Valerie Tambling, Tony Kenyon Luwanbi & Gabriel Hazelbane Gulngarring/NT Gold Pty Ltd & David J Langley/Northern Territory

[2002] NNTTA 209

NATIONAL NATIVE TITLE TRIBUNAL

Valerie Tambling, Tony Kenyon Luwanbi & Gabriel Hazelbane Gulngarring/NT Gold Pty Ltd & David J Langley/Northern Territory, [2002] NNTTA 209 (23 September 2002)

APPLICATION NO:  DO 01/136

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

-  and  -

IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application

VALERIE TAMBLING, TONY KENYON LUWANBI & GABRIEL HAZELBANE GULNGARRING  (native title party)

-  and  -

NT GOLD PTY LTD & DAVID J LANGLEY      (grantee party)

-  and  -

NORTHERN TERRITORY OF AUSTRALIA     (government party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:   John Sosso

Place:        Brisbane

Date:         23 September 2002

Hearing dates:            27 May 2002

Government Party:     Mr Nicholas Papandonakis, Solicitor for the Northern Territory

Native Title Party:     Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council

Grantee Party:           Mr Neville Manhire

Catchwords:     Native title – future act – proposed grant of exploration licence – expedited procedure objection application - parties contentions  – 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:               Acts Interpretation Act 1901 (Cth) s 36

Mining Act (NT) ss 24, 24A, 166

Mining Management Act (NT) Parts 3, 4

Native Title Act 1993 (Cth) ss29, 32, 44H, 151, 237

Northern Territory Aboriginal Sacred Sites Act (NT) ss 27, 28

Cases:Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/100, unreported, Member Sosso, 5 July 2002

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

Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002

Cheinmora v Striker Resources (1996) 142 ALR 21

Dingie Neade/McCleary Investments Pty Ltd/Northern Territory DO01/55, unreported, Member Stuckey-Clarke, 19 April 2002

Don Rory and Roy Dixon for the Garawa People/Northern Territory/Astro Mining NL DO01/107-108, unreported, Deputy President Franklyn, 12 September 2002

Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn,27 March 2002

Little v Western Australia [2001] FCA 1706

May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, Member Sosso, 25 June 2002

Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002

Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002

Smith v Western Australia (2001) 108 FCR 442

Western Australia v Smith (2000) 163 FLR 32

Western Australia v Ward [2002] HCA 28

Wik Peoples v Queensland (1996) 187 CLR 1

REASONS FOR DETERMINATION

Background

[1] On 8 August 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 9729 (“the proposed tenement”) to NT Gold Pty Ltd and David J Langley (“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 (approximately 27 square kilometres) and is comprised of the following:

Crown Lease Perpetual (CLP) 1466, which is known as “Mount Bundey”, and        

Perpetual Pastoral Lease (PPL) 1164, which is known as “McKinlay River”.

Most of the land and waters comprising ELA 9729 falls within CLP 1466, although at least some of the proposed tenement is pastoral lease land. The contentions in this matter were submitted prior to the High Court handing down its decision in Western Australia v Ward [2002] HCA 28. In that case consideration was given to various leases granted under the Special Purposes Leases Act 1953 (NT) and crown leases granted in perpetuity under the Crown Lands Act 1931 (NT).  Gleeson CJ, Gaudron, Gummow and Hayne JJ found that the effect of the grant of a Crown Lease Perpetual was (at [439]): “a conferral of exclusive possession with the consequence that so much of native title rights and interests as had survived the loss of the right to be asked permission to use or have access to the land, consequent upon the preceding pastoral leases, was, subject to the operation of the RDA, extinguished.” While this finding by the Court may have a bearing on other inquiries in the Northern Territory, in this matter the proposed tenement is not wholly comprised of Crown Lease Perpetual land and therefore the Tribunal has the requisite jurisdiction to proceed with its determination. In any event, there is no evidence before the Tribunal of the history of the tenures underlying the proposed tenement such that it would be possible to sensibly determine what impact the High Court’s findings may have. Nonetheless I draw the above finding of the High Court to the attention of the parties with respect to further inquiries in the Northern Territory.

[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. 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 10 December 2001. Technically this was more than four months after the section 29(4) notification day (8 August 2001) – section 32(3). However 8 December 2001 was a Saturday, 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, are also the Applicants named above.

[5] On 17 December 2001 Deputy President Sumner directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry and on 18 December 2001 Directions were issued for the conduct of the inquiry.  The various contentions made by the parties have been pursuant to those Directions and subsequent variations.  A Listings Hearing was convened on 27 May 2002.

[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. The Tribunal is required, pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In this instance, having regard to the material before the Tribunal, I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.

[7] The parties have submitted to the Tribunal extensive written contentions, which, for ease of reference, are set out below:

Government Party Contentions

Statement of Contentions of Government Party (“GPSC’) dated 22 April 2001

Contentions in Reply (“GPCR”) dated 15 May 2002

Native Title Party Contentions

Statement of Contentions of Objectors (“OSC”) dated 29 April 2002

Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated  14 May 2002.

Grantee Party Contentions

Email submission (“Gr1”) dated 16 May 2002

Evidence

[8] In addition to the written contentions, the native title party lodged an Affidavit of Mr Tony Kenyon (Luwanbi).  This Affidavit was affirmed on the 26^th April 2002 before Amy Lorraine Townsend, a Commissioner for Oaths.  The Affidavit is set out below:

Tony Kenyon (Luwanbi)

“1.  I am an applicant in the Old Mount Bundey native title determination application (DC00/31).

2.   The area of the native title application covers ELA 9729.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “TK 9729” is a map of the ELA and the surrounding area.  Marked on it are some of the places referred to in this affidavit.  The licence area is Warai, joint with Limilngan.  I am responsible for that area now.

3.   There is a hill between the Mary River and the McKinlay River.  It is a sacred site.  I showed it to Andrew McWilliam from AAPA.  It is registered, I think.  There is a white rock in those hills that is part of the Dreaming.  It is a Bullant Dreaming, that big cheeky ant.  It’s called Balbad.  There is only the one site in the licence area.

4.   It is really a women’s Dreaming.  I can’t really say anything for that.  Men can drive past.  But can’t go there.  The old women who know the business can go there.  My wife, Joan can go there; she’s right, she knows the ceremony.  She was there when I went there with Andrew McWilliam.

5.   There’s a high hill there.  White rock comes down to the bottom.  Where the white rock is, the site is.  It is the same size as from Waruk, where I live, to the turnoff from the Arnhem Highway, about 2.0 kilometres.  There’s bamboo spears growing on top of that hill.  Men aren’t allowed to cut that bamboo.  Old women used to cut that bamboo to make digging sticks to get turtle.  If a man is hunting, he has to go around Balbad.  A woman can go in looking for porcupine.  Men are not allowed to do anything.

6.   The explorer will have to talk to the women.  If the women don’t allow it to go, that’s it, it can’t go.

7.   I used to go mustering on Annaburoo Station before it broke up in 1976.  From Annaburoo, I used to drive up to Mary River across from where the McKinlay came in.

8.   Now, we drive down the road from the highway, on the Darwin side of Mary River.  We drive down to the McKinlay River in the licence area, a bit further up from where the two rivers meet, might be one mile.  Up the McKinlay, there’s an army base.  Half way up they’ve got a fence.  We go fishing for short neck turtle.  Last year I went once with my wife and four kids.  I had to get the key from the ranger at Fogg Dam.  We went in the dry time.  The two older ones are boys aged 13 and 14.  That was the first time they had been there. When I took them, I wet their heads.  I talked to the country. That meant we might get lucky and get a turtle.  I told them stories for the country.  My dad told me to do that.

9.   I might go again this year, when it gets really dry.  That is a place where there will be water.  There is always water in the McKinlay.  There are lots of little arms, billabongs, coming off the McKinlay River.  When the river floods, it is very wide.  In April, the country is wet and hard to get to.

10.    They’ve got to talk to us before they go on the country.  They might do the wrong thing with the site area.

11.    If the company puts muck in the River, I am worried about them killing the fish and the turtle.  I am worried if they mine for uranium and let it out.  It will get into the rivers and kill the fish and the people.

12.    Down on Union Reef Mine on Hazelbane country, there is a Dog Dreaming.  The country is grandma for Warai.  If you touch a big hill, lots of wild dogs come out.  They will probably kill the people working there, if they damaged that place.  They were drilling into that hill.  I went with Dave Ritchie from AAPA and told them not to drill a hole into the hill.”

Aboriginal Communities

[9] There are no Aboriginal communities within ELA 9729. The native title party contends (OSC at para 40) that there are three communities in the vicinity of the proposed tenement: Waruk, Mount Bundey Outstation and the Bark Hut Inn.

[10] Waruk is described by the native title party as “near the Arnhem Highway, closer to Darwin than the licence area.”   It is clear from this description that Waruk is situated quite some distance from the subject area, and it is certainly more than 60 km distant. Further the government party contends (GPCR at para 53) that with respect to each of the communities mentioned that “it is uncertain if they are, wholly or partially, a community of relevant native title claimants, the number of residents, and whether they are seasonally or permanently occupied.” Whilst this contention is correct, at least so far as Waruk is concerned, there is the primary evidence of Mr Kenyon that he resides there.

[11] The Bark Hut Inn is approximately 4 kilometres north of the proposed tenement on the northern side of the Mary River. However, there is no evidence before the Tribunal that any native title holder resides there. The government party lodged with the Tribunal a brochure entitled:

“The Bark Hunt Inn & Caravan Park

THE LEGEND GROWS

Home of the ‘Ice Cold’ Beer”.

The brochure describes at some length the services provided to visitors to this establishment which, it would appear, is an owner-operated petrol station, caravan park, tourist destination and diner. There is no indication whatsoever that this is a general community, let alone a community of native title holders. Indeed at the back of brochure there is a photograph of a crocodile eating what appears to be a decapitated duck. Above this colourful and graphic photograph is the following comment: “THE BARK HUNT INN A unique experience of Northern Territory hospitality.” The general tenor of the brochure is that this is not a general community, rather a private establishment offering tourist style accommodation and related services. For the purposes of this inquiry I am not prepared to infer that the Bark Hunt Inn is a community of native title holders.

[12] The Mount Bundey Outstation is north west of ELA 9729 and some distance west of the Arnhem Highway. The native title party estimates (OSC at para 40) that it is approximately 11 km from the proposed tenement, and from the mapping supplied this would appear to be correct. Nevertheless there is no evidence before the Tribunal about the number of people who live at the Outstation or whether any of these people are native title holders. Mr Kenyon makes no reference to either the Bark Hunt Inn or Mount Bundey Outstation in his Affidavit.

Recorded or Registered Sites

[13] There are no registered or recorded sites on ELA 9729.  The only sites recorded or registered by the AAPA in the immediate vicinity of the proposed tenement are two registered sites (each with an AAPA status of 40):

(a)Urakgi (5272-29) which is described as a ‘Hill centred around trig point 51, 1.5klm east of Annaburroo Homestead’. Urakgi is located approximately 3 km north north east of ELA 9729; and

(b)Gawudi (alt. Giwidik) (5272-30) which is described as a “Billabong known as Annaburroo billabong, located west of Annaburroo Homestead.”  Gawudi is located approximately 3 km north of ELA 9729. 

[14] The native title party does not specifically claim that either Urakgi or Gawudi are areas or sites of particular significance within the meaning of section 237(b). Instead the contentions of the native title party are directed towards Balbad which is specifically dealt with by Mr Kenyon. The fact that an area or site is either recorded or registered by the AAPA does not mean that it is an area or site of particular significance. Apart from anything else, the breadth of the definition of “sacred site” in the Northern Territory Sacred Sites Act precludes any suggestion that the concept of particular significance in section 237(b) is of an identical nature – see e.g. Dingie Neade/McCleary Investments Pty Ltd/Northern Territory DO01/55, unreported, Member Stuckey-Clarke, 19 April 2002 at [22]. In each case the Tribunal must be guided by the evidence produced by the relevant native title party. It is up to the native title party to inform the Tribunal whether there are any sites of particular significance on or in the vicinity of a proposed tenement and then to explain the nature of the sacredness of such areas or sites by means of evidence adduced by a person or persons who have the requisite knowledge or authority to speak on this subject. The fact that a site is registered is an important matter because it indicates that such a site has been thoroughly investigated by the AAPA to determine in accordance with section 27(2) of the Northern Territory Aboriginal Sacred Sites Act:

“(a) the basis and extent to which the applicant and other custodians, if any, are entrusted with responsibility for the site according to Aboriginal tradition;

(a)the name or names and addresses of the custodian or custodians;

(b)the story of the site according to Aboriginal tradition;

(c)the location and extent of the site;

(d)the restrictions, if any, according to Aboriginal tradition, on activities that may be carried out on or in the vicinity of the site;

(e)the physical features that constitute the site;’

(f)whether, and if so to what extent, the period of registration should be limited; and

(g)the restrictions, if any, that should be applied to information about matters referred to in paragraph (c) or (f) divulged by the custodian or custodians.”

In addition, the AAPA must give prior notice to any owner of land comprising a site, inviting the owner to make written representations. The Authority is required to give due consideration to any representations made and to record in its findings “the immediate or possible detrimental effect, if any, the fact that the site is a sacred site may have on the owner’s proprietary interest in the land.” – s 28(2). An owner whose activities may be constrained by the act of registration must be advised of the right to apply for an Authority Certificate – s 28(3). The cumulative effect of these and related provisions, is to ensure that there is in place in the Northern Territory, a legislative regime that requires suitable investigation of claims by custodians of alleged sacred sites, and consultation by an independent body, that such sites meet the relevant criteria, and that other interests affected by registration are considered. Nonetheless, there is not an inevitable intersection between a finding that a site will be registered under this Act and a finding that it is an area or site of particular significance to the relevant native title holders in an expedited procedure objection inquiry. Not only are the bases for making a finding under the relevant statutes different, but in addition, the fact that a site is sacred to particular traditional owners does not mean that it has the same (or, indeed, any) sacredness to the particular traditional owners that have lodged an expedited procedure objection application. Registration of a site under the Northern Territory sacred sites legislation is a useful starting point in an expedited procedure objection inquiry, but it is by no means determinative of the issue. In fact, as this inquiry highlights, registration of these sites is not relevant to a section 237(b) assessment as the native title holders in this matter have specifically not brought forward any evidence nor made any assertions that the registered sites are of particular significance to their claim group. Accordingly, I have not considered either Urakgi or Gawudi when making a section 237(b) assessment.

Previous Exploration Activity

[15] Over the past 25 years, the entire area of the proposed tenement has been subject to a number of previous exploration and mining grants by the Northern Territory.  Outlined below are details of previous mining and exploration tenements as supplied by the government party:

Mineral Claim (Northern)  -  MCN 333

Exploration Licence  -  EL 142, 1218, 1653, 2068, 3671, 5008, 7084, 7352, 7750, 8019

There are no current mining tenements covering the area of ELA 9729.

[16] Mapping produced by the Department of Business, Industry and Resource Development indicates that almost every part of ELA 9729 has been subjected either to stream sediment, soil or rockchip sampling. Stream sediment sampling has occurred mostly along the McKinlay River and its tributaries. Rockchip sampling has taken place in the north east, central north, eastern and south western sections of the proposed tenement. Soil sampling has been limited to an area in the central northern sector. However, the area to the west, north, south and immediate east of ELA 9729 has also been subjected to intensive exploration activity, with particularly intensive rockchip exploration in a wide north-south arc to the west.

[17] There are also numerous existing exploration and mining tenements in the general vicinity of the proposed tenement.  In particular, to the west and north west of ELA 9729 are a series of granted exploration licences: EL 8508, 9154, 9161 9196, 9346 and 9594. 

Nature of the Proposed Exploration Activity

[18] In its application for the Grant of an Exploration Licence, the grantee party made the following comments about its proposed work program for the first year:

“The first years (sic) exploration programme will consist of extensive traversing of the area by vehicle and on foot, chip sampling of mineralised outcrops and stream sediment sampling.”

The grantee also advised the following program for subsequent years:

“Should encouraging results be obtained in the first year a more detailed program will be undertaken in the second year which could consist of trenching and drilling of anomalous areas.  Anomalous stream sediment results will be further investigated.”

Expert Evidence Adduced by the native title party

[19] In addition to the Affidavit of Mr Tony 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.

[20] 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. This standard material has been considered by other Members of the Tribunal who have conducted expedited procedure objection inquiries in the Northern Territory. While Members have, as a general rule, found this material of general interest and on some occasions of limited assistance, it is couched in such a generalised nature that it is rarely of direct relevance in making a particular assessment in any given inquiry pursuant to paragraphs (a) – (c) of section 237. I agree with Member Williamson who observed (when dealing with the evidence of Messrs Stead and Foy) that: “The material is ‘generic’ but inadequate. There is a need to match the possibilities raised with the actual evidence submitted in the particular inquiry” – Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, 5 August 2002 at [27]. Moreover I also agree with the following observations of Deputy President Franklyn Don Rory and Roy Dixon for the Garawa People/Northern Territory/Astro Mining NL DO01/107-108, unreported, 12 September 2002 at [8.1]:

“the said evidence and materials do not address the issues raised by s237(a),(b),(c) of the Act with sufficient particularity to lead to a conclusion in respect of any thereof one way or another. Further, the evidence and material in each case is of a general nature and does not take into account the overall effect of the Mining Management Act 2001 and the Mining Act 1980 as amended by the Mining Amendment Act 2001 on the legislative regime which controls the exercise of rights under an exploration licence”

Legal Principles

[21] 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”).

[22] 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

[23] The evidence presented by the native title party of community and social activities is quite limited. Basically the only relevant evidence is that contained in the Affidavit of Mr Kenyon, and then it is limited to three short paragraphs.

[24] Basically, Mr Kenyon deposed that he used to go mustering on Annaburro Station before it was broken up in 1976. Clearly the type of community and social activities Mr Kenyon (and, presumably) other native title holders engaged in more than two decades ago is not of direct assistance in determining if there are contemporary community or social activities that may be interfered with by the grant of an exploration licence.

[25] Mr Kenyon goes on to point out that “we” drive down the Arnhem Highway from the Darwin side of the Mary River. This description is consistent with Mr Kenyon residing at Waruk via Humpty Doo. While the activity is described in the plural, later Mr Kenyon explains that in 2001 he was accompanied by his wife and four children (the older two are boys then aged 13 and 14).

[26] Mr Kenyon describes entering the area of the proposed tenement, but it is not clear from his statement whether he merely travels through this country to other destinations or actually engages in hunting, fishing and traditional activities on this area. He describes a part of the McKinlay River where he says there is an Army base where he goes hunting for short necked turtles. Mr Kenyon deposed that the Army Base is fenced and that he “had to get the key from the ranger at Fogg Dam.”

[27] I have a number of difficulties in fully appreciating the purport of Mr Kenyon’s evidence. He claims that he has to get a key from the ranger at Fogg Dam, presumably to enter the Army property. However, not only is the relationship between the Ranger at Fogg Dam and the Army base not explained, but of much more concern is the fact that Fogg Dam is located some 55 km north west of the proposed tenement. Fogg Dam is located north of the Arnhem Highway and within a relatively short distance (east) of Humpty Doo. In short it is unclear just what relationship (if any) a Ranger at a Dam  located many miles away from the proposed tenement, but within a much shorter distance from Mr Kenyon’s place of residence, would have to an Army base more than 50 km distant.

[28] Leaving that issue aside, the other matter is the location of the land Mr Kenyon describes as an “Army base”. It would appear that the only land in the vicinity of the proposed tenement that fits that generic description is CLP 883 which is located east of the Mary River. This land is held by the Commonwealth for defence purposes (army training) and it is, apparently, fenced. CLP 883 does not overlap any of the land or waters that comprise ELA 9729, but at its nearest point it is situated approximately 1.5 km east of the subject area. I will assume, for the purposes of this inquiry, that the land described by Mr Kenyon is in fact CLP 883.

[29] The leading decision on the proper interpretation of section 237(a) post the 1998 amendments to the Native Title Act 1993 is that of French J in Smith v Western Australia (2001) 108 FCR 442. His Honour 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.”

[30] 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 tenement forms part of Perpetual Pastoral Lease 1164. The licensee of that Lease together with any employees or agents of the licensee have a right, pursuant to the terms of the lease and the law governing that lease, 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.”  More recently Gleeson CJ, Gaudron, Gummow and Hayne JJ made these observations about Northern Territory pastoral leases in Western Australia v Ward [2002] HCA 28 at [424]: “To the extent that the grants of the pastoral leases involved the grant of rights and interests not inconsistent with native title rights and interests in relation to the land or waters covered by the respective pastoral leases, the rights and interests granted, and the doing of an activity in giving effect to them, prevailed over the native title rights and interests but did not extinguish them. That is, s9L of the Territory Validation Act was engaged.”   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 western sector of the proposed tenement by native title holders are already subject to lawful activities of the grantee of Perpetual Pastoral  Leases 1164;

(b) the area comprising ELA 9279 has been the subject of exploration activity from approximately 1973 to 1993.  The exploration activity has occurred over almost every part of the subject area and has taken the form of auger/soil sampling, rockchip sampling and stream sediment sampling. While the mapping provided by the government party illustrates the above activities, the summary of the Company Reports lodged by explorers and submitted into evidence by the government party also indicates that in addition exploration in the form of percussion drilling, diamond drilling and costean sampling has also taken place. Due to the absence of mapping illustrating where these exploration activities occurred I am not able to determine how widespread this was or in what geographic locations it occurred. However, it is clear, that the subject area as well as the surrounding land and waters have been subjected to quite extensive exploration activities over many years. Despite this history of exploration, the native title party has produced no evidence that previous exploration has appreciably interfered with community or social activities.  Indeed, the only reference to exploration concerns drilling carried out on Union Reef Mine outside the area of the proposed tenement which, in any event it would seem, was resolved in a mutually satisfactory manner;

(c) there are no Aboriginal communities located within, or in close proximity to, the proposed tenement;

(d) there is only limited evidence of community and social activities occurring on the proposed tenement, in particular:

(i)most of the activities deposed to occur outside the proposed tenement. Fogg Dam is located more than 50 km to the north west of ELA 9729 and the army base is situated on the eastern bank of the Mary River and wholly outside the subject area. At its nearest, CLP 883 (which is the land held by the Commonwealth for army training) is more than 1.5 km east of the proposed tenement. Mr Kenyon’s references to the areas where he engages in community and social activities are fairly vague, and he does not elaborate at any stage on any particular part of the proposed tenement on which specific activities occur;

(ii)it is not clear how many native title holders engage in community or social activities. While Mr Kenyon refers to his wife and four children, there are no other references to any other native title holders hunting, fishing or collecting bush food in the general area of ELA 9729. Consequently, the only evidence before the Tribunal is of a very small number of people engaging in any form of community and social activities on, and in the immediate vicinity of, the subject area; and

(iii)the frequency of  community and social activities on the proposed tenement are, at best, intermittent and infrequent. Mr Kenyon deposed in April 2002 that he had visited the area once in 2001 and that “I might go again this year, when it really gets dry”. In short it would seem that Mr Kenyon and his family only visit this area once a year, and only then during the Dry Season. Moreover, although he was accompanied on the 2001 trip by his wife and children he says that this was the first time that his older children had visited the area. Accordingly, it would appear that on previous occasions Mr Kenyon either visited the site alone, with other unidentified persons or with his wife and younger children. The material presented to the Tribunal does not demonstrate that this area is either visited regularly by Mr Kenyon and his family or has any particular significance from the viewpoint of hunting, fishing or foraging.

(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 its 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;

(f) Mr Kenyon does not depose that he is opposed to mining exploration per se, rather he says (at para 10): “They’ve got to talk to us before they go on the country. They might do the wrong thing with the site area.” It is clear that the main focus of Mr Kenyon’s concern is interference with the site Balbad and pollution of watercourses (para 11). Condition 18 of those imposed on explorers pursuant to section 24A of the Mining Act requires a compulsory on-site meeting on the licence area with registered native title claimants so that the proposed exploration activities can be explained.   Condition 18 requires the explorer to have regard to representations made in relation to any aspect of exploration activities which raise concerns.  Condition 18(c) provides: “These representations may deal with the avoidance access procedures of particular areas of land within the licence area.” This requirement provides a mechanism for ensuring that the type of concerns articulated by Mr Kenyon can be dealt with prior to exploration commencing, and that appropriate procedures are put in place to ensure that interference with particular sites are addressed;

(g) Mr Neville Manhire, the Managing Director of NT Gold Pty Ltd contended (Gr1) that “(e)very effort will be made to avoid any inconvenience to the Native Title Party in their enjoyment of their use of the areas and we shall make every endeavour to ensure that our exploration activities do not have any deleterious effects on that land.”; and

(h) the Tribunal is entitled to presume that the grantee party will act lawfully in exercising rights given under the exploration licence – see Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Deputy President Franklyn.

[31] The government party made, inter alia, this submission (GPCR at para 61): “The materials posited by the Objectors simply do not establish the how, when, where and why a substantial impact on the carrying on of any of the claimed community or social activities is likely to occur.”

[32] In conclusion, while I accept that some community and social activities are carried on by native title holders on the subject area, I am not satisfied on the material before the Tribunal, and having regard to the factors outlined above, that there is any real chance or likelihood that the grant of the proposed tenement would be likely to result in direct interference within the meaning of section 237(a).

Section 237(b) – Areas or sites of particular significance

[33] The native title party contends that Balbad is a site of particular significance within the meaning of section 237(b). The particular significance of Balbad was explained as follows (OSC at para 53):

“Balbad is a sacred site. It is a Bullant Dreaming, a women’s Dreaming.  Men can’t speak for it, nor go there.  Men can drive past. Only the old women who know the business can go there. Women are responsible for saying if the grantee party can go to the site. Tony Kenyon and his wife, Joan have shown the site to AAPA.”

[34] The government party’s response is set out below (GPCR at paras 84-89):

“84. Throughout his affidavit, Mr Kenyon refers to only one site, Balbad, which he deposes is on the licence area (cf Objectors’ Contentions at paragraph [54]).

85.  Mr Kenyon deposes that Balbad is “Bullant Dreaming”, which “is really a woman’s Dreaming”.  He concedes that, as a woman’s dreaming site, “I can’t really say anything for that”, and this his wife, Joan, knows the ceremony associated with the site.  No evidence has been submitted by Mrs Kenyon or any other female who has authority to speak for the site.

86.  In paragraph 4 of his affidavit Mr Kenyon deposes that “men can drive past, but can’t go there”.  Yet later in the same paragraph he states that “She [his wife Joan] was there when I went there with Andrew McWilliam [from AAPA]”.

87.  Balbad is contended by the Objectors as a site of particular significance because of a claimed association with a ‘dreaming’.  The association with a dreaming should not lead to any inference of particular significance.  This is clear from Justice Olney, writing as Aboriginal Land Commissioner, in the Roper Valley (Kewulyi) Land Claim Report where he states at [32]:

‘The countryside and all on and in it are the result of the activity of certain powerful ancestral beings.  These are now generally known to Europeans as Dreamings and the era of creation, the Dreamtime.  Although the entire universe is said to have been created by them, myth and song are usually restricted to specific features of the landscape which they both created and visited.’

88.  The fact that Balbad is asserted as being part of a dreaming of itself does not indicate that it is any more significant than any other named location within a dreaming.  A dreaming may extend for many hundreds (or even thousands) of kilometres.  The mere naming of a location and its asserted association with a dreaming is not, of itself sufficient evidence to conclude that the location is particularly significant in terms of s. 237(b).

89. Mr Kenyon does depose to the existence of ceremony with respect to Balbad, but he is unable to expand upon this information because of its status as a woman’s dreaming site.”

[35] A threshold issue that must be addressed is whether Mr Kenyon has the requisite authority to speak on behalf of the site referred to as “Balbad”. In Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/100, unreported, 5 July 2002 I set out ( at [15]) the factors to be taken into account by the Tribunal in determining whether a person providing evidence about an area or site has the requisite authority of the native title determination claim group to do so. Those factors are as follows:

(a)is the deponent an applicant/objector?

(b)is the deponent clearly identified in the Native Title Application as a member of the claim group?

(c)has the native title party lodged other Affidavits, Witness Statements or primary evidence which substantiates the assertions made by the deponent?

(d)is there any secondary evidence lodged which substantiates the qualifications of the deponent to speak on behalf of areas/sites.  For example, is the deponent mentioned in a Land Claim Report, some government document, or independent research material?

(e)is there any corroborating primary material in other Court or Tribunal proceedings which is lodged in a particular inquiry which would assist in determining the status of the deponent?

(f)is there evidence that the deponent by his/her own actions has demonstrated his/her right to speak for sites e.g. assisted the AAPA, instituted court proceedings to protect sites etc?

(g)are the status and qualifications of a deponent to speak on behalf of areas or sites contested by any of the other parties

(h)is the evidence of the deponent refuted or cast in doubt by any other material submitted to the Tribunal?

[36] In this matter Mr Kenyon is both an Applicant in D6033/00 and an Objector in these proceedings. Moreover, from his own evidence he has taken independent action in approaching the AAPA in an endeavour to have Balbad registered (see para 2). However, the very nature of Mr Kenyon’s evidence seriously brings into question his authority to speak about this site.  Specifically he says that Balbad is a women’s Dreaming site and that he can’t say anything for that site. In addition he deposes that while men can drive past it, they can’t go there. 

[37] Of concern is the fact that Mr Kenyon says that his wife knows the ceremony for this site and can go there.  I infer from this statement that Mrs Kenyon would have the requisite authority to speak for this site and explain its particular sacredness, if that be the case.

[38] The fact that Balbad is a Dreaming site does not mean that it is a site of particular significance. To be such a site, there must be evidence before the Tribunal that it is, to quote Carr J in Cheinmora v Striker Resources (1996) 142 ALR 21 (at 34-35): “of special, or more than ordinary, significance to native title holders in accordance with their traditions.”

[39] It will be noted that His Honour refers to two elements. The first is that the site is of more than ordinary significance, and, secondly, that this special quality is assessed from a proper consideration of the traditions of the relevant native title holders. To determine the particular sacredness of an area or site, the Tribunal must have evidence from a properly authorised person who can speak of the traditions of the native title holders in such a way that it is sensibly open to the Tribunal to make an objective assessment about the significance of a named site.

[40] Here, there is no evidence from Mr Kenyon as to why Balbad is particularly sacred. Obviously I accept his evidence that Balbad is an important or significant site to native title holders; that much is beyond question.  I also accept that it is a Dreaming site and, further, that it is a women’s site. Quite properly Mr Kenyon makes it clear that he can’t speak for the site, and that a properly authorised woman such as his wife could do so. Unfortunately no such evidence, whether it be from his wife or any other female native title holder was provided.

[41] It is an exercise of futility for this Tribunal to go much further in attempting to assess the significance of Balbad pursuant to section 237(b). Plainly there is simply not sufficient evidence for any sensible finding that it is a site of particular significance. In particular the stated inability of Mr Kenyon to speak on behalf of Balbad means, as he says, that only women can perform ceremonies there. Thus, while Mr Kenyon can identify Balbad and assert it is sacred, he cannot by traditional law inform the Tribunal of the nature of its sacred quality such that the Tribunal can sensibly ascertain if it is of particular significance. As R D Nicholson J found in Little v Western Australia [2001] FCA 1706 with respect to an assertion by a Mr Bynder that the whole of Lake Moore was sacred, even though he did not have the requisite authority to speak for the Lake (at [79]):

“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 a witness as a spokesman for the area.”

[42] In conclusion, there is insufficient evidence before the Tribunal that there are any areas of sites of particular significance such as would allow a predictive risk assessment pursuant to section 237(b).

Section 237(c) – Major disturbance to land or waters

[43] The native title party made extensive submissions on the issue of major disturbance, however the bulk of those submissions were not directed to the particular circumstances of the proposed tenement, but were of a generic type received in most expedited procedure objection inquiries in the Northern Territory.

[44] In Moses Silver I set out key provisions of the then regulatory regime governing exploration activities in the Northern Territory. Subsequently Deputy President Franklyn described the changes brought about by the Mining Management Act in Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, 27 March 2002 and Angus Riley and May Foster/Northern Territory/Rodney Johnston and Motoo Sukurai DO01/70-71 unreported 17 April 2002. More recently I considered the relevant provisions of the Mining Management Act in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002. I adopt, for the purposes of this inquiry, the analysis of the regulatory regime set out in the abovementioned determinations. In particular I have considered the following provisions in this inquiry: sections 24(j), 24A (in particular Conditions 2, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 20), 166(1A), (1B) and (2) of the Mining Act and Parts 3 and 4 of the Mining Management Act. The evidence submitted in this inquiry about the regulatory regime is consistent with previous findings of the Tribunal that it goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land or waters within the meaning of section 237(c). The mining exploration regime in the Northern Territory has been drafted with native title issues in mind, and the various legislative provisions are designed to ensure that impacts on the environment and to native title rights and interests are minimised as far as is practicable in the circumstances. Nevertheless despite the advanced and proactive nature of this regime, it is never a complete response to a predictive assessment by the Tribunal under section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration activities, the previous track record of the grantee party (when that is available, relevant, and has been raised), and such other issues as may be pertinent.

[45] The evidence before the Tribunal with respect to ELA 9729 discloses that the land and waters of the proposed tenement and adjacent areas have been subject to fairly extensive exploration activities over the past two decades. Mapping and other information produced by the Department of Business, Industry and Resource Development indicates that previous exploration on the proposed tenement has included auger/soil sampling, percussion drilling, diamond drilling, costean sampling and stream sediment sampling. As previously noted, most areas of ELA 9729 have previously been the subject of stream sediment sampling.

[46] Despite the extensive nature of the exploration activity that has occurred in this general area, no evidence has been led by the native title party asserting or demonstrating that any of the previous exploration has resulted in major disturbance to the relevant land or waters.

[47] The only suggestion of previous exploration or mining activity which has caused concern was the suggestion of drilling outside of the proposed tenement on a Dreaming site on Union Reef Mine. The brief commentary about this incident provides little guidance to the Tribunal, other than there was possibly intervention by the AAPA which may have resolved the situation. Certainly there was no suggestion by Mr Kenyon of ongoing problems or issues. Nonetheless, apart from this incident, there is no suggestion that previous exploration activity has resulted in pollution of watercourses or interference with any sacred sites.

[48] It also is relevant that the proposed tenement is located in an area which has, apparently, been the subject of intensive exploration in the past, and which comprises a number of extant exploration licences. In assessing the likelihood of disturbance brought about the grant of the proposed tenement, one factor which needs to be kept in mind is the existence of ongoing, or potential, exploration and mining in much of the adjoining land and waters.

[49] The only special circumstances of the subject area highlighted by the native title party (OSC at para 98) is the fact that the McKinlay River flows through it, that the River floods and there are numerous streams and billabongs that either flow into, or which are in close proximity to, the River.

[50] The fact that the McKinlay River and associated watercourses either flow through, or are situated within, the proposed tenement, and that much of the area is subject to periodic inundation, does not lead inexorably to the conclusion that exploration will result in major disturbance. The mere existence of watercourses on a subject area and the fact of periodic flooding is quite unexceptional. Indeed in almost every instance when I have considered exploration licences in the northern region of the Northern Territory this has been the case. Consequently the fact that the native title party can point to rivers, creeks, billabongs or swamps in an area the subject of an inquiry does not constitute a platform for demonstrating that exploration will result in major disturbance. In some instances, having regard to the use made of the water, its importance to native title holders, the existence of unique flora and fauna which is dependent on a particular body of water, the environmental significance of a particular watercourse, the proposed exploration activity and other pertinent information, the Tribunal could find that it is likely that the intersection of exploration activity and a particular watercourse may be such that there is a real risk or chance of major disturbance. However, in this inquiry these special factors have not been demonstrated by the production of any relevant evidence by the native title party.

[51] A further factor which I have taken into account is the absence of any communities of native title holders on, or within a reasonably short distance of, the proposed tenement. Moreover, no evidence has been led that any of the associated activity in relation to previous exploration activity has had any impact on any communities of native title holders.

[52] I have also pointed out that the evidence about community and social activities on the subject land is relatively scant, and it would appear that the land is accessed on an infrequent basis and then by only a few native title holders. The use made of the land and waters on these visits would appear to be minimal. No evidence was led that any of the previous exploration that has taken place has had any impact on these infrequent visits. Indeed, having regard to the infrequent visits to the subject area by Mr Kenyon and his family, I find it difficult to conceive how there could be an intersection between their community and social activities and the exploration program outlined by the grantee party.

[53] Moreover, I also note that Mr Kenyon does not express outright opposition to exploration occurring. Obviously Mr Kenyon is anxious to ensure that environmentally unsound practices are avoided and that pollution of watercourses does not occur. In addition, Mr Kenyon expresses the understandable and legitimate desire that there be discussions with the grantee party before exploration commences and that appropriate protocols are developed. The compulsory on site consultation (Condition 18 of the “Second Schedule” Conditions made pursuant to section 24A of the Mining Act) between the grantee party and registered native title claimants where concerns can be ventilated should ensure that issues such as these can be addressed and proper protocols developed.

[54] Finally, I note the grantee party’s submission that, not only will it comply with the relevant laws, but that, in addition, every effort will be made to avoid inconvenience to native title holders and it will make every endeavour to ensure that exploration does not have any deleterious impacts on the relevant land and waters.

[55] I am satisfied on the basis of the evidence before the Tribunal, the absence of any evidence of disturbance from previous exploration activity on the subject area, the nature of the regulatory regime governing mining exploration in the Northern Territory, and the absence of any material suggesting that the subject area has particular geological or environmental features that call for special consideration, that it is not likely that the grant of ELA 9729 would result in major disturbance within the meaning of section 237(c).

Determination

The determination of the Tribunal is that the grant of Exploration Licence 9729 to NT Gold Pty Ltd and David John Langley is an act which attracts the expedited procedure under the Native Title Act 1993.

John Sosso

Member