effects of soil erosion.”
There are other provisions in force in the Northern Territory which I have also previously outlined in other inquiries, however the cumulative effect of the various provisions in the Mining Act is such, that it is possible to infer that there is a comprehensive and well integrated legal regime which is aimed at preventing (as far as is practicable) disturbance to community or social activities by explorers. While this regime does not render otiose an assessment pursuant to section 237(a), nevertheless the existence of such a regime is an important factor to be considered when making a predictive risk assessment. In the context of the concerns raised by Mr Kenyon about exploration possibly resulting in water pollution, Condition 2(c) is of particular relevance. Further, it is open to the Tribunal when carrying out a section 237(a) to consider the spiritual implications of community or social activities. However, while the Tribunal can consider the spiritual dimension of community or social activities, to do so there must first be evidence of physical activities which there is real risk may be interfered with – see Moses Silver at [56]. In this regard I note, and agree with, the findings of Deputy President Franklyn in Violet Drury & Ors on behalf of the Nanda People/Western Australia/Bywood Holdings Pty Ltd WO01/111, unreported, 20 August 2002 at [17.1] which are consistent with my findings in Moses Silver. The evidence in both of these matters fails to disclose any physical activities on the subject land and waters, let alone any material which could then allow the Tribunal to sensibly assess the likelihood of interference with those activities. Only at this stage could the Tribunal factor in spiritual concerns. Evidence that native title holders might be upset about exploration, in the absence of a finding pursuant to either paragraphs 237(b) or (c), and absent of any evidence of physical activities pursuant to section 237(a), does not provide a platform for the Tribunal to go further. In any event, even if there were such evidence in either of these matters Condition 1(b) is directly relevant. Having regard to the scant evidence of any community or social activities and also taking into account the protective nature of Condition 1(b), I am unable to find that there is any real risk that the generalised concerns expressed by Mr Kenyon about the spiritual landscape of the subject areas would eventuate should exploration take place on either or both of the proposed tenements.;
(f) the grantee party has contended (Gr1 and Gr2) that it will give written notification to native title holders prior to the commencement of exploration and will meet with native title holders prior to work commencing to discuss the proposed exploration and where it is proposed to occur. In short, the tenor of the grantee party’s submissions is that it will comply with the relevant laws in force in the Northern Territory, and, insofar as the grantee party specifically acknowledges Mr Kenyon’s request at paragraph 13 of his Affidavits that the grantee party must talk to traditional owners first, I also infer that it will listen to, and give proper consideration, to the views and concerns of the claim group; and
(g) 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.
[46] The government party made substantially the same submissions in both matters. I set out below at some length the thrust of the government party’s contentions on section 237(a) in DO01/33 (GPCR DO02/33 at paras 62-67). I do so because those submissions have considerable weight, and I have taken them into account in making my assessment pursuant to section 237(a):
“62.Waruk is contended in Paragraph 41 of the Objectors’ Contentions as the only relevant settlement. Mr Kenyon deposes that he is a member of the relevant native title claim group and that he resides as Waruk. However Mr Kenyon does not depose to any current community or social activity on the proposed licence area. Nor does he depose to any such activity by any other resident of Waruk. Waruk is 30 kilometres distant from the proposed licence area.
63. It would require a double inference to conclude, without evidence, that the presence of a community in the very general vicinity of the proposed licence area indicated members of the native title claim group resided in that community and that those members carried out community or social activities within the proposed licence area. No evidence to support such an inference is provided.
64. There is an issue of relevance and also of particularity with Paragraph 42. If the Objectors are asking the Tribunal to conclude that the potential use by the grantee of the Arnhem Highway is an interference directly with the carrying on of the claimed activities, it is an insubstantial impact, bordering on the trivial. Trivial impacts are not within the scope of s.237 (per French J in Derrick Smith v WA at [26]). Any number of other users, Aboriginal and non-Aboriginal, can utilise these roads and unsealed tracks and any of them could potentially cut up unsealed surfaces. Such damage is unlikely to be caused by exploration activities as it would usually occur in the Wet season after the exploration field season in the Northern Territory has concluded; see Foy Transcript of 4 December 2001 at page 39.
65. As to Paragraph 43, the existence of water bodies and the assertion of their use by the Objectors does not lead to a logical inference that the grant of the proposed exploration will cause an interference with these activities.
66. As to paragraph 44, there are no community or social activities asserted by the Objectors. The Objectors contentions are forced to rely on inferences of downstream fishing from an expressed concern about downstream pollution.
67. As to Paragraphs 45 to 50 of the Objectors’ Contentions, the apprehended interference must be direct, meaning that the act must be a proximate cause of that apprehended interference, (per French J in Derrick Smith v WA at [26]). It is only if the carrying on of a community or social activity is likely to suffer a proximate impact from an exploration activity that there is interference within the meaning of paragraph 237(a). Moreover, this impact must be substantial. The materials posited by the Objectors simply do not establish the how, when, where and why a proximate and substantial impact is likely to occur.”
[47] In conclusion I am not satisfied on the material before the Tribunal with respect to both proposed tenements, and having regard to the factors outlined above, that there is any real chance or likelihood that the grant of the proposed tenements would be likely to result in direct interference within the meaning of section 237(a).
Section 237(b) – Areas or sites of particular significance
[48] In DO02/33 Mr Kenyon provided detailed evidence on the Wild Dog Dreaming site Durrudt. The description of that site, its significance and nature are set out by Mr Kenyon in his Affidavit. There is no need to repeat what he has said. The native title party submits (OSC DO02/33 at paras 52 and 53) that it is an area or site of particular significance within the meaning of section 237(b). The government party, on the other hand, contended that Mr Kenyon had no authority to speak for this site and that it only had an AAPA rating of 10.
[49] I have previously determined that Mr Kenyon does have the requisite authority to speak for this site. In addition, the fact that a site is either not recorded by the AAPA or has only a status of 10 is by no means determinative of the issue of whether or not it is a site of particular significance. It may be, for example, that a site has only recently been dealt with by the AAPA and that no substantial progress has been made on determining its status. For whatever reason, while the recording or registration of site(s) can, in appropriate matters, be of assistance to the Tribunal, it does not resolve the issue of whether a site is of particular significance.
[50] In this matter, having regard to the nature of the material before the Tribunal, I find that Durrudt is an area or site of particular significance to native title holders within the meaning of section 237(b).
[51] While Durrudt is a site of particular significance to native title holders, nonetheless it is located outside of ELA 22206. Mr Kenyon’s description of the site matches the information and mapping provided by the AAPA. Durrudt is located due east of ELA 22206 and is intersected by the Arnhem Highway. The mapping before the Tribunal from both the native title and government parties indicates that Durrudt is located approximately 3 km from ELA 22206. Mr Kenyon’s description of the site indicates that it is approximately 100m in length with a radius of approximately half a mile. If that be the case then as Durrudt is approximately 2 miles (3 km) east of the proposed tenement, there would be at least a zone of about one mile (1.6 km) from the outer extremity of the site to the eastern boundary of ELA 22206. In short, on the basis of Mr Kenyon’s evidence, there is no intersection between the site and the proposed tenement.
[52] It is not clear how the grant of ELA 22206 could be said to pose any real risk of interference with this site. The grant of the exploration licence will not allow the grantee party to engage in exploration activities on or near to this site. Mr Kenyon’s concern that explorers “can’t cut into that site, into the boulders and that ground around them” while totally understandable, does not arise so far as the grant of this tenement is concerned.
[53] I have previously determined that areas or sites within the meaning of section 237(b) do not have to be located within the boundaries of a proposed tenement. In Moses Silver I made the following observations (at [89]):
“[89] The native title party also contended that the areas or sites do not have to be in the proposed tenement area. This contention is soundly based, however, as the government party highlights, if an area or site of particular significance is not located on the proposed tenement, then if paragraph (b) is being relied upon by an objector, that objector should demonstrate how that area or site will be directly and physically affected by exploration activities. Those exploration activities could be either on or off site, but obviously if they are off site, then the objector would need to demonstrate that those activities are in fact an integral part of the activities on site (eg. construction of roads, truck movements to and from the proposed tenement etc).”
See also William Risk & Anor/Corporate Developments Pty Ltd/Northern Territory DO01/77, unreported, Member Sosso, 15 April 2002 at [59] and Kathleen Parry & Ors/Troy Resources NL/Northern Territory DO01/84, unreported, Member Sosso, 24 May 2002.
[54] Accordingly, when undertaking a section 237(b) assessment of the likelihood of interference with areas or sites of particular significance, off-tenement areas and sites can be considered. However, there must be a nexus between the proposed exploration activities on the subject area and the risk of interference with the area or site.
[55] In DO02/33 there is no evidence that the grant of ELA 22206 would have any impact whatsoever on Durrudt. It is the case when assessing the likelihood of interference pursuant to section 237(b) that the nature and level of interference is not equivalent to that contemplated by section 237(a). The very nature of a sacred site which is of particular significance is such that the likelihood of even slight interference, perhaps even interference of a type that within section 237(a) could be characterised as “trivial”, would be sufficient for the Tribunal to determine that the expedited procedure was not attracted.
[56] In this matter there is no evidence that Durrudt would in any way be affected by the type of exploration outlined by the grantee party. Moreover this site is intersected by the Arnhem Highway. Having regard to the nature and frequency of the use of that highway, it is hard to fathom on the basis of the material before this inquiry, that any exploration contemplated by the grantee party could have any impact, trivial or otherwise, on that site or on the country immediately surrounding it.
[57] It is also relevant to refer to the regulatory regime in force in the Northern Territory pertaining to sacred sites. In this matter I have given careful attention to the relevant provisions of the Northern Territory Aboriginal Sacred Sites Act (in particular ss 33-37). Moreover section 24 of the Mining Act provides that every exploration licence shall, unless expressly waived, varied or suspended by the Minister, be granted subject to a condition that the licensee will:
“(k) not interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such under a law in force in the Territory, otherwise than in accordance with that law.”
[58] The above provisions, are, of course, directed at areas or sites processed under the abovementioned sacred sites legislation. However, there are also other provisions that deal with areas or sites in a broader sense. Condition 1 of the section 24A (Second Schedule) Conditions (set out previously) specifically requires a licensee to carry out its activities in such a way as to minimise any interference with areas or sites of particular significance. Other Conditions of relevance are set out below:
(a)Condition 3 requires that all exploration personnel and their contractors and agents must be instructed on the legal necessity to protect sacred sites and other significant archaeological sites and structures which may exist within a licence area;
(b)Condition 4 requires a licensee to consult with the AAPA and inspect the Sites Register before commencing any work in the licence area; and
(c)Condition 18 imposes an obligation on a licensee prior to the commencement of exploration activities to convene a meeting on the licence area (or nearest convenient locality) with registered native title claimants to explain the proposed exploration activities. The licensee is required to have regard to any representations made in relation to the concerns of native title holders. Specifically Condition 18 (c) says: “These representations may deal with the avoidance access procedures of particular areas of land within the licence area.” There is also a complaint mechanism in Condition 20 allowing dissatisfied native title holders to complain to the Minister, and empowering the Minister to intervene.
[59] The cumulative effect of these (and other) provisions is to put in place a comprehensive and well integrated regime designed to ensure that the risk of interference with areas or sites or particular significance is minimised. Of course, the operation of this regime does not inexorably lead to the conclusion in every inquiry that there is not a real risk or chance of interference within the meaning of section 237(b). Nonetheless, in making an assessment of the likelihood of interference, the fact that the Northern Territory has put in place a series of a provisions designed to address and minimise the risk of such interference, is a relevant and very important consideration.
[60] In summing up, whilst I appreciate that Mr Kenyon has concerns that the grant of Exploration Licence 22206 may pose a risk to Durrudt, there is no real evidence to justify a finding that those concerns have any objective basis. However, even if there was some evidence that could lead to a conclusion that some of those concerns had an objective basis (and it is clear that there is no such evidence), then applying the presumption of regularity, and having regard to the regulatory regime in force with respect to the protection of sacred sites, there is no real risk of Durrudt being interfered with.
[61] As with DO02/33, in DO02/37 the only site mentioned by Mr Kenyon (Norrganwili) is located outside of the proposed tenement. Mr Kenyon has the requisite authority to speak on behalf of this site and he has provided to the Tribunal specific information about the nature of its sacredness to members of the claim group. In the circumstances, I am of the view that it is a site of special or more than ordinary significance to the relevant native title holders and, as such, is a site of particular significance within the meaning of section 237(b).
[62] The government party nonetheless, has made a number of submissions about this site. For present purposes (having regard to my findings on both Mr Kenyon’s authority to speak for it, and its particular sacredness) I only refer to the following submission (GPCR DO02/37 at para 73):
“73. In relation to this location the only evidence relied on in relation to this point is the affidavit of Mr Kenyon in correlation with the AAPA supplied information. Mr Kenyon at paragraph 5 of his affidavit describes a location, a “fly dreaming” “near Marrakai Creek … near the north western corner of the ELA”. AAPA recorded site 5172-90 is described as a blowfly dreaming. It is slightly over six kilometres from the north western corner of the proposed licence area. Mr Kenyon deposes the location is “not far from the ELA area” at paragraph 5 of his affidavit. Even accepting Mr Kenyon’s assertion contained in paragraph 8 of his affidavit that the location is “6 or 7 kilometres” in area. At its most generous the area is still more than 4.5 kilometres from the proposed licence area. (A location 2.5 kilometres by 2.5 kilometres would have an area of slightly over six square kilometres. If such an area had its centre for the known location of AAPA 5172-90 it would be over 4.5 kilometres from the nearest point of the proposed licence area.”
[63] There is no evidence before the Tribunal indicating how the grant of ELA 10367 would be likely to interfere with Norrganwili. While I accept that there may well be a “zone of danger” around Norrganwili, and that, having regard to Mr Kenyon’s evidence, Norrganwili is but a particular feature of the landscape, nonetheless there is no material indicating that Norrganwili (and the “zone of danger”) actually intersects with the outer boundaries of the proposed tenement.
[64] In these circumstances, there must be some evidence that either on or off tenement activities of the grantee party would pose a real risk or chance of interference with this site and the surrounding zone of danger. In this matter there is no such evidence. Accordingly, having regard to the material before the Tribunal, and taking into account the regulatory regime for the protection of sacred sites outlined above, I find there is no likelihood that the grant of ELA 10367 would result in interference with Norrganwili.
Section 237(c) – Major disturbance to land or waters
[65] The native title party made extensive submissions on the issue of major disturbance with respect to both of the proposed tenements, however the vast bulk of those submissions were not directed to the particular circumstances of the respective areas, but were of a generic type received in most expedited procedure objection inquiries in the Northern Territory.
[66] 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 matter, 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 – see also Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, Member Williamson, 5 August 2002 at [79] and Sandy Limmen & Ors on behalf of the Alawa, Marra and Nganji People/Astro Mining NL/Northern Territory DO01/116, unreported, Member Stuckey-Clarke, 30 August 2002 at [51]. 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.
[67] The evidence before the Tribunal discloses that the land and waters comprising both ELA 10367 and ELA 22206, as well as the land and waters in the immediate vicinity of both proposed tenements, has been subject to extensive and varied exploration activities for some time.
[68] The nature of those activities has already been set out and does not require repetition. Suffice it to say, having regard to the manifestly patent history of exploration and mining in this general region of the Northern Territory, if there were examples of how this activity has disturbed the physical or cultural landscape then this would be the type of area that one would expect evidence to be led.
[69] Instead in neither matter has the native title party adduced particular evidence about exploration or mining activity disturbing the land and waters of the particular tenement areas. The only reference to inappropriate exploration and mining activity was that given by Mr Kenyon of drilling on a hill connected with the Dog Dreaming near Union Reef Mine. In response to this matter, the government party made the following submission (GPCR DO02/37 at para 100):
“At paragraphs 14 and 15 Mr Kenyon deposes to an instance of alleged interference with a site comprised in a hill. The action in question took place at an unspecified time during mining (compared with exploration) activities by a different grantee. On the evidence of the deponent the sacred sites protection regime in the Northern Territory was apparently effective to prevent (or at least prevent further) interference with the location. It is notable that in relation to the current proposed licence area it has been the subject of twenty seven previous exploration licences or authorities to prospect over the last twenty years. Activities pursuant to these activities have included stream sediment sampling, rock chip sampling, RAB drilling and soil sampling. Mr Kenyon makes no complaint in relation to the effect of these activities.”
[70] I agree with these submissions. Further, it should be pointed out that Union Reef Mine is located a short distance to the north-north west of Pine Creek. The areas under consideration in this inquiry are to the west and north west of the Bark Hut Inn which is located more than 100km north of Pine Creek. In short the Union Reef Mine is situated such a distance from the subject areas of this inquiry that it is hard to conceive the relevance of the activities recounted by Mr Kenyon. However, irrespective of this fact, it is the case that the incident described by Mr Kenyon would appear to have been connected with mining and not exploration, and there is no suggestion that the mining entity in question was the grantee party. Further, as the government party highlights, the protective regime in force in the Northern Territory, was effective in dealing with the concerns of Mr Kenyon.
[71] No evidence has been led that the land and waters of either of the proposed tenements is comprised of any sensitive geological or environmental areas which would be more susceptible to major disturbance should exploration of the type previously outlined be carried out. In both instances the native title party contended that the proposed tenements did, in fact, exhibit special physical circumstances. With respect to ELA 22206 the Tribunal’s attention was drawn (OSC DO02/33 at para 99) to the fact that there are creeks on the licence area, and Mr Kenyon’s concern that Durrudt (which consists of boulders) would be susceptible to damage. Further, in the case of ELA 10367 the special physical circumstances were said (OSC DO02/37 at para 97) to be the location of creeks on the licence area and that Norrganwili consists of tall red antbeds which would be susceptible to damage. In both instances, the fact that there are watercourses on a proposed tenement does not of itself render it likely that exploration will result in major disturbance. The mere existence of watercourses of itself is unexceptional and does not, in the normal course of events, enable the Tribunal to find that exploration is likely to result in major disturbance – generally see the comments in Victor Groves & Ors/Exploration & Resource Development Pty Ltd/Northern Territory DO01/127-129, unreported, Member Sosso at [98]. No special circumstances have been outlined in either matter with respect to the watercourses in question or the relationship between the exploration activities proposed by the grantee party and the particular watercourses. In addition, the existence of the two named sites of particular significance, both of which are located outside the relevant land and waters, provides no assistance to the Tribunal in the context of determining if there are special physical circumstances. No evidence has been led that exploration on the subject areas will disturb these sites, indeed, in the case of Durrudt it is inconceivable how exploration on ELA 22206 could result in any damage to the boulders that comprise this site.
[72] It is also the case that:
there are no sites of particular significance located within the boundaries of either proposed tenement;
no evidence has been led of any sacred sites (other than sites of particular significance) located within the subject areas;
there are no Aboriginal communities located within the proposed tenements;
no Aboriginal communities are located within close proximity of the licence areas;
evidence of community or social activities either on or immediately adjacent to either areas is, at most, scant; and
both proposed tenements are located wholly within pastoral leases and are subject, on an ongoing basis, to the disturbance resulting from the lawful activities of the lessees.
[73] Mr Kenyon does not depose that he (on behalf of the native title holders) is opposed to exploration per se. Apart from a generalised concern about inappropriate exploration activities (the risk of pollution of watercourses and entering onto, and exploring, areas that have a sacred quality), Mr Kenyon says that “the company needs to talk to us first, because they might destroy our sites. They should talk to us before they go anywhere.”
[74] In this regard reference can again be made to the requirement for a compulsory on site consultation prior to the commencement of exploration imposed by Condition 18 of the “Second Schedule” Conditions. This Condition is set out in full below:
“18.(a) The Licensee shall, prior to the commencement of exploration activities other than
reconnaissance, convene a meeting on the licence area (or the nearest convenient locality) with registered native title claimants or holders to explain the exploration activities. The Licensee may also invite the relevant pastoral lessee(s) or landholders to this meeting.
(b)Notice of the meeting shall be by letter and shall be posted to the registered native title claimants or holders and the representative body not less than 17 days before the meeting and shall nominate the date, time and place of the meeting.
(c)The Licensee must have regard to representations made to it at the meeting regarding any aspect of the exploration activities which raises concerns. These representations may deal with the avoidance access procedures of particular areas of land within the licence area.”
[75] This Condition imposes on a grantee of an exploration licence the obligation to meet with registered native title claimants to explain exploration activities prior to exploration commencing. The grantee must have regard to representations made, and such representations may deal with avoidance access procedures for particular areas. In addition, pursuant to Condition 20, should any native title claimant or holder lodge a written complaint to the relevant Minister that exploration activities are being conducted in a manner that adversely affects native title interests, the Minister can intervene and has the discretion, in due course, inter alia, to cancel a licence.
[76] Consequently, there are avenues available for the native title party to meet with the grantee party and obtain information about the proposed exploration activities and to outline their concerns. It is also the case that a grantee party who carries out exploration activities in a manner which adversely affects native title rights and interests, can be subject to appropriate Ministerial intervention.
[77] I am satisfied that the operation of Condition 18 (and related provisions) will ensure that the type of interaction with the grantee party outlined by Mr Kenyon will be accommodated.
[78] The grantee party in both matters made substantially the same submissions. Of relevance for present purposes is the following submission:
“The Grantee Party will abide by the conditions which attach to Exploration Licences generally. In addition to this, the Grantee Party will conduct its exploration activities in accord with the ‘Code of Conduct for Mineral Explorers in the Northern Territory’.
Sirocco’s initial work on this area will comprise non-intrusive activities such as data acquisition and review, data entry, broad regional mapping, rock chip sampling and power auger soil sampling over trends and contacts. Depending upon results obtained, future work would probably include RAB and/or RB drilling. This follow up drilling will require an Authorisation under the Mining Management Act from the Minister for Business, Industry and Resource Development prior to it being carried out.”
[79] In short the grantee party submits that it will comply with the relevant legislation as well as the Code of Conduct for Mineral Explorers. There is no basis for not applying the presumption of regularity to the grantee party when making a section 237(c) assessment.
[80] Finally, I have also taken into account the submissions of the government party in both matters. The submissions were similar for both proposed tenements, and I set out below that made with respect to DO02/33 (GPCR DO02/33 at paras 96-97):
“96. The Government Party iterates its contention that, taking into account:
(i)the absence of evidence of 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.
97.The Objectors’ Contentions at paragraph 102. “Views of members of the native title claim group”, refer to concerns of the Objectors’ regarding a disturbance. Fortunately the compulsory on-country consultation required under the Second Schedule Conditions ensures a mechanism to allay any lingering concerns Mr Kenyon may feel.”
[81] I am satisfied on the basis of the evidence before the Tribunal, the absence of any evidence of disturbance from previous exploration activity, the nature of the regulatory regime governing exploration in the Northern Territory and the absence of any evidence that the subject areas have particular geological or environmental features that render them more likely to be subject to major disturbance from the exploration proposed by the grantee party, that it is not likely that the grant of either ELA 10367 or 22206 would result in major disturbance within the meaning of section 237(c).
Determination
The determination of the Tribunal is that the grant of Exploration Licences 10367 and 22206 to Sirocco Resources NL are acts which attract the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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