Victor Groves, Jessie Roberts, Robert Smiler, Wendy Daylight, & Hannah Moore; Sammy Bulabul and Moses Silver/Exploration & Resource Development Pty Ltd/Northern Territory
[2002] NNTTA 205
•13 September 2002
NATIONAL NATIVE TITLE TRIBUNAL
Victor Groves, Jessie Roberts, Robert Smiler, Wendy Daylight, & Hannah Moore; Sammy Bulabul and Moses Silver/Exploration & Resource Development Pty Ltd/Northern Territory, [2002] NNTTA 205 (13 September 2002)
APPLICATION NOS:DO 01/127, DO 01/128 & DO 01/129
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an Inquiry into Expedited Procedure Objection Applications
VICTOR GROVES, JESSIE ROBERTS, ROBERT SMILER, WENDY DAYLIGHT, & HANNAH MOORE
- and -
SAMMY BULABUL AND MOSES SILVER (native title parties)
- and -
EXPLORATION & RESOURCE DEVELOPMENT PTY LTD (grantee party)
- and -
NORTHERN TERRITORY OF AUSTRALIA ()government party
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 13 September 2002
Hearing date: 8 May 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 Geoff Fanning
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – parties contentions –Land Claim Reports – 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 - acts which attracts the expedited procedure.
Legislation: Acts Interpretation Act 1901 (Cth) s 36
Mining Act (NT) ss 24A, 24(j), 166(1A), (1B) & (2),
Mining Management Act 2001 (NT) Parts 3 & 4
Native Title Act 1993 (Cth) ss 29, 32, 44H, 151, 237
Cases: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 & May Foster/Northern Territory/Rodney Johnston & Mootoo Sukurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002
Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002
Harry Lansen for the Alawa People/Biddlecombe Pty Ltd/Northern Territory DO01/113, unreported, Member Stuckey-Clarke, 2 August 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
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 25 July 2002 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 23048 and 23111 (“the proposed tenements”) to Exploration & Resource Development Pty Ltd (“the grantee party”) and included a statement that it considered these acts attracted the expedited procedure.
[2] ELA 23048 covers an area of 380 blocks (1194 square kilometres) and is comprised of the following parcels:
Perpetual Pastoral Lease (PPL) 1067 which is known as “Moroak”,
Perpetual Pastoral Lease (PPL) 1153 which is known as “Flying Fox”,
Perpetual Pastoral Lease (PPL) 1159 which is known as “Lonesome Dove”,
Perpetual Pastoral Lease (PPL) 1161 which is known as “Chatterhoochee” andVacant Crown Land - NT Portion 916 and NT Portion 1718.
ELA 23111 covers an area of 58 blocks (186 square kilometres) and is comprised of
Perpetual Pastoral Lease (PPL) 1068 which is known as “Goondooloo”.
[3] The following native title determination applications which together cover the area of ELA 23048, and in the case of D6066/01 wholly comprises ELA 23111, have been filed with the Federal Court:
(a) Application D6066/01 (“Goondooloo Moroak 2”) was lodged on 25 October 2001 and entered on the Register of Native Title Claims on 23 November 2001. The Applicants are Victor Groves, Jessie Roberts, Robert Smiler, Wendy Daylight, and Hannah Moore, on behalf of the Mangarrayi and Jawoyn Groups.
(b) Application D6062/01 (“Roper Valley North”) was lodged on 25 October 2001 and entered on the Register of Native Title Claims on 23 November 2001. The Applicants are Sammy Bulabul and Moses Silver on behalf of the Kewulyi, Gunduburun and Barnubarnu peoples;
[4] On 26 November 2001, a Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on behalf of each of the above named applications. Technically each of these Forms was lodged more than four months after the section 29(4) notification day of 25 July 2001 (section 32(3)). However 25 November 2001 was a Sunday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
In each case, the named Objectors are also the applicants named above.
[5] On 4 December 2001 Deputy President Sumner directed that I constitute the Tribunal for the purpose of these expedited procedure objection inquiries and on 5 December 2001 Directions were issued for the conduct of the inquiries. The various contentions made by the parties have been pursuant to those Directions and subsequent variations. A Listings Hearing was convened on 8 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] 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 8 April 2002
Contentions in Reply (“GPCR”) DO 01/127 & 128 dated 2 May 2002 and DO 01/129 dated 3 May 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 23 April 2002
Objectors’ Reply to Contentions of Government Party (“OCR”) 7 May 2002
Grantee Party Contentions
Statement of Contentions of Grantee Party (“Gr1”) received 29 April 2002
Evidence
[8] In addition to the written contentions, the native title parties in DO 01/127 and DO 01/128 lodged an Affidavit of Mr Terence Willy and the native title party in DO 01/129 lodged an Affidavit of Jessie Roberts. These Affidavits were affirmed on 15th April 2002 before Mr Edward James Lowe, a Commissioner for Oaths. The Affidavits are set out below:
Terence Willy -
“1. I am a member of the native title claim group in the Goondooloo – Moroak native title determination application (DC01/66).
2. The area of the native title application covers part of ELA 23048. I have seen a map of the area of the ELA. Now produced and shown to me marked “TW 23048” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. I am senior traditional owner, Mingirringgi, for my father’s Gunduburun country from Mole Hill through Moroak Station.
4. Gunduburun country belongs to Guyal people. It goes from Old Moroak Station near the Roper River in the southwest corner of ELA 23048 southeast along the Roper River to Gunduburun. That’s where Mole Hill community is, right near Gunduburun, one of the main places for this country. This is a ceremony ground there called Ginggan. Mole Hill is located just south of ELA 23048.
5. My father’s Gunduburun country goes further east from there and includes a Rain dreaming place called Nuniyn on the southern side of the Roper River inside ELA 23048.
6. Gunduburun country stretches north and northwest across Moroak Station to a place called Nyumbuyan along Maiwok Creek. Nyumbuyan is Bush Turkey dreaming. My country goes right up north to Radniyu, same as that waterhole, you call him Rodney Waterhole, in the northwest corner of ELA 23048.
7. Gunduburun country includes another place on Moroak Station called Nyumbuyan along Maiwok Creek. Nyumbayan is Bush Turkey dreaming. My country goes right up north to Radnayu Waterhole in the northwest corner of ELA 23048.
8. The mining company should come and talk to the Mingirringgi – me and my family, and Moses Silver too – as well as my Junggayi, Joey MacDonald. Junggayi are like policemen for Aboriginal law. They look after the land, and make sure no-one does anything to damage it.
9. We are worried that the work for exploration might damage sacred sites and also it might damage our hunting and fishing places.
10. This ELA23048 is very close to my community at Mole Hill, and to the Roper River and Maiwok Creek, where we go fishing and hunting.
11. I am worried that mining exploration might come too close to these places, make big dust get up, and might be minerals get into the River and creeks. When we get a lot of rain, that water will run everywhere, and poison from minerals might kill the fish.
12. We go hunting in Moroak, follow the river up from Mole Hill to the old Moroak Station.
13. We get barramundi, goanna, hunt for kangaroo, fish for turtle, hunt for bush turkey, Warlpurrunggu.
14. We go walking from Mole Hill, and other times we go by Toyota, along the old stock road. We can’t get across to the northern side of the Roper River from Mole Hill, but we go across at the old Moroak Station area. Or otherwise we get across further east from Mole Hill, near Nuniyn, through the little channels there.
15. We always go hunting all around there. Every day during the dry season. Specially when we are sick and need bush medicine and bush food. We are a long way from town, so we go hunting and fishing all the time.
16. We go to old Moroak Station, and we go past there right up through Moroak north to Goondooloo Station. We follow that track past Die Jumb Peak right up to Goondooloo.
17. We also go hunting on that track along Maiwok Creek, and Gum Hole, all around there. We get a big mob of turtle there.
18. In the Dry season we go right up to the Mountain Valley boundary with Moroak Station. There’s a big creek there, good fishing all through there.
19. I want the traditional owners, my family and my Junggayi, to have a meeting with the mining company about the exploration. We just want to hear from the mining company what kind of work they want to do on the land here, and if they can do that work in a way that won’t leave big damage to our sacred sites and all our hunting and fishing areas.
Jessie Roberts –
“1. I am an applicant and a member of the native title claim group in the Goondooloo – Moroak native title determination application (DC 01/66).
2. The area of the native title application covers ELA 23111. I have seen a map of the area of the ELA. Now produced and shown to me marked “JR 23048” (sic) is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3. Bukalorpmi Creek runs through ELA 23111.
4. Bukalurrpme country belongs to the Jurrangluk group. Jeffrey Waller is a senior Mingirringgi, a traditional owner, for Jurrangluk through his father and grandfather.
5. I am senior Junggayi, with my sister Sheila Conway. We are Junggayi for Bukalurrpmi country through our mother’s father Bulmiynmiyn.
6. Junggayi are like managers for the country under Aboriginal law. Me and Sheila have to make sure that this country is not damaged.
7. We should be talking to the mining company first, before they go in there. They should come and pick us up, so we can show them where they can go and where they have to leave him alone. There are sacred places from Dreamtime there.
8. There are also hunting and fishing places on Goondooloo and Moroak Stations. We go by Toyota or car from Jilkminggan community to Elsey Station crossing, past Red Lily Lagoon, and through that pocket and then go to Gundangala on Goondooloo Station. Go for fishing. Sometimes we go on that main track from old Moroak Station, past Die Jumb Peak, along Maiwok Creek right up to that top part of Goondooloo within ELA 23111.
9. We go fishing for turtle, and then we go down the river and go fishing for barramundi, and if people have got a gun licence, well they get a bush turkey or anything like that. Lot of kangaroo, and goanna, blue tongue and emu. We also get sugarbag, and bush potato.
10. In the dry season, every week, nearly every day, people are going hunting on Goondooloo and Moroak Stations. People from Mole Hill community – Terence Willy and his family – go across to the northern side of the Roper River, round the old station at Moroak, and along that main road past Die Jumb Peak, along Maiwok Creek, right up through Goondooloo in the ELA area, as far as the Mountain Valley boundary.
11. Jeffrey Waller and his family go into Bukalurrpme country from the top side, from the Central Arnhem Highway.
12. We will be worried about those hunting and fishing areas on ELA 23111 if we don’t talk to the mining company before they go in there exploring.
13. They might damage the trees, and the water from them minerals. That’s the one now, that we are worried about. Minerals get into the water, and by and by, might be no more fish in this country.
14. We need to know when the mining company will be working, and which areas.
15. We are Junggayi, and we have to look after this country; that’s Aboriginal law. Unless we know what will be happening, how that company will do its work, and how they are going to leave the land after they finish, we will be worried that there will be some damage done.
16. They should meet us and talk to us about what work they want to do.”
[9] Mr Willy identifies himself as a member of the native title claim group in the Goondooloo Moroak native title determination application (D6066/01). With respect to objection DO01/127 lodged on behalf of the Goondooloo Moroak native title claim group, the government party made these submissions about Mr Willy’s Affidavit (GPCR DO01/128 at para 109):
“At the outset it should be noted that the only people revealed in the application and accompanying affidavit as authorised by the claim group in DC 01/66, D6066/01 are Victor Groves, Mr Jessie Roberts (sic), Mr Robert Smiler, Ms Wendy Moore and Ms Hannah Moore. Mr Willy is not suggested in the application as so authorised. This is a relevant and live issue which the Federal Court underscored recently in Little v State of Western Australia [2001] FCA 1706 (RD Nicholson J, 6 December 2001). There is no independent evidence before the Tribunal (e.g. from authorised applicants) that Mr Willy has been ‘authorised’ to speak on behalf of the claim group or any sub-group thereof.”
[10] It will be noted that the government party does not contest that Mr Willy is a member of the claim group in the Goondooloo Moroak 2 native title determination application. Rather the government party’s submission is focused on whether Mr Willy has the requisite authority to provide the evidence he deposed to.
[11] The issue of whether a person providing evidence on behalf of a native title party has the requisite authority and status is a live and important issue with respect to areas or sites alleged to be of particular significance. As the government party highlights, R D Nicholson J discussed at some length in Little v Western Australia what sort of weight should be ascribed to evidence from a native title holder when that person’s authority and ability to speak on behalf of areas or sites is not demonstrated.
[12] When a party challenges the authority of a native title holder to provide evidence in an expedited procedure objection inquiry, a clear distinction must be drawn between evidence relating to community and social activities and major disturbance and that relating to sacred sites. It is not necessary for a person giving evidence about activities, the environment, previous mining activities and the like, to demonstrate that they have a particular status within the claim group or provide detailed information about their authority to depose to the matters in their Affidavit. The core issue in such matters is to determine that the person in question is a member of the claim group or a relevant native title holder. Providing that is established, or not questioned, then the only other threshold question is whether there is an allegation that the evidence being provided is false. Unless either of those two issues arise, the Tribunal can proceed to weigh the material provided when conducting a predictive risk assessment on the basis of the legislative criteria contained in section 237.
[13] In DO01/128 it is clear that Mr Willey is a member of the claim group, and it is not challenged that he is a senior traditional owner (Mingirringgi) for Gunduburun country. While he is not an Applicant in D6066/01, I am satisfied on the basis of the uncontested fact that he is both a member of the claim group and a senior traditional owner, and that he has the requisite status to provide the evidence submitted to the Tribunal in objection DO01/128.
[14] A very different issue arises with respect to the use of Mr Willy’s Affidavit by the objectors in DO01/127. The government party made these submissions on the claim group in DO01/127 relying solely on Mr Willy as the primary source of their evidence (GPCR DO01/127 at para 110):
“Mr Willy does not depose to even being a member of the claim group relevant to objection DO01/127 (ie DC62/01, D6062). The relevance of his evidence cannot thus be the direct evidence of a member of the native title claim group, but that of an outside observer.”
[15] The native title party suggested that Mr Willy’s authority to give evidence on behalf of the claim group in objection DO01/127 was that he “is a member of the Goondooloo Moroak native title application (DC01/66). He is a senior traditional owner, Mingirringgi, for Gunduburun country, from Mole Hill to Moroak Station.” This statement provides very little assistance to the Tribunal. If it is the case that Mr Willy is a traditional owner from Mole Hill to Moroak Station (neither of which locations were identified in relation to the boundaries of the Roper Valley North native title determination application), then the question which needs to be asked is: what relevance is that to objection DO01/127?
[16] The maps provided to the Tribunal by the parties illustrate that Mole Hill and Moroak while located within the south western section of ELA 23048, fall outside the boundaries of the Roper Valley North application. Mr Willy deposes that his father’s Gunduburun country goes further east of Mole Hill and includes a dreaming place called Nuniyn. Mapping supplied by the native title parties in DO01/127 and 128 have Nuniyn marked on a part of ELA 23048 which is also outside (and to the west) of the boundaries of the Roper Valley North application. In short, if Mr Willy is providing evidence on the basis (as is claimed by the native title party in DO01/127) that he is a traditional owner for that country and can speak for the relevant land and waters, then that is of no assistance to objection DO01/127 because that country is outside the boundaries of the area claimed in the Roper Valley North application.
[17] In the circumstances I agree with the submissions of the government party, and ascribe the weight to be accorded to the evidence of Mr Willy so far as it pertains to objection DO01/127 as not that of either a member of the claim group or of a native title holder. If the native title party wished to rely on the Affidavit of Mr Willy provided in another objection, then this course of action was open. However, when relying on that evidence, the native title party in DO01/127 should have informed the Tribunal on what basis such reliance was being made, the relevance of his evidence to their objection and the relationship (if any) of Mr Willy to the claim group. In this instance none of these preliminary matters have been addressed, and it is not open or appropriate for the Tribunal in such circumstances to engage in a speculative exercise of “second-guessing” the objectors.
Land Claims Reports
[18] The native title parties in DO01/127, 128 and 129 seek to rely on various findings made by Maurice J in the Mataranka Area Land Claim Report and the native title parties in DO01/127 and 128 also rely on the findings of Olney J in the Roper Valley (Kewulyi) Land Claim Report.
[19] The land and waters under consideration by Olney J in the Roper Valley (Kewulyi) Land Claim Report fell outside the boundaries of ELA 23048, and the government party contends (GPCR DO01/127 at para 52) were at least 17 km distant. In fact part of ELA 23048 borders the area considered by Olney J. His Honour does deal with matters of general significance to this area of the Northern Territory, and I have found various parts of this Report of assistance in dealing with various matters raised in DO01/127 and 128.
[20] I have more difficulty in obtaining any particular assistance from the findings of Maurice J in the Mataranka Area Land Claim Report. Unlike Olney J’s findings which are of relatively recent vintage, those of Maurice J were made in 1988 on the basis of evidence which was largely heard in 1986. Moreover, unlike the relatively compact area considered by Olney J, the Mataranka Area Land Claim involved five areas of land stretching from Mataranka south to Warloch Ponds and east following the southern bank of the Roper River for a distance of some 137 km. That part of the Land Claim overlapping with ELA 23048 was part of the Urapunga stock route. It was described by Maurice J as “Area 4” and like all Northern Territory stock routes was one mile wide.
[21] The findings of Maurice J are quite dated, although the Report does contain much useful background information. With the above caveats, I have considered this Report when reaching my findings on objections DO01/127 and 128.
[22] On the other hand, I do not consider the findings of Maurice J of particular assistance in objection DO01/129. Unlike ELA 23048 which overlapped with the land and waters under consideration, there is no overlap between the boundaries of ELA 23111 and the Urapunga stock route. Moreover, the distance between ELA 23111 and the land and waters considered by Maurice J is estimated by the government party (GPCR DO01/129 at para 53) to be at least 35 km. This is conceded by the native title party.
[23] The native title party points out (OSC DO01/129 at para 46a) that the area of Country 7 (as described in the Mataranka Area Land Claim Report) includes some of the area around the present Moroak station. However as Moroak station is not located within the boundaries of ELA 23111 it is unclear what the relevance of His Honour’s findings would be to this matter. It is also pointed out (OSC DO01/129 at para 46d) that Country 11 has a considerable north south extension, going as far north as towards Flying Fox Creek. Again this is of marginal relevance to the Tribunal as Flying Fox Creek does not flow through ELA 23111 and is, in fact, more than 20 km east of the subject area.
[24] The native title party in DO01/129 points out that various findings of Maurice J deal substantially with the same people who are members of the native title claim group. While that may be the case, nonetheless His Honour makes no findings of particular relevance to the land and waters that comprise ELA 23111. In particular I can find no findings of actual foraging over the subject area, nor is there discussion of any sites of particular significance within the subject area. Even if there were specific findings on foraging, this Report is now so dated its utility in this matter would be marginal. Consequently, while Maurice J provides an informative overview of traditional laws and customs in this general area of the Northern Territory, nonetheless there is a distinct lack of specific information and findings with respect to the area of ELA 23111 which limits the relevance of the Report for the inquiry into objection DO01/129. Insofar as His Honour was dealing (so far as is relevant to this inquiry) within a stock route of one mile wide located more than 30 km south of the subject area, it is not surprising that His Honour’s Report is only of general interest.
Aboriginal Communities
[25] With respect to ELA 23048, both native title parties refer to three Aboriginal communities which are said to be located on or in the vicinity of the proposed tenement, namely:
(a) Kewulyi Aboriginal Land Trust;
(b) Kewulyi Community; and(c) Mole Hill.
[26] The reference to Kewulyi Aboriginal Land Trust in the context of evidence about communities is inapposite. Kewulyi Aboriginal Land Trust is simply a form of tenure over particular land and waters. The government party made the following submissions (GPCR DO01/127 at paras 57 and 58) on this matter, which the Tribunal endorses:
“57. The Objectors’ Contentions refer to three communities as ‘occupied’ by members of the native title claim group. One of these communities is in an Aboriginal Land Trust.
58. The reference to Kewulyi Aboriginal Land Trust in Paragraph 64a. is spurious. An Aboriginal Land Trust is a form of land tenure. It is not evidence of the existence of a group of alleged native title holders carrying on community or social activities within the proposed licence area.”
[27] Mole Hill is situated approximately one kilometre to the south of the boundary of ELA 23048 and had a recorded population of five as at June 2001. The Kewulyi Community is located within one kilometre of the extreme south eastern boundary of the proposed tenement.
[28] There are no communities located on or in close proximity to ELA 23111. The native title party in DO01/129 refers to the Beswick Community, which is located (according to the native title party) some 30 km to the west of the subject area. In addition there is also a reference to “Jilkminggan” which is claimed to be a community. This issue will be dealt with later in this Determination, however for present purposes, it should be noted that the government party estimates (GPCR DO01/129 at para 58) that Jilkminggan is 80 km from ELA 23111.
Recorded or Registered Sites
[29] There are approximately 17 recorded sites within the area of ELA 23048 all of which have been awarded a status of 10 or 12 by the AAPA, and a further 26 recorded sites within close proximity (5-10 kilometres) of the boundaries of ELA 23048 which have also been accorded a status of 10 or 12 by the AAPA.
[30] The native title parties in objections DO01/127 and 128 contend that the following sites are of particular significance to both claim groups:
(a)Gunduburun;
(b)Ginggan;
(c)Nuniyn;
(d)Nyumbuyan;
(e)Radniyu;
(f)Barnubarnu; and
(g)Balubalumarni.
Each of these sites, with the exception of Balubalumarni, is mentioned in the Affidavit of Mr Willy. The relevant AAPA status of these sites and the approximate location is set out below:
Site Number AAPA Name Status Location 5668-16 Gunduburun 12 Close to southern boundary 5668-48 Ginggan 10 Outside tenement near Mole Hill 5668-36 Nunin 10 On southern section of tenement 5668-49 Nyumbuyan 10 On central west section of tenement 5768-23A Banubanu 12 On south east section of tenement 5768-23B Banubanu 12 On south east section of tenement
[31] There are no sites recorded or registered by the AAPA on, or in the immediate vicinity, of ELA 23111.
Previous and Proposed Mining/ Exploration Activity
[32] The area comprising both of the proposed tenements has been subject to numerous prospecting and exploration tenement grants by the Northern Territory during the last 25-30 years. The government party supplied the following details of prior mining tenements granted over these areas:
ELA 23048:
Authority to Prospect – AP 1892, 2002, 2100, 2332, 2573, 2583, 2612, 2897.
Exploration Licence – EL 1954, 2895, 2900, 2907, 3351, 3359, 3364, 3367, 3368, 4482, 4483, 4487, 4633, 4634, 6288, 6290, 6291, 6292, 6294, 6295, 6296, 6885, 8275, 8938, 8940, 8942.
ELA 23111:
Authority to Prospect – AP 1866, 2022, 2573.
Exploration Licence – EL 2907, 3367, 4484, 4488, 4633, 6281, 6282, 6286, 6288, 6291, 7852, 8940, 8942.
[33] There are no current mining tenements situated within the outer boundaries of either of the proposed tenements.
[34] Mapping supplied by the government party indicates that ELA 23048 adjoins Exploration Licence EL 22479 on its northern and western boundaries, EL 22480 on part of the northern and the eastern boundaries and EL 22339 in the south east. Also in the vicinity of ELA 23048, there are current exploration licences to the north east (EL 5953 and 5954) and numerous applications for exploration licences.
[35] ELA 23111 adjoins EL 22479 in the south and east and EL 22478 in the north.
[36] In both of its Applications for the Grant of an Exploration Licence for ELA 23048 and 23111 the grantee party made the following comments about its proposed work program for the first year:
“The Exploration Licence Application targets insitu and transported heavy industrial minerals associated with extensive erosion of dolerite sills which have intruded at various stratigraphic intervals into the Upper Proterozoic Roper Group. Work programs in tenure one will incorporate combinations of the following activities designed to further refine target area selection in preparation for intense year two exploration activities;
·Historic literature and analytical data review/compilation;
· Available Thematic Mapper digital data and open-file geophysical surveys; target area definition/refinement and data interpretation;
· Reconnaissance and follow-up pick and auger-based soil sampling with helicopter support as necessary;”
[37] The grantee party also indicated the activities of year two exploration would be:
“Year Two activities will be largely dependent on positive results from the initial tenure’s exploration. Combinations of the following are likely to be undertaken:
· Extensive gridding, geological mapping and soil/auger/drill sampling;
· Comprehensive laboratory analysis of 2,000 samples;
· Trial low-impact extraction of target commodities;
· Resource estimation exercises in combination with existing hard rock resources held by the company;
· Marketing and preliminary feasibility Studies.”
[38] The only difference between the material lodged by the grantee party in relation to ELA 23048 and ELA 23111 is that in its application for ELA 23048 it specified that in year two there would be comprehensive laboratory analysis of 2,000 samples, whereas with respect to ELA 23111 a figure of 1,000 samples was outlined.
Expert Evidence Adduced by the native title party
[39] In addition to the Affidavit of Mr Willy, and the abovementioned contentions, the native title parties submitted, inter alia, the standard Affidavits of Mr Jeffrey Stead and Mr Mark Foy as well as the transcripts of evidence both gentlemen gave to Member Stuckey-Clarke in December 2001 and the standard documents dealing with rights conferred under exploration licences and the analysis of legislation dealing with sacred sites.
[40] These standard documents have been considered by various Tribunal Members in numerous Northern Territory expedited procedure objection inquiries. Recently the relevance and utility of this generic material for specific inquiries was discussed by Member Williamson in 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 (“Anges Limmerick”). I respectfully adopt, for the purposes of this expedited procedure objection inquiry, Member Williamson’s comments and analysis at [23] – [29].
Legal Principles
[41] 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 (“Moses Silver”) DO01/13, unreported, Member Sosso, 1 February 2002.
[42] 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
[43] As previously noted, no primary evidence was adduced by the native title party in DO01/127 in regard to community or social activities by members of the Roper Valley North native title claim group. Instead reliance was placed on the Affidavit of Mr Willy who is a member of the Goondooloo Moroak claim group. In its Statement of Contentions (at para 67 g) the native title party in DO01/127 set out the various hunting and fishing activities outlined by Mr Willy and claim that this activity is engaged in by “Members of the native title claim groups and Terence Willy”. This bald assertion is not supported by a reading of Mr Willy’s Affidavit, and, in any event, no independent material has been lodged to support such a proposition. Mr Willy speaks for himself and his claim group, and does not specifically indicate that his comments have applicability to members of the Roper Valley North claim group.
[44] Apart from Mr Willy’s Affidavit the objectors in DO01/127 draw the Tribunal’s attention to various findings in the Mataranka Area Land Claim Report and the Roper Valley (Kewulyi) Land Claim Report as well as evidence given in Moses Silver by Mr Bulabul.
[45] With respect to the findings of Olney J in the Roper Valley (Kewulyi) Land Claim Report, reliance was placed on two passages to support the proposition that members of the Roper Valley North claim group engage in foraging activities on the proposed tenement. The first passage referred to is paragraph 55 where His Honour said:
“Members of the Kewulyi group asserted in evidence the right in accordance with Aboriginal tradition, of members of the group to hunt and forage over Kewulyi country. There is no reason to doubt the validity of such a claim which was not challenged and which is entirely consistent with well known Aboriginal traditional rights throughout the Northern Territory.”
It will be noted that Olney J was dealing with a traditional right or entitlement to forage. This short passage does not expressly deal with actual foraging, let alone discuss at any length details of actual foraging by members of the Roper Valley North claim group on ELA 23048. Accordingly, the findings of His Honour at paragraph 55 are of marginal relevance to the inquiry into objection DO01/127.
[46] The other passage of Olney J relied upon is found at paragraph 62 where he says: “Members of the Gunduburun local descent group assert in accordance with Aboriginal tradition, the right to hunt and forage over Gunduburun country. Those claims have not been challenged and there is no reason to doubt their validity.” Leaving aside other issues, the Tribunal again has before it a discussion by His Honour of traditional rights or entitlements to forage. Olney J does not deal with evidence of actual foraging, rather he accepts the uncontested right of a particular local descent group in accordance with traditional laws to forage over particular country. Again this particular finding is of marginal assistance to this inquiry.
[47] The references to passages in the Mataranka Area Land Claim Report are also of not much assistance. The particular passages relied upon (OSC DO01/127 at para 67 a, b and e) do not deal with evidence of actual foraging and community activities, but rather the context in which foraging and other activities (e.g. teaching children about laws and customs) occur and their importance to traditional owners. While these passages are informative, they do not provide evidence of actual community or social activities by members of the Roper Valley North claim group.
[48] Finally reliance was placed on the evidence of Mr Bulabul, given to the Tribunal at an “on country” expedited procedure objection inquiry (DO01/13), in November 2001 about the collection of firewood by members of the Kewulyi community. The following evidence was given by Mr Bulabul:
“Mr Frith: They’ve been walking around or driving around for anything?
Sammy Bulabul: They walk about just get the wood
Mr Frith: They get?
Sammy Bulabul: Get wood.
Mr Frith: Get wood.
Sammy Bulabul: Yeah.
Mr Frith: What they get that wood for?
Sammy Bulabul: They carry wood for a fire.
Mr Frith: For fire?
Sammy Bulabul: Yeah.
Mr Frith: Okay, and how do they get that?
Sammy Bulabul: Just there, not too far.
Mr Frith: Not too far.
Sammy Bulabul: They got to go right up to from here – not too far to carry wood.
Mr Frith: Yes, so how do they go out, they go walking?
Sammy Bulabul: Foot walking, yeah.
Mr Frith: Do they go driving?
Sammy Bulabul: No, foot walking
Mr Frith: Foot walking?
Sammy Bulabul: Yeah.”
[49] In response the government party made these submissions (GPCR DO01/127 at para 64):
“An examination of the transcript in fact suggests that the reference is to evidence of Mr Sammy Bulabul to the effect that residents of Chatterhoochee Station collect firewood on foot. There is no reference to a Kewulyi community. To the extent the reference to firewood is relevant, it is contended the grant of an Exploration Licence would not interfere with the ‘on foot’ collection of firewood.”
[50] As the Member who heard the evidence of Mr Bulabul in November 2001, it is abundantly clear that he was referring to persons from the Kewulyi Community. That community is located within a very short distance of the extreme south-eastern portion of ELA 23048. I have no doubt whatsoever that members of that community, some of whom I infer are members of the Roper Valley North claim group, do in fact go on foot to collect firewood from that small sliver of ELA 23048 which is located less than a mile to the east of the Kewulyi Community. Accordingly for the purposes of the inquiry into the grant of ELA 23048 I assume that members of the relevant native title claim group engage in the collection of firewood.
[51] The next issue is whether the grant of ELA 23048 would be likely to directly interfere with those activities within the meaning of section 237(a) as interpreted by French J in Smith v Western Australia (2001) 108 FCR 442. It is clear from Mr Bulabul’s evidence that the collection of firewood is by foot, and accordingly would not be within a large distance from the Kewulyi Community. The Kewulyi Community is located near to an extremely small sliver of ELA 23048 to its immediate east. The evidence given by Mr Bulabul about the number of persons engaging in the collection of firewood, its frequency and its importance was less than fulsome. It also needs to be appreciated that the area of direct contact between the persons collecting the firewood and the proposed tenement is extremely small. It is extremely small not only in relation to the overall size of ELA 23048 but also in respect of the area within which the firewood would be collected. It is not as if the area east of the Kewulyi Community is wholly comprised of the subject area; rather the area subject to the grant of the proposed future act is only an extremely small sliver of land. Having regard to the overall size of the proposed tenement, the small intersection of that area with the overall area of the collection of firewood, and the scant nature of the material about this activity, I am unable to find that there is a likelihood of direct interference within the meaning of section 237(a). While there is a small possibility that there may be an intersection between the collection of firewood and the proposed exploration activities of the grantee party, the likelihood is that the intersection would be so marginal as to be inconsequential.
[52] Turning next to the evidence of Mr Willy, it would appear that the country he speaks for lies in the western section of ELA 23048. The places mentioned in his Affidavit include Old Moroak Station, Mole Hill, Gum Hole, Nuniyn, Maiwok Creek, Die Jumb Peak and Rodney Waterhole. Each of the places he mentions can be located, and the community and social activities outlined would appear to be connected with this general geographic area. Accordingly, the Tribunal has direct evidence from a native title holder about activities in the western and north western sections of ELA 23048, but it would appear that this evidence does not extend to the eastern half of the subject area. In particular, none of the various places mentioned by Mr Willy in connection with hunting, fishing and foraging activities lie within that part of ELA 23048 covered by the Roper Valley North native title determination application.
[53] Mr Willy deposes that “we” go hunting and fishing along the Roper River between Mole Hill and Moroak. Both of these locations are in the extreme south-west of the subject area, with the Roper River mostly forming the southern boundary of the proposed tenement. Mr Willy outlines how these activities commence from Mole Hill, sometimes by foot and other times traditional owners use motor transport. To get from the southern side of the Roper River to the northern bank (which is the part lying within the proposed tenement) Mr Willy has to travel from Mole Hill to either Moroak or Nuniyn. Specifically he deposes (at para 15) that “We always go hunting all around there. Every day during the dry season. Specifically when we are sick and need bush medicine and bush food. We are a long way from town, so we go hunting and fishing all the time.”
[54] Additionally, Mr Willy deposes to hunting and fishing north of Mole Hill to Goondooloo. Reference points include Maiwok Creek and Gum Hole where turtles are obtained. Maiwok Creek flows through the centre of the subject area. Finally, Mr Willy says that during the dry season, hunting and fishing occur as far north as the boundary between Mountain Valley pastoral lease and Moroak Station. This boundary is some distance to the north of the northern boundary of ELA 23048.
[55] It is clear from this evidence that some members of the Goondooloo Moroak 2 claim group engage in hunting, fishing and foraging activities on an almost daily basis in that part of ELA 23048 which lies between Moroak and Mole Hill. Mr Willy deposes that he lives at Mole Hill and that hunting, fishing and gathering of bush tucker and medicine are essential because of the distance to “town”. Presumably the persons engaging in this intensive activity would likewise live with Mr Willy at Mole Hill. Unfortunately there is no indication in the Affidavit who accompanies Mr Willy on these activities, or generally those traditional owners who use the natural resources of the subject area as part of their daily life. The government party pointed out (GPCR DO01/128 at para 60) that Mole Hill had a recorded population of 5 as at June 2001. This fact was not contested by the native title party. It is therefore open to the Tribunal to infer that the number of persons travelling on a daily basis from Mole Hill to engage in the activities outlined by Mr Willy would in most (but not all) instances be relatively few. For the purposes of this inquiry I proceed on the basis that the residents of Mole Hill are native title holders.
[56] Mr Willy’s evidence while highlighting that part of ELA 23048 is used for hunting, fishing and gathering activities also indicates that only a very small proportion of the overall area (namely the sector between Moroak and Mole Hill) is used intensively for this purpose and that at other times the community and social activities range over a very wide area that includes a substantial area that falls outside the proposed tenement.
[57] In assessing the likelihood of the grant of ELA 23048 interfering directly with the carrying on of community or social activities by members of the Goondooloo Moroak 2 native title determination claim group, I have taken into account the following factors:
(a)the number of native title holders engaging in hunting, fishing, gathering and other community and social activities is unclear;
(b)the area over which such activities are intensively carried out forms only a small part of the overall area of ELA 23048;
(c)it would appear from the uncontested evidence of the population of Mole Hill that, apart from Mr Willy, only a very small number of traditional owners engage in the intensive hunting and foraging activities he deposed to;
(d)while a larger part of the subject area is accessed and used for community and social activities, this area is used less often than that between Mole Hill and Moroak;
(e)some of the hunting, fishing and gathering deposed to takes place over a very wide area, and includes land that falls outside the subject area. It is not clear, leaving aside the Moroak and Mole Hill area, just how often the other parts of the proposed tenement are accessed vis-à-vis areas accessed outside of the proposed tenement;
(f)it is not clear from Mr Willy’s Affidavit if the persons engaging in the various activities deposed to (other than those in the vicinity of Mole Hill) are members of the Goondooloo Moroak 2 native title claim group;
(g)there is no material before the Tribunal, and certainly no suggestion from Mr Willy, despite this area being subject to 35 previous Exploration Licences or Authorities to Prospect, that any such activity has had a deleterious impact on the environment or the carrying out of the social or community activities deposed to. Indeed as the mapping produced by the Department of Business, Industry and Resource Development illustrates, the area in the vicinity of Mole Hill has been subjected to extensive stream sediment sampling. Insofar as such activity has occurred, it has, apparently, not appreciably interfered with the hunting, fishing and foraging activities outlined by Mr Willy;
(h)Mr Willy does not depose that he is opposed to mining exploration, rather he wants a meeting with the grantee party “to hear … what kind of work they want to do on the land here, and if they can do that work in a way that won’t leave big damage to our sacred sites and hunting and fishing areas.” Condition 18 of the conditions imposed on explorers pursuant to section 24A of the Mining Act imposes a compulsory on-site meeting on the licence area with registered native title claimants so that exploration activities can be explained. The Condition requires the explorer to have regard to representations made in relation to any aspect of the exploration activities which raise concerns. In particular Condition 18(c) provides: “These representations may deal with the avoidance access procedures of particular areas of land within the licence area.” This requirement should ensure that the type of issues that Mr Willy and other traditional owners want to raise prior to work commencing can be accommodated, and appropriate procedures are put in place to ensure that concern about interference to particular sites or areas can be addressed;
Mr Willy also expressed concern (at para 9) that exploration might damage sacred sites as well as hunting and fishing places. In particular, concern was expressed about the creation of dust and water pollution (para 11). It needs to be emphasised that these are very legitimate concerns, and are matters that properly can be taken into account by the Tribunal. However, the regulatory regime in force in the Northern Territory has been drafted to ensure that the activities of explorers do not substantially impact, at least as far as is practical, on the community and social activities of native title holders. In a number of previous expedited procedure objection inquiries I have referred to these provisions, however for present purposes attention can be drawn to Conditions 1 and 2 imposed on explorers pursuant to section 24A of the Mining Act. These Conditions are particularly relevant having regard to the concerns expressed by Mr Willy about possible interference with hunting, fishing, gathering, disturbance to soil and flora and possible pollution of watercourses:
“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; or
(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 disturbance to 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 outlined in previous expedited procedure objection inquiries, and the cumulative effect of these various provisions is such that it is possible to infer that there is a comprehensive and well integrated legal regime which has been specifically drafted to prevent (so far as is possible) interference to community or social activities by explorers. While this regime does not automatically result in a finding that there is not a real risk or chance of interference with such activities, nonetheless the existence of this regime is an important factor to be considered when making a predictive risk assessment – see also Harry Lansen for the Alawa People/Biddlecombe Pty Ltd/Northern Territory DO01/113, unreported, Member Stuckey-Clarke, 2 August 2002 at [20] – [22] and Anges Limmerick at [49] – [53].
(j)The Tribunal is entitled to presume that the grantee party will act lawfully in exercising rights given under the exploration licence – see Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Deputy President Franklyn; and
(k)ELA 23048 is made up substantially of land and waters contained within four pastoral leases. As French J highlighted in Smith v Western Australia the Tribunal is entitled to take into account constraints imposed on community and social activities of native title holders by the lawful actions of third parties. The licencees of the four pastoral leases, together with their agents and employees, have a right, pursuant to the terms of those leases and the relevant laws, to carry out certain activities which in turn would have the potential to impact on hunting, fishing and foraging activities. To the extent that such rights are exercised, they prevail over any native title rights and interests – see s44H Native Title Act 1993 and the statement of Toohey J in Wik Peoples v Queensland (1996) 187 CLR 1 at 133. More recently the High Court considered Northern Territory pastoral leases in Western Australia v Ward [2002] HCA 28. Gleeson CJ, Gaurdron, Gummow and Hayne JJ made these findings with respect to the particular Northern Territory pastoral leases under consideration which emphasise this principle:
“417. It is apparent, for the reasons set out above, that the reservations in favour of Aboriginal people did not define or confine the rights that native title holders could exercise in the manner suggested by the majority of the Full Court. However, the grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land. Those rights were inconsistent with the right of the pastoral lessee to use the land for pastoral purposes. The respective pastoral leases were not necessarily inconsistent with the continued existence of all native title rights and interests. As with the pastoral leases granted in respect of Western Australia, the pastoral leases we are here concerned with did not confer upon the lessee the right to exclude native title holders from the land. The grants of the respective pastoral leases were therefore ‘non-exclusive pastoral leases’ within the definition in s 248B of the NTA.
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 any 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.”
Consequently I have taken into account that the community and social activities of members of the Goondooloo Moroak 2 claim group on ELA 23048 are subject to the lawful activities of the lessees of Perpetual Pastoral Leases 1067, 2253, 1159 and 1161.
[58] The objection in DO01/129 was also lodged on behalf of the Goondooloo Moroak 2 native title determination claim group. However, in this instance the primary evidence led by the claim group was the Affidavit of Jessie Roberts. ELA 23111 lies to the west and north west of ELA 23048, with both proposed tenements being within 10 km of each other at their closest point.
[59] As with ELA 23048, the native title party in this objection also sought to rely on the previously mentioned passages of Maurice J in the Mataranka Area Land Claim Report. For the reasons previously outlined, I have not found this Report of assistance in making an assessment pursuant to section 237(a) with respect to the grant of ELA 23111.
[60] The native title party seeks to rely on the evidence provided by Jessie Roberts who says that she is a member of the claim group. This fact is not contested by the government party. Ms Roberts says that she is a senior Junggayi with her sister Sheila Conway for Bakalurrpmi country (para 5).
[61] Ms Roberts deposes that there are hunting and fishing places on Goondooloo and Moroak Stations. While there may well be such places on Moroak Station ELA 23111 is wholly comprised within the boundaries of Goondooloo pastoral lease and the focus of the Tribunal’s inquiry is towards contemporary social and community activities that occur within the subject area or which would be affected by the grant of the proposed future act on the subject area.
[62] Ms Roberts says that “we” go by motor vehicle from Jilkminggan community to Elsey Station crossing, past Red Lily Lagoon and then to Gundangala for fishing. Reference is also made to travelling to the top part of Goondooloo within ELA 23111. The government party made these submissions (GPCR DO01/129 at paras 58-59):
“58.The affidavit of Jessie Roberts (at paragraph 8) deposes to his (sic) travelling from Jilkminggan through Elsey Station to Gundangala on Goondooloo Station. No indication of the location of Gundangala is provided in either the affidavit or the ‘attached’ map. Mr Roberts then deposes to “Go for fishing. Sometimes we go on that main track from old Moroak station, past Die Jumb Peak along Moroak Creek right up to that top part of Goondooloo within the ELA 23111.’ By the route described Jilkminggan is 80 kilometres from the proposed licence area.
59. There is no indication as to how frequently this occasional activity occurs or who constitutes the group (‘we”) that Mr Roberts refers to.”
[63] As the government party submits, the evidence of Ms Roberts is vague in key particulars. While Ms Roberts says that she goes fishing at Gundangala on Goondooloo Station, there is no indication as to whether this place is located within ELA 23111. Nonetheless the AAPA map for ELA 23111 supplied to the Tribunal by the native title party on 8 May 2002 has marked on it a AAPA site 5668-52 which is described in the attached AAPA site details as “Gundangala”. I work on the assumption that this is the same place referred to by Ms Roberts. On that basis Gundangala is located at least 25 km south of the proposed tenement and, as such, it is difficult to perceive how exploration activities of ELA 23111 would have any bearing on the fishing and related activities occurring at that place. Moreover, there is no indication in Paragraph 8 of her Affidavit who engages in the hunting, fishing and foraging activities outlined, let alone whether all, a majority or only some of them are members of the claim group.
[64] There is also some doubt as to the frequency of the community and social activities deposed to. While Ms Roberts says that during the dry season such activities are carried out almost on a daily basis no mention is made of what occurs during the remainder of the year. Presumably during the wet season such activities are much more infrequent and localised. Nonetheless she says that during the dry season “people” go hunting on Goondooloo and Moroak stations. While that may well be the case, it is only the community and social activities of relevant native title holders that is the focus of a section 237(a) predictive risk assessment.
[65] Ms Roberts does go some way towards clarifying who the “people” are, or at least directing the Tribunal towards specific persons. Firstly, she refers to Mr Willy and his family (at para 9). Insofar as the Tribunal has already considered Mr Willy’s Affidavit earlier, there is no need to again traverse that evidence. The only matter that needs to be addressed is that Mr Willy’s direct evidence of the area where he and (presumably) members of his family primarily engage in hunting and fishing (between Mole Hill and Moroak) is quite some distance from ELA 23111. While it is possible from the very large and diverse area that he outlined in his Affidavit where he goes hunting and fishing, that there would be some occasions when he visits the land and waters that comprise ELA 23111, however such cross-overs would not be very frequent. Indeed Mr Willy says (at para 6) that his country goes “right up north to Radniyu, same as that waterhole, you call him Rodney Waterhole”. In fact Rodney or Radniyu waterhole is marked on a map produced by the native title party on 8 May 2002, and it is more than 10 km east of ELA 23111. Accordingly, Mr Willy specifically deposes that his country (which presumably is the primary country he hunts and fishes in) falls outside the subject area of this inquiry. In short, I am not satisfied, on the basis of Mr Willy’s own evidence, that the land and waters that comprise ELA 23111 are used frequently by him or members of his family. This view is consistent with the description of the country that Mr Willy and his family travel over, as given by Ms Roberts. Insofar as the land and waters of ELA 23111 play any part in the hunting, fishing and foraging activities of Mr Willy, it would appear from Ms Robert’s own account that they are not central.
[66] Secondly, Ms Roberts refers to Mr Jeffrey Waller and his family going into Bukalurrpme country. Ms Roberts describes Mr Waller (at para 4) as a senior Mingirringgi, and I have no reason to doubt that he is a relevant native title holder and does engage in community and social activities on the proposed tenement. However, it is entirely speculative, on the basis of the fleeting nature of the evidence given, to:
(a) confidently say exactly what he and members of his family do,
(b) determine how many members of his family accompany him or independently
engage in such activities,
(c) find that such activities occur on a regular basis, and
(d) determine whether they are limited to a particular part of ELA 23111 or occur
throughout the subject area.
The native title party has not chosen to provide to the Tribunal either an Affidavit or Witness Statement from Mr Waller or any members of his family. In the circumstances, therefore, Ms Roberts reference to Mr Waller does not materially assist the Tribunal.
[67] Ms Roberts says that she resides at the Jilkminggan community. The government party made these submissions on the evidence of Ms Roberts (GPCR DO01/129 at paras 60-62):
“60. From the maps supplied by the Government Party and the Objectors it is apparent that the ‘main track’ through Goondooloo runs along (or over) Moroak Creek for a distance of only approximately one kilometre within the proposed licence area. Mr Roberts is deposing to ‘sometimes’ going fishing in this one spot which is over 80 kilometres by road from his residence by the route he describes. He also (at paragraph 9) deposes to fishing and hunting ‘down the river’. Which river is not specified, but there is no river within the proposed licence area.”
[68] The government party’s observations are pertinent. Ms Roberts Affidavit is replete with references to various places, however very few of those places are located within the subject area. Moreover, there is scant specificity of where the community and social activities actually occur within ELA 23111. Previously its has been pointed out that Ms Roberts evidence is very vague about who engages in the community and social activities deposed to, and the fact that there is very little evidence that the persons who engage in such activity are in fact members of the claim group. Insofar as she refers to Mr Willy as a native title holder who may engage in social and community activities in ELA 23111, his own Affidavit previously considered in the context of the inquiry into the granting of ELA 23048, fails to provide much material to support Ms Roberts.
[69] There is another matter alluded to by the government party which is of potential importance. Ms Roberts say she is of the Jilkminggan community. This community is not marked on any of the maps provided by the parties to this inquiry. However, from the description provided at paragraph 8 of her Affidavit, it would be a very considerable distance from ELA 23111. The government party has estimated it to be 80 kilometres, and this has not been contradicted by the native title party. The large distances that Ms Roberts deposes she travels from her home to various named places in her Affidavit suggests that the land and waters of the proposed tenement are not used intensively by her. If they are, then there is a distinct failure to provide any such information in the Affidavit. Instead the reader is confronted with references to numerous places, some of which are not marked on any maps, and most have little relationship to ELA 23111. Then, despite the fact that next to no evidence is provided of any activities related specifically to the land and waters the subject of this inquiry, generalised statements are made about hunting, fishing and gathering. In summary, the evidence before the Tribunal is vague, sometimes confusing and provides a totally inadequate base for a finding that the grant of ELA 23111 would be likely to result in direct interference within the meaning of section 237(a).
[70] I have previously set out the factors I found relevant to a predictive risk assessment with respect to section 237(a) concerning ELA 23048. Without repeating them, I also find those factors relating to the regulatory regime in force in the Northern Territory, the presumption of regularity and the co-existing rights of the holders of pastoral leases also relevant to ELA 23111.
[71] Three other factors require specific comment.
[72] Like Mr Willy, it is apparent from the Affidavit of Ms Roberts, that she is not opposed to exploration per se. Rather, as she says at paragraph 7 of her Affidavit: “We should be talking to the mining company first, before they go in there.” Condition 18 of the conditions imposed pursuant to section 24A of the Mining Act which requires on site consultations before the commencement of exploration should address these concerns.
[73] Secondly, the area comprising ELA 23111 has been subject to previous exploration licence grants. Moreover, stream sediment sampling has taken place in both the north eastern and south western portions of the subject area. No evidence has been led to the effect that any of this previous activity (albeit not particularly intensive) has interfered in any manner with the community or social activities of native title holders.
[74] Finally, there are no Aboriginal communities on or remotely near ELA 23111. Beswick community is some 30km to the west and Jilkminggan is approximately 80 km south west. The complete absence of any community of native title holders within a reasonable distance of the proposed tenement is another factor which I have taken into account in assessing the risk of direct interference.
[75] In conclusion I am not satisfied on the basis of the evidence and material before the Tribunal that there is a real chance or risk that the grant of Exploration Licences 23048 or 23111 would be likely to result in direct interference within the meaning of section 237(a).
Section 237(b) – Areas or sites of particular significance
[76] The Tribunal has before it no direct evidence from a person identifying themselves as a member of the Roper Valley North claim group, of an area or site which is said to be of particular significance to that claim group. While the Contentions lodged on behalf of the claim group’s objection rely almost entirely on the Affidavit of Mr Willy, he did not assert that he is a member of the Roper Valley North claim group, nor has any person suggested that he is authorised to speak on their behalf. Moreover, the sites mentioned by Mr Willy fall outside the boundaries of the Roper Valley North native title determination application. In these circumstances there is no basis for the objectors in DO01/127 to use the material in Mr Willy’s Affidavit with respect to sacred sites, as a foundation for an objection pursuant to section 237(b).
[77] Nonetheless the Roper Valley North claim group did refer to one site independently of Mr Willy’s Affidavit. It was contended (OSC DO01/127 at para 74) that one site of particular significance was Balubalumarni, which is a waterhole near the road from the Roper Highway to the Kewulyi community. Reference was made to the evidence given by Mr Bulabul to the “on country” hearing heard at the Kewulyi community in November 2001 in relation to objection DO01/13. The following information was provided about the suggested particular significance of Balubalumarni (OSC DO01/127 at para 75g):
“Balubalumarni is a Kangaroo, Kirrimpu, site. In the law of the native title holding group the mining company won’t go to Kirrimpu sites. They are important places because that Kirrimpu has been walking round there. If there were any damage to any of those places, Sammy Bulabul, with his Junggayi and Darlnyin would seek to prosecute them.”
[78] There are a number of problems with this contention. In the first place Balubalumarni is a registered site (AAPA 5768-1), but from the mapping supplied by the native title party it is not located within the boundaries of ELA 23048, but rather is to be found to the immediate west of the very small southern sliver of the proposed tenement. Secondly, the fact that this site is part of a dreaming track does not necessarily mean that it is a site of particular significance within section 237(b). Thirdly, apart from the transcript of the “on country” hearing there is no other material before this inquiry about this site, even in the form of other secondary evidence which the native title party seeks to rely upon and draw to the attention of the Tribunal and the other parties. On the basis of the scant material before the Tribunal, and the absence of any direct evidence, there is not a sufficient basis for determining that Balubalumarni is a site of particular significance. In these circumstances it is not necessary to make a predictive risk assessment pursuant to section 237(b). Even if it had been demonstrated that this site was of particular significance, its location outside of the subject area, the lack of any evidence as to how the grant of ELA 23048 would be likely to result in interference and the nature of the regulatory regime in force in the Northern Territory aimed at minimising the risk of interference to sacred sites, would have resulted in a finding that there was no real chance or risk that the grant of ELA 23048 would have resulted in direct interference with Balubalumarni.
[79] Mr Willy is a member of the Goondooloo Moroak 2 native title determination claim group and, as such, there is direct evidence before the Tribunal about areas or sites of suggested particular significance in objection DO01/128. The sites alleged by the native title party in DO01/128 which are said to be of particular significance have been previously outlined and the AAPA status ascribed to each set out. The only site mentioned by Mr Willy which is said to be of particular significance which is neither recorded or registered is Radinyu or Rodney Waterhole.
[80] The particular significance of Radinyu according to Mr Willy is that it is the northern extent of Gunduburun country (OSC DO01/128 at para 75e). The government party made this submission in response (GPCR DO01/128 at para 83): “The naming of a particular location does not lead to an inference that it is an area or site of particular significance pursuant to section 237(b). The Objectors lead no evidence of the particular significance of this location other than as a boundary marker.” I agree with this analysis of the native title party’s contention. Mr Willy does not suggest that Radinyu is a sacred place, let alone that it is a site of more than ordinary significance to members of his claim group. Instead he simply mentions that this waterhole marks the northern boundary of Gunduburun country. While Radinyu may have geographic significance and utilitarian importance in this context, there is no evidence before the Tribunal which would suggest that it is a site having any particular sacred quality to native title holders or, beyond that, that it has special significance to native title holders in accordance with their traditions.
[81] Of the sites mentioned by Mr Willy which have a AAPA status, the first is a ceremony ground called Ginggan located near Mole Hill. Ginggan has been ascribed a status of 10 by the AAPA and is described as “a small billabong slightly to the south west of the Roper River.” It would appear that Ginggan is located outside of ELA 23048 on the southern bank of the Roper River. The only information that the Tribunal has been given about this site is Mr Willy’s statement that it is a ceremony ground. He does not say that it has particular importance, or even that it continues to be used as a ceremony ground. The fact that a named site is a ceremony ground means, at least, that it is a site of significance. However, the question to be answered by the Tribunal is whether it is a site of particular significance. No attempt has been made to inform the Tribunal about this site in terms of its sacredness, or the role it plays in the traditions of the claim group or native title holders in general. In these circumstances there is insufficient evidence to find that it is a site of particular significance within the meaning of section 237(b). Moreover, even if such a finding were possible, the fact that it lies outside the boundaries of the proposed tenement and that no evidence has been led as to how the grant of the exploration licence would be likely to result in interference with it, would not sustain a section 237(b) objection.
[82] The next site mentioned by Mr Willy is Nuniyn which he describes as a “Rain dreaming place.” Nuniyn is located within the proposed tenement and has been recorded by the AAPA (5668-36; it is spelt “Nunin” by the AAPA) and has been ascribed a status of 12. The AAPA provide this description of Nuniyn: “A tropical lagoon in perinnial(sic) channel of the Roper River approx 5-6 km to the northeast from Mole Hill.” Apart from Mr Willy describing Nuniyn as a Rain dreaming place, no other information is provided on its significance to the claim group. Likewise he also refers to a Bush Turkey Dreaming place called Nyumbuyan. Nyumbuyan has also been recorded by the AAPA (5668-49; the AAPA spells this site “Yumbuyan’) and ascribed a status of 10. As with Nuniyn, Mr Willy does not elaborate on the significance (if any) of Nyumbuyan, other than describing it as a dreaming place.
[83] The government party made the following pertinent submissions (GPCR D001/128 at para 85):
“The association of location with a dreaming does not automatically lead to a conclusion the location is an area or site of particular significance pursuant to s 237 (b). … The evidence of Mr Willy does not disclose that the locations of Nuniyn and Nyumbuyan have ‘myth and song’ associated with them. Mr Willy does not indicate any significant role that these locations play in the dreamings to which he refers. The fact that these locations are asserted as being part of a dreaming of itself does not indicate that they are any more significant than any other named location within a dreaming.”
[84] Mr Willy’s evidence on both of these sites could be described as cursory. While both sites are briefly mentioned and described as dreaming places no other information is provided to the Tribunal on their significance to the relevant native title holders. The mere naming of a place does not automatically confer on it the status of being a site of more than ordinary significance. While in some cases where an area is site rich, the cumulative effect of having numerous and (sometimes) interlocking sites is such that the Tribunal will infer that the particular area has a special or more than ordinary significance. However, this is not the case in this inquiry. The area comprising ELA 23048 is not site rich, and the naming of isolated sites by a native title holder as dreaming places does not of itself explain why the named site is of particular significance. A dreaming track can be many miles long, and along that track there may well be sites of more significance than others. Perhaps in some dreamings all of the sites have a particular symbolic, cultural and religious significance. However in each case it is up the native title holder who has the knowledge, status and authority to explain the situation to the Tribunal. It is not for the Tribunal to speculate nor to make inferences on the basis of passing references as to whether a named place is of particular significance to the relevant native title holders. On matters such as these the best evidence comes from the native title holders themselves, and in the absence of such evidence the Tribunal would, in most cases, not have a proper basis for proceeding with a section 237(b) inquiry. In this matter, the Tribunal has insufficient material to make a finding that either Nuniyn or Nyumbuyan are sites of particular significance.
[85] The native title party also asserted that another area or site of particular significance was Barnubarnu (OSC DO01/128 at para 75f): “Barnubarnu is where Gunduburun country joins up with another Guyal country, Barnubarnu. Guyal ceremony business joins together there [affidavit of Terence Willy [7]]. The main Dreaming of the Barnubarnu group is the Tiwaj (black duck), which is shared with the neighbouring Gunduburun group [Kewulyi Land Claim Report [41]].”
[86] The difficulty the Tribunal is faced with in this instance is that Mr Willy, in fact, makes no mention of Barnubarnu at paragraph 7 of his Affidavit, or elsewhere. The Tribunal notes this analysis of the evidence provided by the government party (GPCR DO01/128 at para 86):
“ … There is no reference to a location with this name in Mr Willy’s affidavit although it is marked on the map said to be attached to that affidavit near the community of Bringung. There is also reference in the Objectors’ Contentions to paragraph 41 of the Roper Valley Land Claim Report. Examination of that paragraph suggests that Barnubarnu is in fact not a site or location but rather a clan group. It would appear there is no ‘site’ named Barnubarnu at all.”
[87] A perusal of paragraph 41 of the Roper Valley (Kewulyi) Land Claim Report indicates that the term “Barnubarnu” can refer to a group of persons and not a site:
“The Kewulyi (Roper Valley) group and the Gunduburun (Mole Hill) group are both closely associated with a third group, the Barnubarnu. … The estate of the Barnubarnu group is to the immediate north-east of the Kewulyi estate. Barnubarnu people are closely linked with the Kewulyi group, the two being able to act as ‘junggayi’ to each other during ceremonies. The main Dreaming of the Barnubarnu group is the Tiwaj (black duck) which is shared with the neighbouring Gunduburun group.”
Ironically, however, a closer reading of the Report highlights that there may well be a site called “Barnubarnu” or “Duck Ponds”, namely a waterhole near the Bringung excision – see paragraph 34. It may well be that the place marked on the map attached to Mr Willy’s Affidavit is in fact the place referred to by Olney J at paragraph 34. Nonetheless, the clear purport of the native title party’s Contentions is that Barnubarnu is in fact the name for the country of a group of persons and there is no material before the Tribunal from the native title party indicating that the Barnubarnu relied upon as a “site” of particular significance, is in fact the waterhole described by Olney J.
[88] Accordingly the assertion by the native title party about Barnubarnu country does not support a finding pursuant to section 237(b). The native title party simply highlights the fact that there is a group known as the Barnubarnu who share the black duck dreaming with the Gunduburun group. While this may be of potential relevance in the context of more detailed evidence, of itself it does not address the key issue in any section 237(b) assessment, namely the identification and explanation of areas or sites of particular significance.
[89] Finally, the native title party asserts that Gunduburun near Mole Hill is a site of particular significance. In that regard reference is made (inter alia) to paragraph 34 of the Roper Valley (Kewulyi) Land Claim Report where Olney J said:
“Tiwaj (black duck) is a Dreaming found in several areas. Tiwaj left water lily seeds and bulbs at a site near the Bringung excision. … Tiwaj also flew to Mole Hill (Gunduburun), to Jerdjerdga on Hodgson Downs and to Belnggawan in the centre of the claim area, and then down Packsaddle Creek, over various Kirrimpu Dreaming sites before return to Barnubarnu and the general Roper River area.”
While Olney J describes Gunduburun as a Tiwaj Dreaming site, no such explanation is given by Mr Willy. He says that Gunduburun is one of the main places for this country, but he does not explain why. In the absence of any description of the importance of Gunduburun by any member of the claim group it is not open for the Tribunal to find that it is a site of particular significance within the meaning of section 237(b). In any event even if such a finding were open, it is clear from the description of Gunduburun that it is located outside of the proposed tenement, and it is not clear from the native title party’s submissions how the grant of the proposed exploration licence could be said to pose any real risk or chance of interference with it.
[90] In conclusion, the evidence before the Tribunal lodged by the native title party in objection DO01/128 does not establish that there are any areas or sites of particular significance within the meaning of section 237(b), and, as such, there is no basis for proceeding with a predictive risk assessment.
[91] No evidence has been led, or contentions made, by the native title party in objection DO01/129 that there are any areas or sites of particular significance which would be likely to be interfered with by the grant of Exploration Licence 23111. In these circumstances there is no basis for proceeding with a predictive risk assessment pursuant to section 237(b).
[92] In conclusion, there is insufficient material before the Tribunal for a finding that the grant of either Exploration Licence 23048 or 23111 would be likely to result in interference to any areas or sites of particular significance as the evidence before the Tribunal does not establish the existence of any such areas or sites relevant to objections DO01/127, 128 or 129.
Section 237(c) – Major disturbance to land or waters
[93] 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 2001 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 2001. 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.
[94] The evidence before the Tribunal with respect to ELA 23048 discloses that the area of the proposed tenement has been the subject of intensive exploration activity. Mapping produced by the Department of Business, Industry and Resource Development illustrates that explorers have carried out stream sediment sampling over almost every section of the subject area over the past few decades. Particularly intensive exploration has been carried out in the area south of the Roper River east of Mole Hill and west of Kewulyi. Nonetheless this is not the only area that has been subjected to particular attention by explorers, as the area around Maiwok Creek has also been subject to extensive stream sediment sampling.
[95] Despite the intensive exploration activity which has taken place throughout the subject area, and to the south, north, east and north west, no evidence has been led that any such activity has resulted in major disturbance to the relevant land and waters. In fact the only evidence of previous activity which has resulted in interference or damage was that relating to a pastoralist (Mr Ben Tapp).
[96] In contradistinction, the area comprising ELA 23111 has been the subject of far less intensive exploration. Like ELA 23048, the exploration activity engaged over the land and waters comprising ELA 23111 has been limited to stream sediment sampling. Nonetheless, the native title party led no evidence that any previous stream sediment sampling or the associated activities of explorers has resulted in any major disturbance.
[97] It also needs to be borne in mind that both ELA 23048 and 23111 are located in a region where there are a number of existing exploration and mining grants. ELA 23048 is almost totally surrounded by extant exploration licences and only the western boundary of ELA 23111 is not bounded by country over which there is an existing exploration licence. In assessing the likelihood of disturbance brought about by the grant of these proposed tenements, one factor which needs to be kept in mind is the existence of ongoing, or potential, exploration in most of the adjoining land and waters.
[98] In addition, no evidence has been produced either with respect to the land and waters that comprise either ELA 23048 or 23111 that there are any sensitive geological or environmental areas in the proposed tenements which would render it more likely that the proposed exploration activities would result in major disturbance to the relevant land or waters. In both instances the native title parties suggested that the proposed tenements did exhibit special physical circumstances, and reference was made in ELA 23048 to the intersection of the proposed tenement with the Roper River and associated creeks, and the existence of periodic flooding, and in ELA 2311 to the existence of many creeks in the subject area, including Bukalorkmi and Maiwok Creeks. The fact that both of the proposed tenements have watercourses running through them, and that some of the land is subject to periodic inundation, does not of itself render it likely that exploration will result in major disturbance. The mere existence of a watercourse of itself is unexceptional and certainly does not constitute a platform for seriously suggesting that exploration will result in major disturbance. In some instances having regard to the use of the water, its importance to native title holders, the existence of unique fauna and flora which lives in or is dependent on a relevant watercourse, the environmental significance of a particular watercourse, the proposed exploration activity and other pertinent information, the Tribunal may well find that it is likely that the intersection of exploration activity and a relevant watercourse may be such that there is a real risk or chance of major disturbance within the meaning of section 237(c). In these inquiries, however, no such material has been produced.
[99] It also must be borne in mind that there are no communities situated on or immediately adjacent to ELA 23111 which could be directly affected by exploration activities. In the case of ELA 23048 while there are no communities situated on the proposed tenement, there are two communities in close proximity to the subject area, namely Mole Hill and Kewulyi. Nonetheless, no evidence has been led that any of the previous exploration activity has adversely affected either community. The lack of any assertions about previous exploration activity is particularly relevant as the mapping showing previous exploration indicates the most intensive exploration in this general area has taken place in close proximity to both of these communities. It is open to the Tribunal to infer the extensive exploration activity within a relatively short distance of both of these communities over the past few decades, has not resulted in any major disturbance.
[100] Finally it is not clear from the Affidavits of either Mr Willy or Ms Roberts that they are necessarily opposed to exploration. Both Mr Willy and Ms Roberts explain why they want the grantee party to explain to them what is proposed, prior to exploration commencing, and they both want to be able to point out the importance of the country the subject of the proposed tenements. Neither wants the land and waters to be damaged by exploration, and both have traditional obligations to care for country. However, it would appear that there are concerns that proper protocols are followed and that environmentally unsafe mining practices are not adopted, rather than a desire that there be a blanket prohibition on mining exploration. 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.
[101] Finally, I note the grantee party’s submission in each of the objections (Gr1 at [9]) that, should the exploration licence be granted, it will comply with the relevant Northern Territory and Commonwealth legislation as well as the conditions of the exploration licence itself. There is no basis for not applying the presumption of regularity to the grantee party when making a section 237(c) assessment.
[102] 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 mining exploration in the Northern Territory, and the absence of any material suggesting that the subject areas have particular geological or environmental features that call for special consideration, that it is not likely that the grant of either ELA 23048 or 23111 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 23048 and 23111 to Exploration & Resource Development Pty Ltd are acts which attract the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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