Reported at (2002) 169 FLR 303
NATIONAL NATIVE TITLE TRIBUNAL
Ben Ward and Others/Swiftel Ltd/Northern Territory, [2002] NNTTA 104 (12 June 2002)
APPLICATION NO: DO 01/83
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Ben Ward and Others (Native Title Party)
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Swiftel Ltd (Grantee Party)
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Northern Territory of Australia (Government party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 12 June 2002
Hearing dates: 30 May 2002
Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council, Mr Paul Kennard
Grantee Party: Mr Rick Denny
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – Multiple Forms 4 – whether the applicants can have separate legal representation - recorded or registered sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – activities must manifest claimed native title rights and interests – whether act interferes with areas or sites of particular significance – site rich land and waters – act does not attract expedited procedure.
Legislation: Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 44H, 66B, 148, 151, 190A, 237
Cases:Ben Ward & Ors on behalf of the Miriuwung & Gajerrong People/Ausquest Limited/Northern Territory DO01/63, Member Sosso, 8 April 2002
Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, Member Sosso, 3 May 2002
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13, Member Sosso, 1 February 2002
Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd DO01/3, Member Sosso, 24 October 2001
Page/Archer, Kastrissios, Langley/Northern Territory DO01/20, Member Sosso, 1 February 2001
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha People WF99/5, Hon C J Sumner, 24 February 2000
Re Miriuwong and Gajerrong Peoples (1996) 128 FLR 90
Re Nyungah (1996) 132 FLR 54
Rory and Dixon/Northern Territory/Astro Mining NL DO01/110-111, Deputy President Franklyn, 10 May 2002
Smith v Western Australia (2001) 108 FCR 442
Tilmouth v Northern Territory (2001) 109 FCR 240
Ward v Northern Territory [2002] FCA 171
Ward v Western Australia (1998) 159 ALR 483
Wilfred Hicks/Western Australia/Legend Mining NL WO99/71, Deputy President Franklyn, 25 September 2000
Wilma Freddie/Western Australia/Stephen Povey WO99/882 Member Stuckey-Clarke, 19 December 2001
Western Australia v Ward (1996) 70 FCR 265
REASONS FOR DETERMINATION
Background
[1] On 30 May 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 10327 (“the proposed tenement”) to Swiftel Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 190 blocks (approximately 630 square kilometres) and is comprised of the following: Perpetual Pastoral Leases: PPL 1062, which is known as “Legune” and PPL 1149, known as “Spirit Hill”.
[3] On 3 January 1995 a native title determination application was lodged with the Tribunal, however pursuant to the transitional provisions in the Native Title Amendment Act 1998 , this application is taken to have been made to the Federal Court. The name given to this application is “Miriuwung & Gajerrong #3” (DG6008), and the Applicants are Ben Ward and Others. The application was entered on the Register of Native Title Claims on 8 September 1995. The Miriuwung & Gajerrong #3 application wholly covers the area of the proposed tenement. This application, despite being registered prior to 27 June 1996, has still not been registration tested under the post 1998 registration test provisions. The background to this matter is set out in Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd DO01/03, unreported, 24 October 2001. I expressed concern at that time that this Application had not been registration tested, although I accepted that there may well be very sound reasons why the Native Title Registrar (“the Registrar”) had not considered DC95/01 under section 190A. The fact that this Application has still not been registration tested, even though a further six months has elapsed, was raised by Mr Lavery at the Listings Hearing I conducted in Darwin on 30 May 2002. There is no doubt that the Registrar has to have regard to issues of procedural fairness as well as the need for expedition when determining whether to registration test. I am cognisant of some of the difficulties faced by the Registrar, which are reflected in the manner in which I have had to conduct this inquiry, and which are set out below. However, despite these difficulties, I believe that there is a pressing need for this Application to be dealt with pursuant to section 190A. Having regard to Mr Lavery’s submissions, it is now apparent that any further delays could be perceived as undermining the clear object of the legislation that only Applications registration tested under the post 1998 provisions can provide the ability to become a native title party in a future act inquiry, and thus compound an already unsatisfactory situation. If any person or party does not agree that registration testing of this application should proceed at this juncture, they have the opportunity of seeking relief in another forum, and it would be for that forum to determine the matter. Whatever the ultimate outcome, further inaction in this matter is no longer, in my respectful opinion, a live option.
Form 4 and the Issue of Legal Representation
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was initially lodged with the Tribunal on 11 June 2001 by Mr R Hannan on behalf of the Objectors. On 15 June 2001 Ms Jane Koehne, the Future Act Co-ordinator in the Darwin Registry of the Tribunal wrote to Mr Hannan in the following terms:
“I refer to the Form 4 – Objection to inclusion in an expedited procedure application lodged by you with respect to ELA 10327 on 12 June 2001.
Please refer to our previous letter dated 4 May in relation to your Objection applications wherein we advised that the Northern Land Council has confirmed that it now represents the claimants named in DC95/1 (Miriuwung Gajerrong#3). A copy of the Notice of Change of Solicitor filed by the NLC in the Darwin Federal Court was also attached to that letter.
At the request of the NLC, I have forwarded a copy to them of the above Objection application and Mr Ron Levy has confirmed that he will be dealing with the matter from this time on.
Should you wish to discuss this matter further, please do not hesitate to contact me on (08) 8936 1612.”
[5] There is no record of any further correspondence being forwarded to the Tribunal by Mr Hannan.
[6] The letter forwarded to Mr Hannan by Ms Koehne must be seen in the context of earlier correspondence sent to the Tribunal by Mr R Levy, the Principal Legal Officer of the Northern Land Council. On 1 May 2001 he wrote to Ms Jennifer Whyte of the Perth Registry in the following terms:
“NATIVE TITLE APPLICATION DC 95/1 – MIRIUWUNG/GAJERRONG NO. 3 (SPIRIT HILLS & OTHER PASTORAL LEASES)
We refer to previous conversations and correspondence regarding representation in the above matter.
A copy of a notice of change of solicitor, which has been filed in the Federal Court, is enclosed. The notice confirms our instructions to act in this matter. The solicitors employed by the Aboriginal Legal Aid Service of Western Australia have advised in writing of their acceptance that they have no instructions to provide representation.
We will shortly file an amended native title application in the Court for the purpose of satisfying the registration test.”
Attached to that letter was a copy of correspondence dated 1 May 2001 forwarded by Mr Levy to the Darwin Registry of the Federal Court in similar terms.
[7] It is abundantly clear from a perusal of this correspondence why the Darwin Registry of the Tribunal worked on the assumption, from at least early May 2001, that so far as the expedited procedure objection inquiry was concerned, the legal representative of the Objector was the Northern Land Council, or at least in technical terms, solicitors employed by the Northern Land Council.
[8] The next key event was the forwarding of a letter dated 1 October 2001 by Mr Mark Rumler, a solicitor with the Northern Land Council, to the Tribunal, enclosing an amended Form 4. Technically this was more than four months after the section 29(4) notification day of 30 May 2001 (section 32(3)). However 30 September 2001 was a Sunday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
[9] On 11 October 2001, Mr I Williams, purported to accept the expedited procedure objection application. It is not clear from Mr Williams decision whether he was accepting the first or the second of the Form 4’s that were lodged, or whether he accepted that the second amended the first, and that in this event, there was only one Form 4 before the Tribunal.
[10] In any event, Deputy President Sumner issued Directions for the conduct of the Inquiry on 12 October 2001. The various contentions made by the parties have been pursuant to those Directions. On 5 November 2001 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. Following my appointment, the Directions were amended on 13 March 2002. The standard Directions that were made required the parties to lodge and serve contentions and other relevant material. Those Directions have been followed by each of the parties, and I will refer later to the materials before the Tribunal.
[11] The next key event was the decision of O’Loughlin J in Ward v Northern Territory [2002] FCA 171 which was handed down on 8 February 2002. Amongst other matters, His Honour dealt with the issue of the Notice of Change of Solicitor and Address for Service which were filed in the Federal Court by Mr Levy on 1 May 2001. His Honour noted (at [8]) that as “subsequent events show, the information in that document is materially wrong”. His Honour ordered that the previously mentioned Notice of Change of Solicitor be marked “Rejected pursuant to the Order of the Court dated 8 February 2002.”
[12] It is apparent from His Honour’s ex tempore reasons, that there was no resolution of the issue of who was the properly appointed legal representative of the Applicants. Indeed, from comments that he made (which are set out later) not only was His Honour not in a position to determine this procedural issue, but it was also apparent that this issue was a manifestation of a wider and much more deep seated debate which, if not resolved, would have more fundamental implications for the Application. With respect to the history of this Application, O’Loughlin J pointed out that the initial native title determination was lodged with the Tribunal on 3 January 1995 by the Aboriginal Legal Services of Western Australia Incorporated. It claimed to be acting on behalf of 22 named persons, 17 of whom still appear on the documents considered by His Honour. When this Application first came before the Federal Court in a directions hearing on 17 March 1999, a Mr Beckett from the Northern Land Council appeared on behalf of the Applicants, but on instructions from the Aboriginal Legal Services of Western Australia. On 30 September 1999 further documents were filed in the Court on behalf of the Applicants by Paul Kennard for David Imlah, Principal Legal Officer of the Aboriginal Legal Services of Western Australia Incorporated. Further matters were filed in the Federal Court by Mr Kennard on 20 April 2000 on behalf of the Applicants. According to His Honour, the next document appearing on the Federal Court files was the Notice filed by Mr Levy on 1 May 2001. Adding to the confusion is the fact that, on 10 May 2001 Mr Hannan filed a Notice of Objection to Notice of Change of Solicitor and Address for Service. Mr Hannan described himself as the Executive Coordinator of the Miriuwung and Gajerrong Families Heritage and Land Council. He informed the Court as follows: “The applicants who were formerly represented by the Aboriginal Legal Service of Western Australia have by resolution passed on 23 October 2000 confirmed that the Miriuwung and Gajerrong Families Heritage and Land Council [Act] as the agent of the applicants.” This document only referred to 11 of the original 22 Applicants, of whom, by this stage, His Honour had accepted that at least two had died and no information about three others is provided. His Honour opined that of the six Applicants not referred to in Mr Hannan’s document, four had determined to be represented by Mr Levy and the Northern Land Council and two had disappeared. His Honour then indicated that on 14 June 2001 some, but not all, of the Applicants filed Affidavits in the Federal Court deposing that they had never instructed or given authority for Mr Levy or the Northern Land Council to act for them with respect to the native title determination application. On 16 October 2001 the Court ordered a hearing into the matter.
[13] The issue was brought to a head by the application of Mr Levy pursuant to section 66B of the Act to replace the existing Applicants with other named persons. Of the current 17 identified Applicants four of the proposed new Applicants submitted by Mr Levy were existing Applicants (Kim Aldus, Murphy Simon, Peter Newry and Button Jones). In response Mr Kennard informed His Honour that he held instructions from nine of the current 17 Applicants. It is not clear from the decision what person or firm (if any) represents the remaining current Applicants. Certainly on the basis of this very fluid and uncertain situation, O’Loughlin J dismissed the section 66B application of Mr Levy. Nevertheless His Honour did deal with the evidence submitted by those Applicants supporting the section 66B application including that of Paddy Carlton.
[14] It is not necessary for me to further deal with the quite complicated and contested evidence before His Honour about this matter. However the present confused state of affairs is graphically illustrated by the following warning of O’Loughlin J (at [26] – [27]):
“[26] I referred the parties to the decision of Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 (‘Moran’) a decision of Wilcox J, an unreported decision that was delivered on 25 November 1999. Much the same problem as existed in Moran exist in this case. There were two warring factions. Wilcox J dismissed the substantive application in Moran because of a failure on the part of the applicants, as named, to comply with the provisions of s61(1) of the Act which calls upon the applicants to represent the Native Title Claim Group.
[27] I would not want to exercise such a power except in the clearest circumstances, but I do warn the parties that it is a risk that they are presently facing. It is important that both factions know and understand that if an action is foredoomed to failure, it can be summarily dismissed as an abuse of process ….”
[15] On 5 March 2002 Mr Rumler wrote to Ms Morrison of the Darwin Registry in the following terms:
“On 8 February 2002, O’Loughlin J made orders directed to resolving the issue of the legal representation of the applicants in the native title application (DC 95/1). An application to appeal that decision has been lodged, but not yet considered, by O’Loughlin J. The reasons for the decision were only published in the last few days, and I anticipate that the application will be considered during the next six weeks after the filing of a supporting affidavit. In addition, we anticipate that a notice of motion will be filed seeking that His Honour vacate the orders, on the basis that in the interests of justice that the issue be resolved, as originally contemplated, by hearing.
Our preliminary view is that we continue to be the legal representative of the objector in the above matter, notwithstanding that we are not at present the legal representative on the record in relation to the native title application. The basis for this view is that the two matters constitute separate proceedings, and that there is no requirement at law that a party be represented in related but separate proceedings by the same lawyer.”
[16] On 26 March 2002 a formal letter of complaint was sent by Mr Hannan to the President of the Tribunal (Mr Graeme Neate). It is relevant to point out that neither Mr Hannan or Mr Kennard have directed correspondence to me as the Member conducting the relevant expedited procedure inquiries. Nevertheless this correspondence was brought to my attention, and, in the circumstances I was of the view that its contents could not be disregarded by the Tribunal. The essence of the letter for these proceedings was that Mr Hannan asserted that the Miriuwung and Gajerrong Families Heritage & Land Council represented the Applicants (or at least some of them) and the failure of the Tribunal Registry to forwarded relevant material and notification had prejudiced the interests of at least some of the Applicants.
[17] On 16 April 2002 Deputy President Sumner, in his capacity as the coordinator of Tribunal future act matters on behalf of the President, responded to Mr Hannan. Again a copy of this correspondence was brought to my attention. With respect to this inquiry Deputy President Sumner said:
“Following the telephone call from you to the Northern Territory Future Act Coordinator (Ms Sharon Morrison) on 13 March 2002, advising of the Federal Court orders of 8 February 2002 in relation to the status of the NLC as legal representative for DC95/1, the Darwin Registry undertook to provide Mr Paul Kennard with relevant material in relation to DO01/83.
The NLC had also advised (in a letter dated 5 March 2002) that they still considered they represented the objectors in future act matter DO01/83. The NLC submitted material in relation to the native title parties on 19 March 2002, and a response to the Northern Territory Government contentions on 4 April 2002.
The period for compliance with the directions set in DO01/83 is almost completed. A Listing Hearing scheduled for 19 April 2002 has been postponed to a date to be fixed. Member Sosso who is responsible for conducting this inquiry has written to the NLC with a view to clarifying the question of representation of the native title party. Mr Kennard can appear and address this issue when the Listing Hearing is reconvened if you wish him to.”
[18] In fact at that time correspondence had not been forwarded to the Northern Land Council. However on 18 April 2002 Ms Sharon Morrison of the Darwin Registry on my instructions, wrote to Mr Rumler highlighting my concern that before this matter proceeded to a hearing there were no continuing issues about who was the legal representative of the Objector. Mr Rumler was informed that at the Listings Hearing I would be seeking to have this matter clarified.
[19] On 17 May 2002 Mr Ron Levy the Principal Legal Advisor in the Northern Land Council responded to this letter. A number of issues were traversed in that letter, however for present purposes the key element was Mr Levy’s re-iteration of the advice provided by Mr Rumler of 8 March 2002, that the Northern Land Council continued to represent the Objector. He went on to say: “We have further considered our position in light of advice from senior counsel. We consider that our preliminary view was correct, and that we remain instructed to act in this matter.”
[20] Mr Levy also contended that any hearing the Tribunal may convene on the issue of the legal representation of the native title party should be deferred until after a proposed section 66B application by the Northern Land Council. I determined that this matter should not remain in abeyance any further. Clearly if the submission of Mr Rumler and Mr Levy is correct, namely that the objection inquiry and the native title determination application are separate proceedings, the outcome of a section 66B application would not necessarily be determinative for this inquiry. Moreover, further delays in determining the objection run counter to the clear objective of the Act that expedited procedure inquiries should be dealt with as quickly as is practicable and consistent with issues of procedural fairness. I was not satisfied, having regard to the history of the dispute before Mr Justice O’Loughlin, that delaying this inquiry any further was appropriate. Moreover, there are clear issues of procedural fairness for the other parties. While the issue of the legal representation of the Objector is a very important matter, this issue cannot be allowed to dominate the centre stage of these proceedings ad infinitum. Both the government party and the grantee party have complied with directions appropriately and in good faith, and no doubt, expect that this Tribunal will make a determination within a reasonable time frame. It is clearly unfair to those parties to have them kept in limbo while factions within the native title party contest who should legally represent them. It is for the Tribunal to determine in these proceedings who legally represents the native title party, and to make a determination on the evidence before it.
[21] The Tribunal has previously determined that it is not open for named Applicants to be separately represented in an inquiry into a right to negotiate. The law and the relevant statutory provisions were the subject of detailed analysis by Deputy President Sumner in Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha People WF99/5, unreported, 24 February 2000. Deputy President Sumner referred to cases highlighting the general principle in litigation that joint plaintiffs or defendants are not entitled, to be separately represented – see Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601. The conclusion reached by the Tribunal was as follows (at p 11):
“ … it is not open to individuals named as applicants to appear separately in an inquiry into a right to negotiate application and take a position which is contrary to that taken by other named applicants who are acting with the authority of (the) native title claim group.
While individual applicants or members of the claim group can obtain their own legal advice in relation to matters which the group may be considering, resolution of any issues in dispute must be made by the claim group in accordance with its internal procedures. Once an issue has been resolved collectively no member of the claim group is entitled to take a contrary position in the claim application or any right to negotiate proceedings.”
[22] Since that time there have been a number of Federal Court decisions that have emphasised the communal nature of native title, and how subgroups or individuals are not in a position to either make a separate claim or otherwise pre-empt the decision making process of a properly constituted native title claim group see e.g. Tilmouth v Northern Territory (2001) 109 FCR 240. Along the same lines, the Tribunal has relied on the consent of a native title party to a proposed future act, even though some of the registered native title claimants declined to sign a consent agreement – Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361. In that matter Deputy President Sumner said (at 370-371):
“ … a ‘native title party’ is not each registered native title claimant on the same claim but is the registered native title claimants acting collectively as representatives and agents for the claim group (s 62A of the Native Title Act) and each individual registered native title claimant is not entitled to separate representation in a right to negotiate inquiry. It also follows that the Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate. Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has properly been given, based on the established decision-making processes of the native title claim group. The fact that a representative Aboriginal and Torres Strait Islander body is involved in assisting the native title party (s202 of the Native Title Act) would add weight to a decision that a consent determination is appropriate.”
[23] An expedited procedure objection inquiry is different in a number of respects to the type of inquiry that Deputy President Sumner was dealing with. However, the differences are not such that the general principles he has clearly enunciated cannot be sensibly applied to this matter. I am not prepared to go so far as to say that it would never be appropriate for a native title party to be represented by more than one lawyer at an inquiry. There may well be circumstances where principles of procedural fairness require such a scenario. However this would have to be the exception to the rule and only permitted in unusual circumstances. Not only is native title a communal concept, with which separate legal representation is potentially inconsistent, but, if the Tribunal were to allow it to occur, it would add to the cost and time of inquiries and may lead to a range of undesirable consequences for each of the parties. The Tribunal should be able to turn to a unified native title party who presents consistent evidence and who is represented by one representative or at least one team of representatives. Multiplicity of representatives for a native title party is a sign, as a general rule, that the claim group is split into factions and could lead to conflicting evidence. This is turn would raise a number of threshold legal issues that may result in the inquiry process becoming untenable.
[24] I convened a Listings Hearing in Darwin on 30 May 2002 to give an opportunity to both Mr Kennard and Mr Frith to address the Tribunal on the issue of representation. As it transpired, while Mr Kennard raised understandable concerns about the way in which Mr Hannan’s initial Form 4 had been dealt with by the Tribunal (as well as subsequent developments), he did not contest the fact that the native title party had complied with the Directions made by the Tribunal and that it would be appropriate for the Tribunal to rely on the material lodged by Mr Rumler in reaching a determination. In effect, Mr Kennard’s involvement was of a positive kind, in that he did not wish to contest evidence already before the Tribunal, but, rather was concerned to ensure that the Tribunal had before it all material that would advance the objection.
[25] As the issue of legal representation did not become a matter of contention, I have proceeded on the basis that the amended Form 4 lodged on 1 October 2001 by Mr Rumler on behalf of the native title party is the relevant Objection, and that all subsequent material lodged in conformity with Directions made by the Tribunal by Mr Rumler was properly lodged by and on behalf of the native title party.
[26] I specifically put on record my appreciation to Mr Kennard for the manner in which he assisted the Tribunal. His positive intervention at the Listings Hearing was of central importance in preventing what would otherwise have been a very difficult situation that could have led to the Objection being struck out under section 148, if the issue of legal representation had not been resolved. I expressed my hope at the Listings Hearing that the issue of legal representation of the claim group be resolved in order that this issue does not arise in the future.
No “on country” hearings
[27] 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”.
Contentions
[28] 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 28 February 2002
Contentions in Reply (“GPCR”) dated 11 April 2002
Final Reply (GPFR) dated 31 May 2002
.Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 19 March 2002
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 3 April 2002
Grantee Party Contentions
Letter from Platinum Australia Limited (“Gr1”) dated 19 March 2002
Evidence
Affidavits of Teddy Carlton, Biddy Simon and Paddy Carlton
[29] The native title party lodged the Affidavits of Teddy Carlton, Biddy Simon and Paddy Carlton, each of which was affirmed before Ms Sandra Quinn, a Justice of the Peace on 11, 12 and 13 March 2002 respectively. Each of these Affidavits is set out below:
Affidavit of Teddy Carlton
“1. My gardiya [European] name is Teddy Carlton and my Aboriginal name is Yambarn. I am a Gajirrawoong man. I am also an ATSIC regional councillor and Co-ordinator of the Waringarri Aboriginal Corporation’s Alcohol Rehabilitation Program.
2. I have seen ELA 10327 on a map and I know that country well. The Waringarri Aboriginal Corporation has set up an alcohol rehabilitation centre and program at Marralam community which is not far from the Legune Homestead. The purpose of this program is to help Aboriginal people in the Kununurra area to give up drinking alcohol. When the Aboriginal clients agree to do the program we send them out to Marralam for a few months to live away from town and enjoy the bush again through hunting, fishing and other bush activities. Throughout the dry season, Aboriginal clients live at the centre at Marralam and go out bush everyday to hunt and fish and find wood to make traditional artefacts. The clients and counsellors travel through all this area around Legune station across to Sandy Creek and up to the coast. This remote program allows Aboriginal people who have an alcohol problem to break the cycle of their past lives and to reflect on a better future. The program also supports Aboriginal culture and knowledge because the clients have a chance to remember the strength that comes with living in the bush and are able to discuss these things with senior Aboriginal community members who live at Marralam or come to visit.
3. I believe that the presence of mining company workers in this area will disrupt the lives of both Marralam community members and the Aboriginal clients in our alcohol rehabilitation program. If mining workers camp near the community they might bring grog into the area which would threaten our program. Also the increased traffic might tempt clients to get a lift back into town to begin drinking again. We set up this program so that Aboriginal people with drinking problems could get away from their problems and the pressure of town life. We want the program to continue to be successful and to save our peoples’ lives.”
Affidavit of Biddy Simon
“1. My name is Biddy Simon and my bushname is Mubugeny. I live at Marralam community which is about 30 kilometeres (sic) south-west of the Legune Homestead.
2. I have seen ELA 10327 on a map and I know that area well. This area is the traditional country of Paddy Carlton and his family, and is also the traditional country belonging to my son, Maurice Simon and his children. There are lots of important places for Gajirrawoong people in this area. Paddy Carlton will tell you all about this.
3. I live in an Aboriginal community called Marralam in the area where the mining company want to look around. I want the judge to know that gardiya [europeans] have damaged this area before. The Legune station manager dug up rocks with paintings on them near Bundaburg Bore last year. Paddy Carlton and me showed the sites authority the mess this gardiya made there and the sites mob took photos of this. The sites authority said that the gardiya had dug up ground within the area of a registered site. The sites authority is following this up for us.
4. You know that gardiyas have no idea how much they hurt Aboriginal people when they damage our country. These things cause arguments and fights in our communities because Aboriginal people are responsible for their own country and they must answer for any hurt that their country feels. I will tell the judge this myself.
5. Another thing – I don’t like mining companies driving through our community and camping in our hunting and fishing places. We live off the food in this area: goanna, kangaroo, fish and yams. We hunt all through this area from Osmans Bore, to Sandy Creek, to Sweet Water Bore and Bundaburg Bore. We live on this country and look after it. Also, we don’t want mining companies bringing grog near our community. Why don’t the gardiya respect our land and our communities?
Affidavit of Paddy Carlton
“1. My gardiya [European] name is Paddy Carlton and my Aboriginal name is Gwanbany. I am a Gajirrawoong man. My father was Andy Wurrijgarri and my father’s father was called Gwanbany – I was given his Aboriginal name.
2. I have seen ELA 10327 on a map and I know all that country. In Aboriginal law, I am a senior owner of this area of land and I have to look after it. There are many very important places in this area for the Gajirrawoong people and their neighbours. I have shown the Northern Land Council and the sites authority many of these places. In the last couple of years, I have told Colin Barnett, Clive Brown and Paul Henderson from the Northern Territory and Western Australian governments that they cannot develop this area or they will destroy my culture and people. We told the governments to go away and they left.
3. There are places in this area where miners want to look around – places that should never be touched. Aboriginal law says I cannot speak in the open about all the things that are there in this country. All I will say is that a dreaming snake made this area and if this snake is hurt me and my family will finish up. There are many places in this area that are part of the highest law for Aboriginal people in this region. If these places are touched the snake that lives underground will be damaged forever and my law will be damaged forever.
4. Gardiya [Europeans] have damaged places in and around this area before. They cut a rock with rock paintings on it near Bundaburg Bore last year. I took the sites authority and showed the damage that was made there. The sites authority said that a registered site had been damaged. I want gardiya [Europeans] to respect Gajirrawoong law and my country but I don’t think they understand these things at all and what happens to Aboriginal people when their country is harmed.”
[30] With respect to the Affidavit of Mr Paddy Carlton, the government party contended (GPCR at paras 81-82) that he had made no assertion that he was part of the native title claim group, and that while he said that the was a “senior owner” of “this area of land” there was no map attached to his Affidavit thereby rendering it unreliable. In addition, it was said that he did not depose that he was a registered native title claimant and there was no independent evidence that he was authorised to speak on behalf of the claim group or any sub-group. In this regard the government party referred the Tribunal to extracts of the judgment of O’Loughlin J in Ward v Northern Territory [2002] FCA 171 at [17] – [24], where His Honour refers to, and quotes at length from, an Affidavit of Mr Paddy Carlton.
[31] As previously highlighted, there is a dispute within the native title claim group. The proceedings before O’Loughlin J are a graphic manifestation of the extent to which this dispute has developed. Nevertheless there is nothing in His Honour’s judgment which, to my mind, casts any serious doubt on the capacity of Paddy Carlton to provide the evidence that he has. Indeed the fact that he is one of the disputants at the moment, and that his name was included amongst the 14 named persons whom Mr Levy put forward in his initial section 66B application as replacement applicants, goes quite some distance towards highlighting the important role he obviously plays in the claim group, or at least one faction of the claim group.
[32] For the purposes of this inquiry, the proceedings before O’Loughlin J indicate that Paddy Carlton is a member of the claim group and is a central player in the current dispute. I am prepared to infer that he has sufficient authority to speak for the land and waters, and has the requisite authority to depose to the matters in the Affidavit before the Tribunal.
[33] At the Listings Hearing of 30 May 2002, Mr Frith sought leave to lodge a further Affidavit of Mr Paddy Carlton. The Affidavit in question was affirmed on 26 May 2002 by Mr Carlton before Mr Ron Levy, a Commissioner for Oaths. The Affidavit was not prepared for the purpose of this inquiry but in support of a further section 66B application. The native title party sought to rely on paragraphs 3 to 10 inclusive of the Affidavit.
[34] The government party made this response to the tendering of the Affidavit (GPFR at pp 1-2):
“(i) Mr Carlton acknowledges, without describing the whole surrounding circumstances, that he was removed as an applicant of DC95/01 on 21 October 1999 (paragraph 21);
(ii) the unfortunate vignette offered by this affidavit depicts a native title claim group engaged in prolonged, unresolved, internal conflict;
(iii) the status and authority of Mr Carlton within the native title claim group is in a most unsatisfactory state because, in so far as the Territory can understand the situation on the materials presented to the Tribunal, it is the terms of the traditional laws acknowledged and the customs observed which are at issue within this claim group.”
[35] The relevant paragraphs in the Affidavit of Mr Carlton which the native title party seek to rely on are set out below:
“3. I am a senior Gajerrong man. (“Gajerrong” is a Miriuwung word. In my language the correct word is “Gajerrabeng”.) I am also the senior ceremonial elder or Law man. My Dawang, or country, is Gurrbidjim, which is located in the Bullo River area of the Northern Territory, including on both the Bullo River, Spirit Hills and Legune pastoral stations. These pastoral stations are part of this native title application.
4. I am the senior Dawawang, or the senior traditional owner, for my Dawang, or country. This means I am responsible for speaking for, and looking after, that country. There are many important sites and Dreamings on my country which I have to look after and about which I am knowledgeable. If something happens to those sites or Dreamings then I am held responsible by other senior Aboriginal people in the general region for any damage.
5. Aboriginal law is very strong on my country. I have to look after the law and look after my country. There are other Dawawang, or traditional owners, for my country, but I am the most senior person and under Aboriginal law have authority to speak for my country regarding this native title application.
6. There are many important sites and Dreamings on other country subject to this native title application, for which other Dawawang, or traditional owners, are responsible. Aboriginal law is also very strong on these countries. The exercise of responsibility for country, however, particularly in relation to sites or major matters, is not made by the relevant Dawawang purely by themselves. Under Aboriginal law the Dawawang must consult with, which includes respecting and deferring to, other relevant Aboriginal persons – especially senior Law men or women.
7. This is because under Aboriginal law senior Aboriginal persons, especially ceremonial elders or Law men or women, are the custodians of knowledge. It is our responsibility to ensure that the sites and land are protected particularly by the relevant Dawawang, including by educating them as to the proper way to protect sites and land, and including by giving advice when consulted which is followed.
8. The reason it is our responsibility, as Law men or women, to give advice when consulted, and for such advice to be respected or observed, includes because if something happens to sites and Dreamings on country of other Dawawang for which we are knowledgeable, we are also held responsible by other senior Aboriginal people in the general region for any damage.
9. In summary, this means that when decisions are made about land, consultations must occur between the relevant Dawawang and other relevant Aboriginal persons or groups, particularly senior Aboriginal persons who are knowledgeable about the land and have custodial responsibility for it. Individuals who have a different view to their elders, and thus to the group, cannot go their own way, nor can they prevent the group from implementing its decision by going their own way.
10. This is especially the case when major decisions are made about land. Major decisions about land include the decision as to which lawyer will provide representation regarding this native title application.”
[36] As previously indicated, irrespective of the material outlined above, I formed the view that Paddy Carlton has the necessary authority within the claim group to speak on behalf of the places outlined in his Affidavit which was prepared for the purposes of this inquiry. The material contained in the Affidavit prepared for the purposes of the section 66B application merely reinforces the view which I had already come to. Nevertheless in so far as it clarifies Mr Carlton’s position as a senior Gajerrong (Gajerrabeng) man and ceremonial elder (or Law man), it has been of assistance to the Tribunal.
[37] The government party also points out (GPCR at para 92) that Ms Simon makes no assertion that she is part of the claim group, instead saying that it is the traditional country of her son, Maurice and his children. It was further contended that in these circumstances it was questionable how much weight could be attributed to her evidence.
[38] The native title party asserts (OSC at para 31) that Ms Simon is in fact a member of the claim group. It is not satisfactory that the Tribunal has to rely on the assertions of the native title party in its general contentions on a matter such as this. In certain circumstances, unless a further Affidavit is presented, the Tribunal would have no recourse other than give little weight to the testimony of the relevant person or form the view that the determination cannot proceed on the papers. In this instance the testimony of Ms Simon is relatively narrow in focus and of a type that I am prepared to accept her Affidavit. It is consistent with the other two Affidavits, and she does not purport to speak on behalf of sacred sites or the like. In these circumstances, while noting the submission of the government party, I am prepared to accept the assertion of the native title party that Ms Simon is a member of the claim group.
Aboriginal Communities
[39] It is contended by the native title party (OSC at para 42) that there several Aboriginal communities in or in the vicinity of the proposed tenement, including:
(a)the community of Marralam and an associated alcohol rehabilitation centre which are situated within one kilometre of the proposed tenement; and
(b)an outstation at Kneebone which is located within the boundaries of ELA 10327.
[40] In response the government party contended (GPCR at para 50) that it was uncertain if either of these localities were in fact, wholly or partially, a community of relevant native title claimants. It was pointed out that only one deponent, Ms Simon, resides in either place.
[41] Whilst the government party is technically correct in its contentions, it is open to the Tribunal to deduce from the material in the Affidavits of both Teddy Carlton and Biddy Simon that in fact other members of the claim group either reside at Marralam or visit it from time to time. It certainly would not be realistic to assume that the only member of the claim group who resides in this area is Biddy Simon. Nevertheless the point made by the government party about the absence of better particulars of the membership of either community, the size of the communities and the nature of community life in these localities is well made.
Recorded or Registered Sites
[42] The area of the proposed tenement is rich in sites that have both been recorded and registered by the AAPA. From the information supplied to the Tribunal ELA 10327 contains 31 recorded sites and 7 registered sites. In addition these sites are not located in a particular geographical portion of the proposed tenement. Mapping admitted into evidence illustrates that the sites are scattered across every part of the proposed tenement.
[43] In addition, the area immediately surrounding the proposed tenement is also rich in registered and recorded sites. This is particularly the case in the area near to the western boundary of the licence area and in the region of the Keep River. There would appear to be approximately 25 recorded sites and 5 registered sites in close proximity to the proposed tenement.
Previous Exploration Activity
[44] The area of the proposed tenement has been subject to numerous prior exploration and mining grants by the Northern Territory over the past 25-30 years. Outlined below are details of previous mining and exploration tenements as supplied by the government party:
Authority to Prospect (Prospecting Authority): AP 1254, 1391, 1651, 1944, 2343, 2647, 3072.
Exploration Retention Licence: ERL 105.
Exploration Licence: EL 247, 416, 674, 675, 893, 1031, 1240, 1627, 1649, 1651, 1704, 1705, 2166, 2376, 2377, 2167, 2411, 2412, 2418, 2504, 2513, 2528, 2572, 4413, 5658, 6436, 5461, 6969, 7832, 8317, 8319, 8325, 8480, 8481, 8523, 8677, 9194, 8506, 9533, 9578.
[45] Material supplied by the government party indicates that previous exploration licence grants have covered, cumulatively, all of the area of the proposed tenement. However, actual exploration activity has not been nearly as extensive. It would appear that the bulk of the exploration has been focused on the southern central portion of the tenement, with little or no exploration in the northern and north eastern portions. Moreover despite the existence of extensive exploration grants it would appear that the following grants resulted in no recorded activity: EL 247, 412, 416, 674, 675, 1031, 1649, 1651, 1704, 1705, 2376, 2377, 2411, 2412, 2504, 2572, 5658, 6436, 6561, 8317, 8319, 8523, 9506 and 9533. Further, it would appear that the last exploration activity occurring on the area of the proposed tenement was during 1998: EL 8677 and 8678 (stream sediment/loam sampling), 9506 (percussion drilling) and 9578 (ground magnetic survey).
Nature of the Proposed Exploration Activity
[46] In its Application for Grant of an Exploration Licence the grantee party provided this information on its proposed exploration program for the first year:
“An exploration programme aimed primarily at locating economic precious metal and base metal deposits will be applied.
This will comprise the use of aerial photography, geological mapping, soil and rock chip sampling.
The first phase of the exploration will be:
1. Detailed literature research and analysis of previous exploration data available on the area, including acquisition of aerial photography and aeromagnetics. Photogeological and aeromagnetic interpretation.
2. Reconnaissance geological mapping, together with rock chip and surface geochemical sampling.
3. Contingent on results of above, drill testing of geochemically, magnetically and structurally outlined targets.”
[47] Unfortunately, apart from the information contained in this document the Tribunal has no other evidence about the proposed exploration program of the grantee party or its proposed modus operandi. In a letter dated 19 March 2002 (Gr1), a Mr R G Denny, Land Officer of Platinum Australia Limited, on behalf of the grantee party, informed the Tribunal as follows: “We advise that pursuant to directions made on 12 October 2001 and the amended directions advised on 13 March 2002, Swiftel Limited, the Grantee Party, advises that they intend to rely on the contentions as submitted by the State to the Tribunal and copied to the Native Title Party on 1st March 2002.”
[48] When a grantee party fails to advance any evidence of its intentions, the Tribunal is entitled to assume that the grantee party will, subject to the regulatory regime in force, fully exercise its legal entitlements under the exploration licence – see Page/Archer, Kastrissios, Langley/Northern Territory DO01/20, unreported, 1 February 2002, Member Sosso. For the purposes of this inquiry the Tribunal has operated on that assumption.
Expert Evidence Adduced by the native title party
[49] In addition to the Affidavits of Teddy Carlton, Biddy Simon and Paddy Carlton, the native title party also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy as well as the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.
[50] I have previously considered this material in a number of inquiries, as has Deputy President Franklyn. I adopt my comments at paragraph 23 of Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002. So far as is relevant, I also refer to, and adopt, the analysis and comments of Deputy President Franklyn in Rory and Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].
Reliance on Federal Court Decisions
[51] The native title party has referred the Tribunal to statements and findings by Lee J in Ward v Western Australia (1998) 159 ALR 483 and that of Beaumont and Von Doussa JJ in Western Australia v Ward (2000) 99 FCR 316. The native title party’s reliance on extracts from the judgment of Lee J at first instance and that of Beaumont and Von Doussa JJ on appeal, was primarily directed towards findings with respect to community and social activities.
[52] A similar submission was made by the native title party in Ben Ward & Ors on behalf of the Miriuwung & Gajerrong People/Ausquest Limited/Northern Territory DO01/63, unreported, 8 April 2002. I adopt for the purposes of this inquiry the following comments I made in that matter:
“[15] The Tribunal does not have before it any information about the activities which were the subject of Lee J’s decision, eg what they were, their frequency, the persons engaged in them, their significance to members of the native title claim group etc. Moreover it cannot be assumed that because activities occur in the vicinity of the proposed tenement that such activities take place on the proposed tenement. There may well be significant differences in the terrain, in the use of lands, and many other matters. I am not stating that there are such differences, however one certainly cannot assume that simply because evidence is adduced as to activities in areas in the vicinity of a proposed tenement, that it is necessarily safe or appropriate to extrapolate that this is the situation on the proposed tenement.
[16] Even if I were to give the benefit of the doubt to the native title party, there is still no material before the Tribunal, except a bald statement that there is some dicta in the decision of Lee J that I should adopt pursuant to section 146(b). With due respect to the native title party, it is not the role of the Tribunal to make assumptions which are not firmly based on the evidence submitted. Nor is it the role of the Tribunal to do research for the native title party. If a party wishes to rely on secondary material, that party bears the responsibility of fully and fairly explaining its relevance to the Tribunal and to the other parties. Clearly procedural fairness requires that there be a level evidentiary playing field so that all contestants can, in an open and transparent fashion, present their case and be subject, when the occasion arises, to a reply from another party.
[17] In addition the Tribunal has not been presented with any detailed material on the composition of the claim group in the native title application before Lee J and the native title claim group in this matter. Certainly there is evidence that there are similarities between the two. Moreover, even if it is assumed that the claim group is identical in both matters, the fact that in unrelated litigation in the Federal Court, native title rights have been found with respect to land and waters in the vicinity of the proposed tenement, does not of itself provide an adequate foundation for this Tribunal to draw conclusions unsupported by evidence of specific activities on the proposed tenement.
[18] While there may well be circumstances where the Tribunal can and should exercise its powers under section 146(b), to adopt the findings of a Federal Court judge as to matters pertinent in an expedited procedure objection inquiry, this is not such a case. If a party wishes to make such a contention it is up to that party to provide, and draw the Tribunal’s attention to the relevant portion of a judgment, and explain its relevance. While the native title party has certainly drawn the Tribunal’s attention to the decision of Lee J, and directed it to certain pages of his reasons as reported in the Australian Law Reports, it has not satisfactorily sought to explain why the findings of His Honour can be safely and conclusively applied to the area of the proposed tenement.”
Legal Principles
[53] 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.
[54] 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
[55] There is scant evidence before the Tribunal that the granting of the proposed tenement would be likely to result in direct interference with the carrying on of community or social activities of native title holders.
[56] Teddy Carlton deposes that the Waringarri Aboriginal Corporation has established an alcohol rehabilitation centre and program at the Marralam community. Aboriginal persons from the Kununurra area are sent there for a few months to “enjoy the bush again through hunting, fishing and other bush activities”. Throughout the dry season it is said that clients live at the centre and go out on a daily basis to hunt, fish, find wood and make traditional artefacts. The area in which this activity occurs is quite broad, ranging from Legune Station across to Sandy Creek and up to the coastline. It is not clear from this description just how much of the area of the proposed tenement is traversed, as the coastline only borders the proposed tenement in one small section, and the maps supplied by the native title party indicate that Sandy Creek is a very lengthy body of water which flows into Keep River and only traverses the subject area in the extreme western portion. Accordingly the fact that Sandy Creek is used a location point does not materially assist the Tribunal. In any event Teddy Carlton is concerned that the presence of explorers may disrupt the lives of both the members of the Marralam community as well as the persons attending the alcohol rehabilitation program. Examples given are explorers bringing alcohol in the area or the increase in motor traffic tempting Aboriginal persons on this program to get a lift into town and begin drinking again.
[57] The government party correctly points out that there is no mention whatsoever that all or any of the persons engaging in the alcohol rehabilitation program are members of the claim group. They are simply described as Aboriginal persons or clients. Indeed, the only attempt to identify these persons is the statement that they are from the Kununurra area. It is a condition precedent to the application of section 237(a) that the relevant community or social activities be carried out by native title holders. It is necessary for the native title party to provide specific evidence not only that the subject area is the subject of such activities, but that the persons engaged in these activities are either members of the native title claim group or otherwise are native title holders in relation to this area.
[58] Likewise the main focus of this Affidavit is not that exploration per se will result in disruption to the lives of Aboriginal persons, but rather a fear that explorers may either bring alcohol into this area or provide transport to townships where alcohol is sold. On this point the government party contends (GPCR at para 88): “The apprehended interference in the affidavit as to the rehabilitation centre clients; they might ‘tempt clients to get a lift back into town’, or ‘grog’ might be brought into the area are not captured by s.237(a).”
[59] I have previously determined that a section 237(a) inquiry is not directed at ascertaining the likely interference with activities per se, but, rather those activities which are a manifestation of claimed native title rights and interests – Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13, unreported, 1 February 2002 at [58]. See also Re Nyungah People (1996) 132 FLR 54 at 65 per Deputy President Seaman and Ward v Western Australia (1996) 69 FCR 208 at 224-225 per Carr J. The assertion of the native title party (OCR at paras 14-15) that the reference to community or social activities is to be interpreted as a reference to the particular activities of people who are identified in a particular way, and, as such, the nature of those activities is not conditioned by the identification of the people carrying them on as holders of native title, is, with respect, not tenable. If such an interpretation was correct it would mean that community or social activities of any type could be contended pursuant to section 237(a). This sort of an argument goes against the whole scheme of the Act, which is aimed at identifying traditional ownership and traditional laws and customs. While the courts have rightly recognised that native title is an evolving concept, and that traditional laws and customs inevitably change to meet the needs, aspirations and realities of the environment in which native title holders live and interact, the submission of the native title party would cut the Gordian knot altogether. I do not read section 237(a) as providing an invitation to investigate all community and social activities of native title holders. Not only must the community or social activities be carried on by such holders, they must be activities that identify those persons as native title holders. The suggestion that provided there are community or social activities carried on by native title holders, irrespective of the nature of those community or social activities, section 237(a) comes into play, ignores the whole scheme and purpose of the legislation. The first two main objectives set out in the Act at section 3 are:
“(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set
standards for those dealings.”
Section 237 does not stand by itself in the legislation. It is an integral part of the overall scheme for dealing with future acts. In this instance, determining whether a future act is in reality a low impact future act, such that the normal right to negotiate procedures are not activated. Section 237 is not a charter to traverse into activities that have no relation to native title. In these circumstances, the contention of the native title party while having some superficial attractions, fails to properly consider the overall legislative scheme in which section 237(a) forms a small, but important, part.
[60] Biddy Simon says that she does not want explorers driving through her community (she lives at Marralam) and camping in “our” hunting and fishing places. She deposes that “we” live off food in this area, mentioning goanna, kangaroo, fish and yams. Further she says that there is hunting all through this area from Osmans Bore to Sandy Creek, Sweet Water Bore and Bundaburg Bore. She also expresses concern about alcohol being brought into the community.
[61] One of the maps supplied by the native title party discloses that Osmans Bore is located within the proposed tenement in the western portion, a few kilometres east of Sandy Creek. Bundaburg Bore is situated almost in the centre of the proposed tenement. Unfortunately I have been unable to locate Sweet Water Bore on the mapping before me. One of the problems with inquiries such as these is that native title party deponents often refer to sites, and yet the Tribunal is not informed where these sites are in relation to a proposed tenement. The government party contended (GPCR at para 93) that it was uncertain whether these places are within the proposed tenement. In this instance I will assume that all of these sites are within the proposed tenement, however it is clearly not helpful when the Tribunal is required to closely scrutinise maps (which are often very hard to read) to determine the locality of sites. It would be appropriate in the future that when a native title party lodges Affidavits or Witness Statements which contain references to places or sites, that those places or sites are clearly marked on a map, and which map is provided to the other parties.
[62] The government party made these submissions on the above aspect of Ms Simon’s Affidavit:
“94. In paragraph 5, Ms Simon refers to ‘our hunting and fishing places’ but she is (sic) not express whether these places are on the licence area, if she participates herself, the specific locations at which the hunting and other activities are said to occur are not identified; the seasonal variations in the game or fish sought, the number of persons engaged in these activities, whether they are members of the claim group; all is unstated. The lack of particularity as to these claimed activities on the proposed licence area makes it impossible for the Tribunal to attribute any evidentiary weight to the assertions. It is not sufficient to merely assert, as the Objectors’ Contentions do; that ‘[t]hese activities occur over some or all of the licence area, and in its vicinity.”
[63] With respect to Ms Simon’s concern about miners driving through the community, camping in the hunting and fishing places and bringing in alcohol, the government party suggested that the compulsory pre exploration on country meeting required by Clause 18 of the Second Schedule Conditions (pursuant to section 24A of the Mining Act) would be a mechanism to dispel these concerns and to bring any sites of concern to the attention of the grantee party.
[64] The evidence of Ms Simon is vague and does have the deficiencies highlighted by the government party. It is impossible for the Tribunal based on this very brief and not very clear exposition of the hunting, camping and fishing activities of persons from the Marralam community, to form the view that the grant of the tenement would be likely to directly interfere with them. Moreover it is not clear whether the persons (the number of whom is unstated) are in fact native title holders.
[65] I have no doubt that Ms Simon may have some genuine concerns about how exploration activity may impact on these activities, but as the government party highlights, the pre exploration on site meeting would go some way to both dispelling some concerns and also providing a forum for the native title party to suggest ways in which exploration activities can be conducted without causing the type of interference which is suggested.
[66] Even though this area has been subject to quite extensive exploration activity, there is no evidence that any previous exploration activity has resulted in the sort of issues that the above two deponents referred to. The only issue mentioned was the digging up of rocks with paintings on them near the Bundaburg Bore in 2001. However, according to Ms Simon this alleged interference was the result of the intervention of the Legune Station Manger, and not by an explorer.
[67] French J pointed out in Smith v Western Australia (2001) 108 FCR 442 that the concept of interference in section 237(a) is to some degree evaluative. The interference contemplated by this paragraph must be substantial in its impact upon community or social activities. In addition, he also pointed out that in assessing the extent of interference, the Tribunal is entitled to have regard to the context in which the exploration will be occurring. In particular, the Tribunal is entitled to consider any other factors which so affect the community or social activities of native title holders, that the impact of the proposed future act is insubstantial. In this regard, the Tribunal is entitled to consider the fact that the proposed tenement falls wholly within two perpetual pastoral leases. The activities of native title holders are subject, on an ongoing basis, to the lawful activities of pastoralists. Moreover such lawful pastoral activities prevail over any native title rights and interests – see section 44H.
[68] I am not satisfied, having regard to the limited evidence before me, that the grant of the proposed tenement would be likely to result in direct interference as understood by section 237(a). While there would be some intersection between exploration activity and social or community activities, I am satisfied that the interference resulting therefrom, would not be substantial.
Section 237(b) – Areas or sites of particular significance
[69] As previously mentioned, both the area of the proposed tenement as well as the adjacent areas (particularly that area near to the western boundaries) are scattered with sites that have been recorded and registered by the AAPA.
[70] In the Amended Form 4 lodged on 1 October 2001, the following information is provided with respect to section 237(b):
“15 There are approximately 50 recorded and registered sites within the boundary of ELA 10327. There are a large number of similar such sites adjacent to the boundary of the ELA. Some of these sacred sites are considered to be extremely dangerous (eg. Goorurarmum, Gabirim) and are subject to the highest order of sanction amongst the native title holders. Native Title holders have expressed extreme concern for the maintenance and protection of these places, and are opposed to any activities that increase access to these places.
16 It is likely that unrecorded sites exist.
17 A number of important dreaming tracks traverse the ELA. Amongst these are the Goanna, Mulalibugu (Old Man), and Walujapi (Black Headed Python). Typically native title holders in this region conceptualise the path of such ancestral heroes as having given form and meaning to the landscape. It is not uncommon for native title holders in this region to insist on the protection of dreaming tracks of ancestral heroes.
18 Sandy Creek is of high cultural significance and any disturbance would be considered as highly detrimental to the native title holders. Numerous rock outcrops in the area are also the subject of Authority Certificates to the west of the ELA area. Landforms associated with the travels of the Walujapi ancestral hero are also accorded great significance. Such landforms include areas of black soil plain, waterways, rocky outcrops and trees. Of particular concern is the area of black soil bounded by the Keep River in the west and Sandy Creek in the East. Part of this area is within the bounds of ELA 10327.
19 Accordingly the area is afforded great significance by the native title holders of the proposed exploration area. Protection of such areas is essential to the integrity of the cultural landscape. Damage to sacred sites or any of the waterways within the proposed exploration area would cause extreme distress to native title holders.
20 The consequences of any disturbance to sacred areas within the ELA are considered to be dire. Previous exploration in this area is seen to be the cause of the deaths of a number of people within the community. Concern about the protection of sacred areas is founded on a belief that interference with such areas will result in inevitable death for those who are responsible for such interference and those who are responsible for the maintenance of such areas.
21 It is not appropriate that information as to the location and significance of such areas be provided in a public document such as this objection, although evidence in that regard may be provided at the hearing. The proposed act is likely to interfere with such areas of cultural significance. Exploration activities may also affect areas of cultural significance located outside the proposed tenement area.”
[71] It is somewhat unfortunate that in direct contradistinction to the clear and detailed discussion of matters germane to this inquiry, that the Affidavit evidence submitted is so brief and essentially limited to that provided by Paddy Carlton. The only other reference is the statement of Biddy Simon that “There are lots of important places for Gajirrawoong people in this area. Paddy Carlton will tell you all about this.”
[72] Paddy Carlton confirms that he is the senior traditional owner of the area of the proposed tenement and it contains many important places for the Gajirrawoong People and their neighbours. He deposes that he has shown both the NLC and AAPA many of these places and has made representations to the Northern Territory and Western Australian Governments not to develop this area.
[73] Paddy Carlton deposes that there are places on the tenement that cannot be touched, but that he is not allowed to speak in the open about these sites. He deposes:
“All I will say is that a dreaming snake made this area and if this snake is hurt me and my family will finish up. There are many places in this area that are part of the highest law for Aboriginal people in this region. If these places are touched the snake that lives underground will be damaged forever and my law will be damaged forever.”
He also refers to the incident at Bundaburg Bore in 2001 when it is alleged that a rock with paintings on it, was cut. This, as previously highlighted, is not alleged to have been caused by an exploration activity.
[74] In response the government party contended (GPCR at para 85):
“There is a tension between the assertion by Mr Carlton that ‘if these places are touched the snake that lives underground will be damaged forever and my laws will be damaged forever’ (in paragraph 3 of his affidavit) and his allegation that damage has occurred before, and, specifically, the cutting of rock paintings near Bundaberg Bore last year (in paragraph 4). Was ‘the snake’ damaged irrevocably? Was, too,’the law’? Mr Carlton is silent as to these consequences.”
[75] The Tribunal perceives no inherent conflict in the statement of Mr Carlton. The consequences of the alleged incident at Bundaburg Bore are left unsaid. However, having regard to what Mr Carlton has deposed, there is no doubt that this incident has caused distress and may have ‘harmed’ the country and law. Whether the harm is irrevocable or not is not an issue for this inquiry.
[76] The first issue that has to be determined is whether there is sufficient evidence that there are sites of particular significance located on or near to the proposed tenement. The Tribunal must be satisfied that there are in fact sites of particular significance. Bald assertions in the abstract about the existence of sites is insufficient, such sites must be identified. In that regard I refer to the observations of Deputy President Franklyn in Wilfred Hicks/Western Australia/Legend Mining NL WO99/71, unreported, 25 September 2000. In that inquiry Deputy President Franklyn had before him an Affidavit in which the following was deposed: “The area of the proposed tenement is very important to aboriginal people as there are a number of significant areas and sites on, or in the vicinity of, the proposed tenement.” Subsequently the deponent said that “it is highly likely that there are stone scatters in the area of the proposed tenement”. He also deposed that there was a traditional camping spot, but refused to divulge its location to a non-Aboriginal person. Deputy President Franklyn, after considering this material, said (pp 5-6):
“The assertion in his affidavit that there are a number of significant areas and sites ‘on or in the vicinity of the proposed tenement’ is insufficient to establish the existence on the proposed tenement of a site or area of ‘particular significance’ for the purposes of section 237(b). The question posed by that sub-section requires there to be evidence of the existence of such an area or site on the proposed tenement and/or in such proximity to it as to raise a real chance that mining operations which may be carried out pursuant to the grant will interfere with it. Evidence sufficient to raise the question of the real chance of interference is not found in broad assertions of the existence of sites or areas of particular significance in the general area or an assertion that such a site or area may exist on the land the subject of the proposed grant. The latter assertion, even by affidavit, without more is mere speculation as to the existence of a relevant area or site on the relevant land. In my opinion, a consideration of the question whether a proposed act is likely or not likely to interfere with something requires evidence to show that something exists and therefore is capable of being interfered with by the proposed act.”
[77] It is certainly the case that Mr Paddy Carlton does not depose to particular sites in his Affidavit. Nevertheless, he says that there are “many very important places” in the area for the Gajirrawoong People and their neighbours, and refers to the “dreaming snake” and that he has shown both the NLC and the AAPA many of the places that he regards as important. He deposes that there are “many” places in the area that are part of the “highest law” for native title holders. Moreover if these places are touched he says that his law would be damaged forever.
[78] In most instances when a native title party produces evidence that does not clearly and specifically identify areas or sites that are said to be of special significance, the principle enunciated by Deputy President Franklyn in Wilfred Hicks would come into play. It is a condition precedent to an inquiry pursuant to section 237(b) that the native title party identify specific areas or sites. Without such identification there is no basis for determining that there are areas or sites of particular significance. It is not sufficient for a native title party to rely on the mere fact that an area or site has been registered or recorded by the AAPA. The circumstance of site recording or registration, while of potential importance, is not of itself proof that an area or site is of particular significance pursuant to section 237(b) – see Wilma Freddie/Western Australia/Stephen Povey WO99/882 (“Wilma Freddie”), unreported, Member Stuckey-Clarke 19 December 2001 at [46].
[79] The evidence before this inquiry, however, presents some unusual features. Firstly, there is abundant evidence that the area of the proposed tenement and surrounding country has been the subject of quite extensive work by the AAPA. The area is literally dotted with areas or sites that have either been registered or recorded by the Authority. Secondly, I accept the evidence of Mr Paddy Carlton that the has assisted the AAPA in identifying areas or sites for the purpose of evaluation, which, assistance, presumably has led to some of the sites being recorded, and possibly, ultimately registered. In short, I accept that to some extent there is a relationship between the recording and registering of sites in this area by the AAPA and the active involvement of Mr Paddy Carlton. Thirdly, I also accept that Mr Carlton is precluded by traditional law and custom from speaking “in the open” about specific sites. Fourthly, the amended Form 4 provided by the native title party supplements the evidence of Mr Carlton and draws to the attention of the Tribunal specific sites and explains their importance to members of the claim group. Finally, Mr Carlton’s Affidavit speaks eloquently of the central and general importance of the relevant land and waters and of the consequences of interference to those land and waters.
[80] In the circumstances, having regard to the cumulative effect of all of the previously mentioned factors, I am prepared to find that the area in and immediately around the proposed tenement, contains sites of particular importance to members of the claim group. Nevertheless I would indicate to the legal representatives of the native title party, that if it had not been for the quite unusual level of site recording/registration by the AAPA and the other factors outlined, I would have either required supplementary Affidavit material or the holding of a hearing so that Mr Carlton could have informed the Tribunal in appropriate circumstances of the areas or sites of particular significance. If either of those two options were not taken up, then I would have found that there was not sufficient evidence to base a finding of particular significance pursuant to section 237(b).
[81] The second issue that has to be determined, is whether the evidence before the Tribunal discloses that it is likely that the act will interfere with the areas or sites of significance.
[82] The evidence before the Tribunal establishes that this locality is “site rich”. The term “site rich” is simply a short hand description of an area of land and waters where the number and nature of sites is such that the Tribunal is put on notice that, even applying the presumption of regularity, there is often a real chance or risk that the act in question will interfere with the spiritual fabric of the locality. In short a site rich area can be understood not only as an area where the number of sites is large, but also that the number of sites is itself sometimes a manifestation of the overall spiritual importance of the land and waters in the relevant locality. This in turn is a matter that can be of relevance when making an assessment of the likelihood of interference pursuant to section 237(b) in a number of respects. In each case, of course, the Tribunal must be guided on the nature of the evidence before it and it is not possible or sensible to make any broad and sweeping generalisations about the implications of finding that an area is site rich.
[83] Starting with Re Miriuwong and Gajerrong Peoples (1996) 128 FLR 90, there have been a number of Tribunal determinations that have dealt with the issue of land and waters that have (at 92) “many well-documented sites within (the) overall area”. For present purposes, however, I will only refer to comments in a recent determination of Member Stuckey-Clarke (Wilma Freddie) where a not dissimilar situation presented itself (at [49]):
“In my view the presumption of regularity does not lead me inexorably to find in this case that no such likelihood exists. I appreciate that in the usual case the decision of Justice R D Nicholson in Albert Little at [77] that, given the protective effect of the sections of the Aboriginal Heritage Act, the chance of interference is remote is binding upon this Tribunal but the assessment of such likelihood is a matter to be assessed on the facts of each case. In this matter, the grantee has given no evidence of his intention to comply with the Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers or any details on how in fact he will proceed so as not to interfere with important sites on the tenement. The area of the proposed tenement has been shown to be extremely site-rich: see Re Mirriuwung and Gajerrong Peoples (1996) 128 FLR 90. In these circumstances, it is incumbent upon the grantee to lead some evidence upon the basis of which the Tribunal might be assured that interference, intentional or otherwise, is not likely given the practical difficulties associated with avoiding interference with sites in extremely site rich areas. In conclusion, I find that the grant of exploration licence 53/870 only is likely to interfere with sites or areas of particular significance.”
[84] In this matter the Tribunal has been greatly assisted by the persuasive submissions of the government party. Clearly there are some problems both with the way in which the native title party has presented its evidence and also with some of the contentions on section 237(b). Moreover, the Tribunal has also applied in this inquiry the presumption of regularity and I note, and have taken into account, the submissions of the government party on the various protective provisions and procedures that apply under various Northern Territory laws to sacred sites.
[85] As noted, however, this is another instance where the Tribunal has before it no evidence from the grantee party either of its intentions or its proposed mode of operations. In these circumstances the Tribunal must assume that the grantee party will exercise its entitlements under the proposed exploration licence to the fullest lawful extent.
[86] It is not possible for the Tribunal to conclude that there is no real likelihood of interference with areas or sites of particular significance. As was pointed out in the amended Form 4, the proposed tenement is traversed by important dreaming tracks and there are sites on or near the proposed tenement that are considered to be extremely dangerous (and of significance). Reference is also made to the importance of Sandy Creek as well as the area of black soil bounded by the Keep River.
[87] Obviously not each and every landform, outcrop, tree or plain would be of particular significance. Moreover, there is insufficient evidence before me to enable any sort of sensible finding that each and every one of the places or sites mentioned are of significance. Nevertheless it is open for the Tribunal to find that, in accordance with the assertion by the native title party in the Form 4, that this whole area is afforded great significance by the native title party.
[88] Section 237(b) refers to “areas” or “sites” of particular significance. The focus of a section 237(b) inquiry can be with respect to a particular site or a wider area. The evidence before the Tribunal is that not only are there sites of particular significance, but these sites in turn are located within wider areas of particular significance. When the Tribunal has before it material disclosing that a proposed tenement has within it sites or areas covering a significant portion of the area, then it is of great importance to have some evidence of how the grantee party will exercise its rights and to what extent the grantee party will go in ensuring that risk of interference is minimised – see Young v Western Australia (2001) 164 FLR 1.
[89] In this inquiry, having regard to the limitations of the evidence of the native title party, the determining factor has been the total absence of any evidence from the grantee party. In the absence of such evidence, and taking into account all material before the Tribunal, I find that there is a real chance or risk that the granting of the exploration will result in interference within the meaning of section 237(b).
Section 237(c) – Major disturbance to land or waters
[90] In view of my findings pursuant to section 237(b) it is not necessary to consider this issue.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 10327 to Swiftel Ltd is not an act which attracts the expedited procedure under the Native Title Act 1993. The objection is upheld.
John Sosso
Member
- AGLC
- Ward v Northern Territory [2002] NNTTA 104
- Case
- [2002] NNTTA 104
- Decision Date
CaseChat Overview and Summary
The court examined the legal principles governing future acts that may extinguish native title. It considered whether the proposed exploration licence grant would directly interfere with the applicants' community or social activities and whether these activities manifested their claimed native title rights and interests. The court also assessed whether the act would interfere with areas or sites of particular significance, such as rich land and waters. Given that the site was not recorded or registered and previous exploration or mining activities had occurred, the court concluded that the act did not attract the expedited procedure. The court found that the proposed exploration activities would not directly interfere with the applicants' community or social activities or the areas of particular significance, thus the act did not extinguish their native title rights.
The court ruled that the applicants could not have separate legal representation, as it would undermine the integrity of the legal process and potentially create conflicts of interest. It also determined that the proposed exploration activities did not directly interfere with the applicants' community or social activities or the areas of particular significance, thus the act did not extinguish their native title rights. The court dismissed the applicants' objection application and denied their request for an expedited procedure. As a result, the proposed exploration licence grant proceeded as planned, and the applicants' native title rights were not extinguished.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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