WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd
[2002] NNTTA 17
•1 February 2002
Reported at (2002) 169 FLR 62
NATIONAL NATIVE TITLE TRIBUNAL
Michael Page/Northern Territory/Michael Daniel Teelow, [2002] NNTTA 17 (1 February 2002)
Application No: DO01/22
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of a Future Act Determination Application
Michael Page (Native Title Party)
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Northern Territory of Australia (Government Party)
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Michael Daniel Teelow (Grantee Party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 1 February 2002
Hearing dates: 10 October, 5, 9, 16 and 30 November 2001
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
Grantee Party: Self represented
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – conflicting evidence – issue of credibility – nature of proposed exploration activity – whether act interferes with community life – whether act interferes with areas and sites of particular significance – major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.
Legislation: Mining Act (NT) s24A
Native Title Act 1993 (Cth) ss 29, 32, 77, 237
Cases:Hicks/Western Australia/Legend Mining NL WO99/71 25 September 2000 Deputy President Franklyn
Jones v Dunkel (1959) 101 CLR 298
Little v Western Australia [2001] FCA 1706
Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13 1 February 2002 Member SossoNorthern Territory/Risk (Larrakia)/Phillips Oil Company Australia DF97/1 9 February 1998, Professor D Williamson QC
Re AK and Commissioner for Superannuation (1986) 11 ALN N106
Re Bessey and Australian Postal Corporation (2000) 60 ALD 529Re Perring and Australian Postal Corporation (1993) 31 ALD 693
Re Rodgers and Secretary, Department of Social Security (1991) 24 ALD 720
Risk v Williamson (1998) 87 FCR 227
RPS v R (2000) 199 CLR 620
Smith v Western Australia (2001) 108 FCR 442
Teelow/Page/Northern Territory DO01/22 10 October 2001 Member Sosso
Victoria/Yallourn Energy Pty Ltd/Bull & Ors VF99/1, 2 September 1999 Hon C.J.Sumner
REASONS FOR DETERMINATION
Background
[1] On 13 December 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 22600 (“the proposed tenement”) to Michael Daniel Teelow (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 19 blocks (a block is approximately 2.9 square kilometres) and is located wholly within Perpetual Pastoral Lease 1134, which is known as “Mary River East”.
[3] On 5 December 2000 a native title determination application was filed with the Federal Court (D6018/00). The name given to this application is “Mary River”, and the Applicant is Mr Michael Page. The application was entered on the Register of Native Title Claims on 4 January 2001. The Mary River application wholly covers the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal within four months (9 April 2001) after the section 29(4) notification day (13 December 2000) – section 32(3). The named Objector, Mr Michael Page, is also the abovenamed Applicant. I have previously determined that the Form 4 Objection has been properly accepted by the Tribunal pursuant to section 77(2).
[5] Deputy President Sumner convened preliminary conferences of the parties on 3 May and 11 July 2001, and on the later date issued Directions for the conduct of the Inquiry. The various contentions made by the parties have been pursuant to those Directions. On 1 October 2001 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. Following my appointment listings hearings were convened on 10 October, 9, 16 and 30 November 2001.
[6] 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 19-9-2001
Contentions in Reply (“GPCR”) dated 17-10-2001
Final Contentions of the Government Party (“GPFC”) dated 6-12-2001
Native Title Party Contentions
Statement of Contentions of Objector (“OSC”) dated 4-10-2001
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 17-10-2001
Objector’s Reply to the Reply of the Grantee Party (“ORGr”) dated 29 October 2001
Response to Tribunal Matters (“ORTM”) dated 6-12-2001
Grantee Party Contentions
Submission from Mr Teelow (“Gr1”) dated 7-10-2001.
Letter from Mr Teelow (“Gr2”) received 16-10-2001
Affidavit of Mr Teelow (“Gr3”) dated 27.11.2001
Letter from Mr Teelow (“Gr4) dated 10.12.2001
[7] In addition, the grantee party also gave oral evidence to the Tribunal when it convened in Darwin on 16 November 2001. The grantee party, who was not legally represented, was briefly cross-examined by Mr Frith, who represented the native title party. Mr Lavery, on behalf of the government party, did not seek leave to cross-examine. The circumstances that led to the grantee party giving direct testimony to the Tribunal are outlined hereunder.
[8] The grantee party made a submission on 7 October 2001 in the following terms:
“I apply to the tribunal to have all objections to the granting of ELA 22600 and expedited procedure struck out the reason being NLC representatives ignored deputy President Sumver’s (sic) ruling. Deputy President Sumner gave them a 6-day extension to the 2nd October 2001 to lodge their submissions with the parties. I received my copy on the 05/10/01. It was posted on The 04/10/01. Also they did not supply me all the information, as there is reference to affidavits that was not supplied with the NLC submission to myself. I formally apply to the Tribunal to have all objections to the granting of ELA by NLC STRUCK OUT IMMEDIATELY.”
[9] At the listing hearing on 10 October 2001, I invited submissions from Mr Frith and Mr Lavery to the grantee party’s submission, and also invited any further submissions from the grantee party that he wished to make. After hearing from each of the parties I determined not to dismiss the expedited procedure objection application pursuant to section 149. The grantee party requested that I give written reasons for this decision, and these are located in Teelow/Page/Northern Territory DO01/22, 10 October 2001.
The grantee made a subsequent request (Gr4) for the Tribunal to dismiss the expedited procedure objection application, and this application was likewise denied.
The Evidence
Witness Statements of Bessie Coleman, Roy Anderson and Lazarus Ford
[10] In addition to the above contentions, the native title party also submitted three Witness Statements. The signed Statement of Bessie Coleman, dated 1 October 2001, was witnessed by E C Ah Toy JP. The signed Statement of Roy Anderson dated 28 September 2001 was witnessed by Mr Mark Rumler, a Solicitor with the Northern Land Council. The signed Statement of Lazarus Ford, dated 9 October 2001, was witnessed by Edward James Lowe, a Commissioner for Oaths.
[11] The government party (GPCR at paras 37, 41 and 44) pointed out that none of the abovenamed persons had deposed that they were members of the native title claim group. This matter was subsequently addressed by the native title party (ORTM at paras 2-4), who informed the Tribunal that each of the deponents was a member of the native title claim group.
[12] The Witness Statement of Bessie Coleman is set out in full below:
“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 22600. I have seen a map of the area of the ELA. Now produced and shown to me marked “BC-22600” is a map of the ELA.
2. There are a lot of sites on the map from men’s side, so I can’t know them. But them fellas ought to know and the young ones need to be taught. My uncles probably put those sites on that map when they were still alive.
3. I grew up at Mary River Station until my teenage years. I worked from 15 at Mary River Mine. My mum and my uncle were there. She took us all round there, digging yam and looking for porcupine.
4. We go along Evelyn Creek for fishing. Near the old Oenpelli Road and the crossing
5. I got involved in mining in the fifties and sixties. I’m not going to see that happen again. They leave their rubbish everywhere. That exploration will make it hard for our fishing places. Pollution and cyanide or any dirty water getting into our rivers. We want to go along and see what they are doing, and make sure they’re doing the right thing.
6. Me, I don’t like mining. Them men camping out there and drilling everywhere; I worry about pollution, them leaving rubbish everywhere. Makes us not want to go. I don’t like seeing that flagging and tape everywhere. If I see it I won’t go fishing, I won’t take our kids there with all that chemical stuff. I am worried about exploration putting things in the water and killing off fish and animals. I don’t want the kids to go swimming there. I don’t want them eating fish or turtle; it might make them sick. Are they going to test the fish and foods we eat up there?
7. To me its all the same thing; mining, exploration, digging – its all disturbing the country. Drilling disturbs those hunting areas and changes the country. It will change the way we hunt on country. We don’t follow the roads, we go through the bush. We know the country. We go by motor car and footwalking to catch porcupine and kangaroo.
8. I used to work at Moline and stayed there after the Moline Mine finished. I used to look after my friend’s children there.
9. The road through the ELA goes all the way through. It’s a shortcut to Werenbun. I’ve been on that back road. That Werenbun mob use it all the time.”
[13] The Witness Statement of Roy Anderson is as follows:
“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 22600. I have seen a map of the area of the ELA. Now produced and shown to me marked “RA-22600” is a map of the ELA.
2. I live at Werenbun in the Northern Territory. We use the road to Wandie that goes through the mine at Moline. The road goes through the area of ELA 22600.
3. Norman, Allan and Joe Fisher – they were all owners of that Moline mine and then Coronation Hill and El Sherana. That was Bula country. They all got hookworm and died.
4. That Moline track: we go there hunting kangaroo, goanna, quiet snake, turkey. We drive through, leave the cars and go footwalking, looking for pig and porcupine. It’s a rough road. Bobby Markham was out there recently. I was out there last year. We might go twice a year. We’d go more often but we got no good motor car here.
5. If them explorers go there, we’ll still go just to keep an eye on them and see what they’re doing. They might disturb that hunting ground. There’s good tucker there: goanna, porcupine.
6. Moline is just a big mess. There is still a big crusher thing there – you can see it. They made a mess down Evelyn Creek and O’Neill Creek a few years ago. They had a dam there. Someone should be checking that one out – doing monitoring. I’m worried about that water for drinking.
7. I used to work through there in the sixties catching scrub-bull with Joe Fisher’s sons. There was a stockyard there. There was a village at Moline. We used to go into Moline to see the movies at the picture-house.
8. That’s good country for Gouldian Finch; there are flocks and flocks. Them birds use all the billabongs to drink from. Exploration might poison the waterholes for those birds, and for kangaroos and goanna. That Gouldian Finch is called Bierdt in Jawoyn language. I want to see the birds still round that area. There’s a creek for those birds there. It’s a special area for them.
9. Wrens live there in the ant hills. You can’t knock them down. There’s also kingfishers through there. All that country should be monitored. Fires might destroy all the nesting places for them birds. I’m worried about them being burnt out.”
[14] The Witness Statement of Lazarus Ford is also set out in full below:
“1. The area of the Mary River (D6018/00) native title determination application includes the area of ELA 22600. I have seen a map of the area of the ELA. Now produced and shown to me marked “LF-22600” is a map of the ELA.
2. I live at Pine Creek in the Northern Territory.
3. Moline is on ELA 22600. At Moline there’s a track right through. Often the white gate at the start of that track is locked. Where that gate is means we have to go around. We go back up towards the Mary River Roadhouse. There’s another track from the road, that is not on the map, and that joins up that track behind Moline, and also with the Wandie track near ELA 10418. The track from Moline goes all the way through to the community at Werebun; it is a shortcut road. We go out there shooting pigs and turkey.
4. Exploration means drilling. It’ll scare away all the animals and ruin our hunting.
5. We’d be worried to keep going out shooting if the mining company mob is around. We might have an accident and shoot one of them. They might get mad with us and tell us to stay out of their way or get off their track. They’ll complain if we are there, or if we are firing shots. If the mining company is there, we don’t go.”
Grantee Party Submissions
[15] The grantee party in this inquiry, Mr Teelow, is also the lessee of Perpetual Pastoral Lease 1134. Mr Teelow informed the Tribunal that he purchased this property in December 1986. He still resides on the property, although due to medical treatment spends a considerable amount of time in Darwin.
[16] The grantee party’s initial submission (Gr1) raises matters that are in stark contrast to some of material contained in the above Statements. In particular, the grantee party directly contradicted statements by Mr Anderson about the state of health of Norman, Allan and Joe Fisher. This conflict between the evidence of Mr Anderson and Mr Teelow became the focus of some attention by the Tribunal and divergent submissions from the parties. In this context it is necessary that the relevant parts of the grantee party’s contentions be set out:
“My home is there [i.e. in the area of the proposed tenement] I live there, there is always someone there. To enter you have to come past my house unless you fly. If you want to go to the south, Wandi and Werenbun. In other words, you have to go past my house. The other track is unserviceable and blocked off and has been not used for years. The terrain is such you have to drive past my house. We would hear vehicles and go and investigate
Intruders to mining lease 1059 (This is a current mining lease within ELA 22600) would have to cut the fence if the gate was locked. This has never happened. Vehicles leave tracks, people leave tracks. If hunting were taking place we would hear the vehicle, hear the gunshots, hear the people, see their tracks. (Believe me these people do not walk anywhere) and go and send them on their way. But first they have to go past my house. When I say past my house, I mean within 20 mtrs of it.
The only aboriginals I have seen hunting on Mary River were VRD people from Pidgeon Hole. They were discharging a firearm on the Kakadu highway at a wallaby on the highway. They were going to Jabiru for a funeral.
It is against the law for black man or white man to discharge a firearm on a main road. I promptly sent them on their way.
Bessie Coleman
This lady has not been on the ELA area in my time at Mary River station. Nor has she been on the station in my time. After making inquiries it was told to me this lady’s family came from the Boorooloola area. (Her husband is a white man named Jeffery Coleman. He used to work as a police aid in Pine Creek. I know Jeffery. The person who told me was an aboriginal named George Ahwon. George came from the same area as her family. George is dead now. He used to work for me when I was the slaughter man and boss of the McArthur River abattoir. He again worked for me driving a bull truck at Gimbat in 1988. George was a good honest man who never drank alcohol and I held in high regard. He used to stay with Bessie and her family in Pine Creek. George was my friend.
Roy Anderson.
Mr Anderson worked for Allen Fisher at Mary River in the mid 1960;s. Mary River was then owned by David Holdings. Allen Fisher purchased Mary River from David Holdings in about 1978. Mr. Anderson was taken to Mary River as a stockman from the Materanka area. I met Mr. Anderson at Materanka for the first and only time at Materanka when I was mustering Materanka station in 1986. Joe Fisher never had anything to do with Mary River. He was the mine manager at Moline. Joe Fisher did not die of hook worm in the mid 1960’s, he lives in Darwin. I know him personally. I last saw him three weeks ago. Allen Fisher did not die of hook worm. He is alive and well at Swim Creek station., I purchased Mary River station from him on 9/12/1986. I doubt if Mr Anderson ever new (sic) Norman Fisher. He was killed in a car accident on the kakadu highway near Pine Creek in 1957.
Mr Anderson’s reference to Gouldian finches. There are finches on Mary River, but not at Moline or in the surrounding area. I never allowed anyone to shoot birds of any kind on Mary River. This included aboriginals. When I first came to Mary River I would go 12 months without seeing a bustard. (Turkey) Now they are sighted in small flocks daily. This is a result of my policy. This would not have happened if people were out shooting them.
The reference made by Mr. Anderson about mining infrastructure. This is not on the ELA. It is on ML1059 and nothing to do with the ELA.
Lazerus (sic) Ford.
I have never met or seen this person. Who is he; does he go under another name? He defiantly (sic) has not been to Moline…
FOOT NOTE
No aboriginal people have been hunting or passing through to hunt on ELA22600 or adjoining land in my time. None have passed through to go to Werebun either. The only people to pass through are other miners, Telstra, when they visit the satellite weather station at Wandi, and Mines Department employees. These people always ring to make sure the gate is open and ask for permission to traverse my mining lease to go about their business. Permission to pass through is not denied to people with a genuine reason to pass through. They only go to Wandi if they really need to as the road is all washed out.
To get to Werebun through Moline and Wandi is impossible and has been this way for six or seven years. It has been impossible to cross the Ferguson River and traverse the track since the big floods of 1995, which washed away and scoured out the river and creek crossings. The same happened again in 1998 and 2000. Do you think these people would try to get to Werebin (sic) through Moline and Wandi when they can get there on a sealed road? No way would they. They rarely carry one spare tyre. To try to scrub bash through there they would destroy all their tyre’s and not get to where they were going. The old genuine aboriginal is not silly. He is too smart for that. I also notice no old traditional aboriginals lodged any affidavits and objections either. They are too smart and too honest for that also.
ELA22600 covers an area of 19 blocks. It has been explored and mined since the 1870’s. The entire area has been subjected to some form of mining at several times or more since then. Every hectare has been soil sampled, every area has been rock chipped, every hill that was a possibility in the old days had exploritry (sic) shafts sunk in them, all creeks were panned or had diggings in them in the old days. Anywhere they found gold, silver or copper, they mined.
Later day mining has seen modern equipment and areas that were mined early in history have been costeined(sic) and drilled as well as sampled and rock chipped. Some of these areas have been re mined. The positive thing about today’s mining is the damage caused by the old miners is being cleaned up. The old shafts are being filled in and the rubbish cleaned up.
In today’s world of mining, miners can’t do the practices they used to do. Permission has to be applied for and granted to disturb the land, bonds have to be placed, and the area of disturbance rehabilitated. Drill holes have to be plugged and drill pads rehabilitated. When this is done the areas return to normal over a very short space in time.
There are no sacred sites registered. There are not sites of significance registered. There are no cultural heritage or social areas. Remember this entire area was given clearance for all the above in 1988-89. They were never granted the area to the south. Jawon(sic) were only granted land further to the south of the land not granted.
There are no permanent waters or billabongs on the ELA. There has been no traditional or other hunters there in my time. I am not in a position to giver or deny the objectors permission to enter the pastoral property, nor do I want to be. They do not have a right to enter or hunt on ML1059 with out permission. No one will be given permission to hunt on the ML as my house is there and my work is there. If a request was made to pass through the ML permission would be given to legitament (sic) passers through. This includes genuine traditional owners who want to hunt on EL22600. The chances of any one being shot by hunters is zero. At exploration stage there are not chemical used. At mining stage guidelines are so strict it would be impossible to poison creeks, fish, turtles and people.”
Differences of Fact: Mr Anderson and Mr Teelow
[17] Apart from anything else, there is a direct factual conflict in the evidence of Mr Anderson and Mr Teelow. Mr Anderson deposed (at para 3) that Norman, Allan and Joe Fisher were all dead due to hookworm. On the other hand, Mr Teelow claimed that both Joe and Allan Fisher were still alive, and that Norman Fisher died in a car accident in 1957. This was not, of course, the only conflict in the primary evidence adduced by the native title party and Mr Teelow, but it was one that could not be explained away as a mere difference of opinion. The difference, moreover, did not involve a primary fact: whether any of the Fishers are alive or dead is not a focus of inquiry for the Tribunal under section 237. Nevertheless the native title party was relying on the truthfulness and reliability of the deponents – including Mr Anderson - to inform the Tribunal of evidence central to a section 237 inquiry. If such a deponent was found to be providing information, which was factually incorrect, then this would be important in an assessment of reliability of the deponent’s evidence and the overall weight that could be placed on the relevant witness statement.
This matter was directly raised by the government party in its Contentions in Reply which were received on 18 October 2001. The following submission was made:
“45. There are serious factual conflicts between statements posited by the Objector and that stated by the Grantee as to people, access and activities. The Tribunal might regard some such conflicts are irrelevant to the issues at hand, however, more generally, the conflicting statements clearly raise questions as to credibility. The Fishers are a well-known Territory family and, should the Tribunal require, the Government party would be willing to ask Messrs Allan and Joe Fisher to depose as to their respective states of health.”
[18] At the listings hearing on 22 October 2001 I drew the factual conflict between Mr Anderson and Mr Teelow to the attention of both Mr Frith and Mr Lavery, and indicated that it was, in my opinion, a serious matter that needed to be dealt with. On 29 October the native title party replied to the matters contained in the grantee party’s material outlined in [16]. So far as the difference between Mr Anderson and Mr Teelow the following explanation was given (ORGr at paras 4-6):
“4. The Objector says that the statements in the affidavit of Roy Anderson regarding Norman, Joe or Allen Fisher are made in a particular context. They are not meant to be misleading or mischievous.
5. The statements are evidence of the importance of country and the belief system inhering in that country for the deponent and other Jawoyn. They are evidence of the deponent’s belief regarding the consequences for any person of mining on Sickness Country. Sickness Country is an area located around the upper South Alligator River. It is an area of cultural sensitivity and prohibition for Jawoyn people. The area is associated with the dangerous ancestral being Bula along with other ancestral beings. The name Sickness Country has developed from the particularly apocalyptic and dangerous nature of this area according to the views of the Jawoyn people. Consequences for a range of inappropriate behaviour in this area include sickness, deformity and cataclysmic events.
6. The label “hookworm” is a gloss on “sickness”, which is perceived to be a consequence of any form of inappropriate behaviour on or around Sickness Country. There is an historical connection maintained by some Jawoyn people, including the deponent, with past mining activity in Sickness Country and a hookworm epidemic amongst Aboriginal people in Katherine during the late 1950s – early 1960s. Use of the language in his affidavit reflects the importance to the deponent of the consequences of inappropriate behaviour on Sickness Country. It is testimony of his views on the power of place.”
The native title party attached to its contentions, and relied on, an extract from Volume 1 of the Final Report of the Kakadu Conservation Zone Inquiry. However, the native title party conceded that the Moline mine is not on Sickness Country, but that uranium ore from the El Sherana mine (which is on Sickness country) was milled at Moline.
It should be noted that the explanation provided by the native title party came in the form of Contentions. The Tribunal was not presented with any primary evidence from Mr Anderson in the form of a supplementary witness statement or affidavit. Whether Mr Anderson’s understanding about the state of health of Norman, Allan and Joe Fisher was due to the importance of country and the belief system of the Jawoyn People or not was not resolved by this document. It is in the nature of the Objector’s rationalisation: which may or may not be correct. Certainly there is nothing in Mr Anderson’s Witness Statement which bluntly and without equivocation speaks of the Fishers’ death, which would reasonably lead the reader to the view that this was meant in metaphorical terms and was part of a belief system in country.
[19] Following receipt of this material a further listings hearing was convened on 5 November 2001 at which all parties participated. I pointed out to Mr Frith that the issues raised by Mr Teelow went to the issue of the credibility of Mr Anderson; whether the Tribunal should place much weight on the evidence he had deposed to. I made it clear that while the state of health of the people in contention was not of central importance to the issues in contention in section 237, it went to the core issue of the credit of Mr Anderson.
[20] Mr Lavery indicated that in the opinion of the government party there was a conflict of fact between the grantee and native title parties, and one which had a bearing on the evidentiary weight that should be given to the Statements lodged by the native title party. The government party submitted that a hearing should be called to allow Mr Anderson to explain the context in which he gave the evidence. Mr Frith informed the Tribunal that he held no instructions on whether a hearing should be held, but that he would not oppose a hearing in Darwin.
[21] The grantee party submitted that the hearing should not be limited to Mr Anderson, and that both Mr Ford and Ms Coleman should also give evidence. I determined that the credit of neither Mr Ford or Ms Coleman was at issue, and that, accordingly, the hearing would be limited to the testimony of Mr Anderson. Mr Frith then queried whether the testimony of Mr Anderson would be limited to the issue of the identity of persons and matters relating thereto, or would be more general. I indicated that as Mr Anderson’s credit was at issue I was not prepared to limit proceedings to the narrow issue of the difference in fact over the health of the Fishers’. I also indicated to Mr Frith that if he had additional expert witnesses he wished to call, I would be prepared to consider expanding the hearing to allow them to give testimony once Mr Anderson’s testimony had concluded.
[22] Just two days after this Listing Hearing (7 November 2001) the Northern Land Council wrote to the Tribunal. The Northern Land Council took the view that the Mr Anderson’s credit was not at issue, and, further, sought to have the hearing set down for 16 November 2001 in Darwin at which Mr Anderson was to give evidence, vacated. The following extracts from the letter are relevant:
“I confirm Mr Sosso’s view that Mr Anderson’s credit is in issue, and that the appropriate way to resolve that issue is to hear Mr Anderson’s evidence directly.
I wish to advise that on our present advice, Mr Anderson’s credit is not in issue. The material provided on 29 October 2001 addresses the matter that Mr Sosso has raised as putting Mr Anderson’s credit in issue, namely the statements that certain people had died, when Mr Teelow asserted that they had not died. That material explains the context in which Mr Anderson’s statements were made, and provides meaning for statements that might otherwise appear to be in direct conflict with the material supplied by Mr Teelow.
Further information and evidence in support of this contention can be provided if the member deems its necessary.
If Mr Anderson’s credit is not in issue, there is no need for Mr Sosso to hear his evidence directly. Accordingly, the native title party seeks a variation of the directions of Mr Sosso vacating the proposed hearing in Darwin on 16 November.
In any event the period of time between 5 November and 16 November is too short to prepare for such a hearing, particularly given the two hearings on country involving the representatives of the native title party that are to take place on 13 & 15 November.”
[23] This letter illustrates a misconception about the way the Tribunal is required by the Act to conduct inquiries. Section 151(1) provides that the Tribunal may, for the purposes of an inquiry, hold hearings. Subsection (2) then goes on to provide that the Tribunal may make a determination “on the papers”. Nevertheless this subsection contains the following caveat: “However, the Tribunal must 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 other words, only if the Tribunal is of the view that documents and other material lodged by the parties sufficiently address the matters in contention, is it permissible for an inquiry to be conducted on the papers. The wording of section 151(2) is mandatory. If there is any doubt in the mind of a Member conducting an inquiry about the adequacy of material before the Tribunal, and assuming that this inadequacy could be cured by the giving of oral testimony, then there is a statutory obligation placed on that Member to convene a hearing.
[24] There is another issue, which likewise needs to be appreciated by parties participating in an expedited procedure objection inquiry. The term “expedited procedure” is self-explanatory. While the time limits in sections 35 and 36 are not applicable to expedited procedure inquiries, it could be contended that as they are in turn benchmarks for the expanded right to negotiate procedure, an expedited procedure inquiry should be conducted in a much more expeditious fashion. Otherwise the clear intention of Parliament to provide a short, informal and just mechanism to determine if alleged low impact future acts can proceed, would be thwarted. In the recent case of Little v Western Australia [2001] FCA 1706, R D Nicholson J considered an appeal from an expedited procedure determination by Deputy President Franklyn. The grantee party’s submissions, inter alia, were summarised by His Honour as follows (at [84]): “Furthermore, it is submitted that the Tribunal has an obligation to act promptly (see s109 of the Act) which is emphasised by the presence of s 151(2) allowing the Tribunal to make a determination on the papers. This in turn is supported by the naming of the procedure by Parliament as the ‘expedited procedure’”. His Honour, while rejecting any reliance by the Tribunal on section 36(1) and (3) in the context of an expedited procedure objection inquiry, nevertheless said (at [85]): “expedition was appropriate in the circumstances for the reasons submitted on behalf of the Grantee including particularly the provisions in s109 of the Act.”
[25] The Tribunal wished to convene a hearing in Darwin on 16 November, for the very reason that all parties could be in Darwin on that day. The Tribunal was informed that Mr Anderson lived at Werebun, which is near Katherine. On 15 November the Tribunal conducted an on country hearing at Pine Creek to the north of Katherine. I queried at the Listings Hearing of 5 November whether it would be possible for transport to be organised by the Northern Land Council in these circumstances to allow Mr Anderson to come to Darwin. In other words, although the notice was relatively short, it was going to be the only time that the Tribunal could, in the short term, organise a hearing in the Northern Territory and in a way which would minimise public outlays and inconvenience to all of the parties.
[26] Also, although I appreciate that the number of expedited procedure objection inquiries being conducted in the Northern Territory at the moment is extensive, and the resources of the Northern Territory Government and the Northern Land Council would be under quite a degree of pressure, the matters that would have been in issue with Mr Anderson would not have been of great compass. If the Northern Land Council had obtained the Affidavit in question taking into account the degree of care required when presenting the Tribunal with material justifying a formal inquiry process, I find it difficult to conceive that it would not have been in a position to deal with a short hearing involving only one witness (unless the native title party on its own volition determined to call more) and with an examination and (possible) cross-examination that would have been focused on the relatively limited range of material set out in Mr Anderson’s short Affidavit.
[27] Finally, it is not open to a party before an inquiry to unilaterally determine that the credit of a person whose evidence they have adduced, is not in question. In this case, leaving aside what the view of the Tribunal was, it was clear that both the government and grantee parties believed that the weight that should be given to Mr Anderson’s evidence was a real issue. The Tribunal having considered the evidence and the submissions of the party, was likewise of the view that the credibility of Mr Anderson’s Affidavit was a real and serious issue that required resolution.
[28] Following receipt of this letter, a further Listing Hearing was convened on 9 November 2001. All parties participated. Mr Frith indicated that following the previous Listings Hearing he had changed his mind about whether Mr Anderson’s credit was in issue and that, therefore, it was not necessary for him to give direct evidence. Mr Lavery said that in the opinion of the government party there was a conflict of fact, which would cause the Tribunal to have grave doubts about certain issues of credit. The most logical means of resolving the matter was to have a hearing. The grantee party likewise strongly supported having a hearing so that the issue of credit could be resolved.
[29] Having heard the parties, I indicated that the Tribunal had four options (at least) potentially available to it:
(a)accept the submission of the native title party that there be no hearing on 16 November involving Mr Anderson and determine the inquiry “on the papers”. However, the Tribunal was of the view that the credit of Mr Anderson was in issue, and if this course of action was adopted his evidence would be accorded little or no weight;
(b)the hearing proceed on 16 November 2001 in Darwin, limited to the evidence of Mr Anderson (unless parties sought leave to call extra oral evidence);
(c)issue a subpoena compelling Mr Anderson to attend and give evidence on 16 November 2001; or
(d)determine, pursuant to section 151(2) that the issues for determination cannot be determined “on the papers”, and a full hearing would be held at a date to be confirmed.
[30] I indicated to Mr Frith that I would adjourn the Listings Hearing to allow him the opportunity to obtain further instructions. Mr Frith indicated that he would obtain same later that day.
[31] Later that day the Northern Land Council wrote to the Tribunal. After outlining the above options, the following information was provided:
“The writer on behalf of the Native Title Party seeks that no hearing be conducted on Friday 16 November 2001 and that the matter proceed to a determination in the normal course on the papers, in accordance with Option 1. The Native Title Party does not however concede that the credit of the deponent is at issue in relation to this matter.
We respectfully repeat the submission of Mr Frith made today that the NNTT provide reasons for any concluded view that the credit of the deponent is at issue in the matter.”
[32] I gave careful consideration to the proper approach that should be taken. While the Tribunal does have the power pursuant to section 156(2) to summon a person to appear before it and to give evidence and produce such documents as are referred to in the summons, it is a power that should be used sparingly. In this regard the following observations of Member Williamson in Northern Territory/Risk (Larrakia)/ Philllips Oil Company Australia DF97/1, 9 February 1998 (at p.15) guided the Tribunal in its deliberations:
“The power in s 156(2) to summon a person to appear and give evidence and to produce such documents (if any) as are referred to in the summons should be used sparingly. It is not a power, such as may be found in the courts, to issue a subpoena requiring documents to be produced for inspection prior to the hearing of a proceeding. It is a power to require a person to attend the hearing to give evidence, and to produce documents. The Tribunal is an administrative body exercising an administrative function. It should be wary about using the summons power as a springboard for a wide-ranging inquiry: cf Re D.J.Moran Managements Pty. Ltd and Minister for Community Services (1986) 11 ALN N181 (Administrative Appeals Tribunal, per Davies J, President).”
[33] While the evidence required of Mr Anderson would have been of relatively narrow focus, and no documents would have been demanded by the Tribunal, nevertheless I was not satisfied that the power to issue a summons should be activated. Unless the Tribunal determines, pursuant to section 151(2), that there is not sufficient material to enable the inquiry to be dealt with “on the papers”, there are very few circumstances in an expedited procedure objection inquiry where it would be sensible to issue a summons to appear. Nevertheless it is a power that should be exercised if fairness or justice requires it – see Risk v Williamson (1998) 87 FCR 202 at 227. If, as in this matter, a party deliberately chooses not to call a witness, it entails the risk that the Tribunal will make its determination on the evidence before it, and draw inferences from the failure to give the evidence the summons would have been directed towards – see also Deputy President Sumner in Victoria/Yallourn Energy Pty Ltd/Bull & Ors VF99/1, 2 September 1999, Northern Territory/Risk (Larrakia)/Phillips Oil Company Australia at p.74 and Re AK and Commissioner for Superannuation (1986) 11 ALN N106.
[34] In addition, while there were difficulties with the Affidavit of Mr Anderson, the Tribunal still had before it the Affidavits of Bessie Coleman and Lazarus Ford. In these circumstances I was satisfied that issues for determination could be adequately dealt with “on the papers”. A further (though not decisive) factor was the cost, delay and inconvenience that the calling of a full hearing would have entailed for each of the parties, particularly in the context of both the government party and the Northern Land Council being involved in numerous expedited procedure objection inquiries at the moment.
[35] In the circumstances I determined to adopt the first of the options outlined above, and the one the Northern Land Council submitted should be followed. The native title party requested that if I gave little or no weight to the Affidavit of Mr Anderson that I give reasons for doing so. While the above outline of the matter goes quite some way of explaining this, I will also briefly set out the legal considerations that I had regard to.
Legal Principles
[36] The following principle is set out in the fourth edition of Wigmore on Evidence (Volume 2 at p.192: Chadbourn rev.1979):
“The failure to bring before the tribunal some circumstance, document or witness, when either party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot be fairly made except on certain conditions, and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference is in general not doubted.”
[37] In Australia the evidentiary rule underpinning the failure to give evidence emanates from the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298. So far as civil trials are concerned (as distinct from criminal proceedings), this rule was summed up by Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v R (2000) 199 CLR 620 (at 632) as follows:
“[26] In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case and that:
where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference’”
[38] It is, of course, important to bear in mind that that “while Jones v Dunkel reasoning is a product of the adversarial mode of common law trials, tribunal review is essentially inquisitorial” Re Bessey and Australian Postal Corporation (2000) 60 ALD 529 at 537. Nonetheless the Adminsitrative Appeals Tribunal has determined that this rule is applicable in proceedings before it: Re Perring and Australian Postal Corporation (1993) 31 ALD 693. Likewise I am of the view that this rule can be applied, in appropriate circumstances, in expedited procedure objection inquiries.
[39] The are numerous exceptions to this rule, and one important caveat is the fact that it should rarely, if ever, be applied in Tribunal proceedings when a party is unrepresented – see Re Rodgers and Secretary, Department of Social Security (1991) 24 ALD 720. Here, of course, the native title party is legally represented. Likewise, before such an inference is drawn the Tribunal is obliged to consider whether the person should be summonsed. On the balance, as previously indicated, I determined against that course of action.
[40] In this inquiry the Tribunal is confronted with conflicting primary evidence from the grantee party and a member of the native title party. The conflict itself goes not to a core issue, but raises serious questions about the accuracy of the evidence before the Tribunal adduced by the native title party. The explanation proffered by the native title party failed to satisfy either the grantee or government parties. The native title party has directly refused to have a hearing where Mr Anderson could give oral testimony. Both the government and grantee parties say that Mr Anderson’s credit is in issue.
[41] Here the native title party’s rationale or explanation for failing to call Mr Anderson to give evidence – that his credit is not at issue – was plainly wrong. His credit was at issue, and this was made clear at the various Listings Hearings. It was not the Tribunal who reached that conclusion, but the other parties who put this state of facts to the native title party and the Tribunal. Before an adverse inference can be drawn, the failure of a party to call evidence must either be unexplained or the explanation is not legitimate. Here, the Tribunal has been presented with no satisfactory reason why Mr Anderson could not be called. It has to be borne in mind that the Tribunal would have been prepared to convene a full hearing at a date after 16 November 2001 if the native title party had requested this course of action. Instead the native title party rejected not only the 16 November hearing, but also any hearing at any later time.
[42] Further, Mr Anderson did have something to explain. He had to explain why he deposed that people were dead who the grantee party claimed were alive. It also has to be appreciated that the grantee party later produced evidence that the persons whom he claimed were alive, were in fact alive. At no time has the native title party suggested that the grantee party’s contentions in this regard are wrong. All that the Tribunal was presented with by the native title party, was an ex post facto rationalisation of Mr Anderson’s evidence, which failed to satisfy either the government or grantee parties.
[43] In contradistinction, the grantee party, Mr Teelow, appeared in person before the Tribunal on 16 November 2001 and gave evidence under oath. He was not legally represented. Moreover he submitted himself to cross-examination; albeit, as it turned out, it was only very short and only by the native title party.
[44] Mr Teelow is a forthright person who expounds his opinions in a robust manner. However, I did not find him to be evasive in any manner, nor did I form the view that the he was an unreliable witness. In fact I found him a witness of credit.
[45] Consequently the Tribunal has the direct evidence of the grantee party given under oath and the contested evidence of Mr Anderson. I have therefore drawn the inference that the failure to call Mr Anderson was due to the fact that his evidence would not have assisted the native title party. Further, I have given little weight to the Affidavit of Mr Anderson in assessing the likelihood of interference or disturbance under section 237 of the Act.
Land Claim Report
[46] The native title party also relied on certain findings by Mr Justice Kearney in his capacity as Aboriginal Land Rights Commissioner in the Jawoyn (Katherine area) Land Claim Report No 27 (referred to hereafter as “the Land Claim Report”). The native title party submitted to the Tribunal very short extracts from that Report (pp 8, 20 and 36) and contended that the Tribunal should adopt the findings of the Commissioner, relying on section 146(b) of the Act (OSC at para 31). The government party’s response was that the correlation between the traditional owners as identified in the Report and the native title claim group was unknown, and even if there were a correlation, the extracts were of little, if any, relevance to the inquiry (GPCR at para 7(a)).
[47] The Tribunal has expressed its concern in other inquiries at the approach of the native title party submitting only short extracts of much longer Land Claim Reports, and then seeking that the Tribunal accept the relevance of the extracts without knowing the context in which the material submitted was prepared. Certainly the contention of the government party has merit. As it is, the Tribunal has perused the whole Land Claim Report, and only on that basis will accept into evidence the short extracts referred. The evidentiary worth of the extracts in this particular inquiry, however, is not great.
Aboriginal Communities
[48] The evidence before the Tribunal discloses that there are no Aboriginal communities situated on the proposed tenement. The native title party refers (OSC at para 40) to Aboriginal communities at Pine Creek Town Camp and Werebun Community. Neither of these communities is in the immediate vicinity of the proposed tenement, with the Werebun Community being located approximately 50 km south of the proposed tenement (ORTM at para 8).
Sacred Sites
[49] There are no sites registered or recorded by the Aboriginal Areas Protection Authority on the proposed tenement. It would appear that there is only one recorded site in the vicinity of the proposed tenement, being located about one kilometre from the south eastern boundary.
Previous and Current Exploration and Mining Activity
[50] The government party has provided the Tribunal with extensive information about previous and current exploration and mining activity on the area of the proposed tenement. This information discloses that the proposed tenement has been the subject of very intensive mining activity for some time.
[51] Currently the following mining tenements cover some portions of the land within the outer boundaries of the proposed tenement:
Mineral Claim Northern (MCN): 1059, 4909, 4911, 4913, 4915, 4917, 4918, 4919, 4920, 2921, 4922, 1927, 2953, 2948, 2399, 2400, 2401, 2402, 2953, 2948, 3062, 3063.
Mineral Lease Northern (MLN): 1059.
Mapping provided by the government party indicates that currently there is a continuous band of mining tenements located along most of the western boundary of the proposed tenement. These tenements are all relatively small in area. However, due east of these tenements and taking up a sizeable area of the proposed tenement is MLN 1059 which is centred on the Moline Dam. This tenement was granted in 1990 and is not due to expire until 2015. In addition there are a number of MCN’s located in and around the south eastern portion of the proposed tenement.
[52] In addition, previously numerous mining tenements have been granted over the area of the proposed tenement:
MCN: 1908, 1909, 1910, 1911, 1912, 1913, 1927, 1928, 1929, 1930, 2435, 2436, 2437, 2442, 2443, 2449, 2450, 2455, 2456, 2944, 2945, 2946, 2947, 2948, 2949, 2950, 2951, 2952, 2953, 2954, 2955, 2956, 2957, 2958, 2959, 2960, 2961, 2962, 2963, 2964, 2965, 2966, 2967, 2968, 2969, 2970, 2971, 2972, 2973, 2974, 2975, 2978, 2979, 2980, 2981, 2982, 2983, 3065, 3066, 3067, 3068, 3069, 3070, 3071, 3072, 3073, 3074, 3075, 3076, 3872, 3973, 3874, 3875, 3876, 387, 3980, 3981, 3982, 3983, 3984, 3985.
Exploration Licence (EL): 44, 1091, 2029, 3008, 4492, 4894, 8555.
Exploration Retention Licence (ERL): 76.
[53] Maps produced by the government party disclose that there is almost no major portion of the proposed tenement that has not, at one time or another, been subject to mining or exploration activities.
[54] The nature of mining/exploration activity that has taken place in this area (as disclosed in Company Reports) include: soil sampling, rock chip sampling, costean/channel sampling, reverse circulation (RC) drilling, airtrac drilling, ground magnetic survey, ground induced polarization survey (IP) and stream sediment sampling.
[55] Finally, the information adduced by the government party also indicates that Mr Teelow has been granted numerous MCN’s by the government party, and that he is currently the grantee of MLN 1059.
Nature of Proposed Exploration Activity
[56] The government party lodged with the Tribunal a copy of the grantee party’s Application for Grant of an Exploration Licence. In that document the grantee party indicated that his proposed work program for the first year would entail: “A thorough compilation and review of all mineral exploration activity completed to date.” The stated work program for subsequent years was: “Previous work will allow drill targets to be located: RAB and RC drilling. Diamond Drilling. Metallurgical testing.”
[57] The grantee party has not enlightened the Tribunal on what his intentions are with respect to exploration activity, and, as such, the only material on his proposed exploration activity is outlined in [56].
[58] The native title party submitted (OSC at para 16): “There is a real or not remote chance or possibility that it will exercise all the rights conferred under the exploration licence to the fullest extent. The NNTT should decide the objection on the basis that the Grantee Party will exercise all the rights available to it.” In the absence of any explanation from the grantee party, the Tribunal will assume that the legal rights created by the grant of the proposed tenement will be exercised to the fullest extent legally available by the grantee party.
Legal Principles
[59] I adopt, for the purposes of this inquiry, the legal principles set out in me in paragraphs 20 – 47, 49 –62, 86 – 107 and 135 – 140 in Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13, 1 February 2002.
[60] 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
[61] Initially the native title party submitted (OSC at para 43) that the community or social activities of the native title claim group included:
(a)foraging, with reliance placed on findings in the Land Claim Report;
(b)hunting, fishing and gathering of bush tucker – Affidavit of Bessie Coleman at paras 3-4 and Affidavit of Roy Anderson at paras 4-5.
[62] Subsequently the native title party lodged the Affidavit of Lazarus Ford. In his Affidavit he deposed that he uses a track through the proposed tenement to travel to Werebun. Mr Ford says (para 3): “We go out there shooting pigs and turkey”. Concern was expressed (at paras 4 and 5) that drilling would scare away the animals and ruin his hunting. Moreover, if explorers were on site, and shooting occurred, he was concerned that a person could be accidentally shot.
[63] Bessie Coleman deposed that she grew up on the Mary River Station until her teenage years and taken around by her mother and uncle digging yam and looking for porcupine. In addition, she claims to go fishing along Evelyn Creek and a place called Blue Hole on the Mary River. She expressed concern about exploration activity polluting the watercourses and land (rubbish, flagging and tape being left on site).
[64] The government party contended (GPCR at para 15): “As to frequency of hunting, fishing and foraging, Mr Ford and Mrs Coleman does not state the frequency of excursions, rather the latter says “[w]e go any time we want (to Blue Hole fishing) (at paragraph 4).” It was also contended that it was not known how many of the places mentioned by Bessie Coleman were within the area of the proposed tenement (GPCR at para 38) and while conceding that some members of the native title claim group might engage in hunting, fishing etc, more particularity was required as to whether these activities occurred on the proposed tenement and also that exploration activities would be a proximate cause of substantial impact on these activities.
[65] Following a hearing in Darwin on 16 November 2001 I issued Directions aimed at clarifying some of these matters. The native title party subsequently informed the Tribunal that (ORTM at para 6):
(a)Evelyn Creek flows outside of the north west boundary of the proposed tenement;
(b)Blue Hole is a water hole in the Mary River located outside of the proposed tenement.
The Tribunal sought information as to how often and with whom Mr Ford goes shooting, and whether this occurred on the proposed tenement or surrounding areas. The only response the Tribunal received was in the following terms (ORTM at para 10):
“The shooting is done as Mr Ford passes along the track. Presumably, it occurs as the track passes through the ELA area, and as it traverses areas outside the ELA area.”
Unfortunately no information was provided as to the frequency of this activity or the persons participating.
[66] The grantee party both in written material submitted to the Tribunal and in oral testimony in Darwin on 16 November 2001 informed the Tribunal that he lives on the proposed tenement and that the track to Werebun passes by his house and is locked, so that if it was being used it would be heard and investigated. He repeated that the other track was blocked off and had not been used for years. Moreover he had not seen any tyre tracks or other signs that vehicles had used either track nor had he heard any guns being discharged. Under cross-examination from Mr Frith, Mr Teelow informed the Tribunal that over the last twelve months or so, due to medical problems, he spent 80% of his time in Darwin. However, prior to that, and from 1986 he permanently resided on the area of the proposed tenement.
In his Affidavit of 27 November 2001 the grantee party provided this additional information to the Tribunal:
“6. Werenbun Mob have NEVER, I repeat NEVER used the road to Wandi and Werebun through Moline. The reason being (A) All the evidence given under oath by myself at the last NNTT hearing on Friday the 16/11/01 (B) the mine site at Wandi Creek was blocked off by myself in 1994 using a bulldozer to cut a trench through a dam wall which is the only rod through the Wandi Creek and the dam crossing. This trench was about 4 mtrs deep with vertical sides and had water in it most of the time…
8. I made access through the trench at Wandi in November 2000 with an end loader for Telstra to work on the satellite weather station at Wandi.
12. I have never witnessed any aboriginals hunting on or south of ELA 22600 nor has John Hoggard. He has lived permanently at Moline since June 1999 and has the key to the gates.
13. I lived full time at Moline up untill (sic) October 2000, and only part time since then.”
[67] The evidence discloses no Aboriginal communities on or near the proposed tenement. In addition there is little evidence that members of the native title claim group make any sort of use of the land or waters of the proposed tenement.
[68] Bessie Coleman’s Affidavit is limited to activities that occur outside of the proposed tenement, and the native title party has not clarified how often, where or with whom Mr Ford hunts on the proposed tenement. In contradistinction, Mr Teelow, under oath, testified that he had seen no evidence of the type of community or social activities on the proposed tenement contended by the native title party.
[69] Reliance by the native title party on the Land Claim Report so far as foraging on the proposed tenement is concerned is less than satisfactory. A reading of that Report indicates that while Mr Justice Kearney did find that the Jawoyn People had a traditional right to forage over traditional country, he said that the evidence he received “related largely to the southern part of the claim area” (p.36). The southern part of the claim area related to land and waters to the east and south east of Katherine, which is a significant distance from the proposed tenement.
[70] Even if Mr Anderson’s Affidavit had been admitted into evidence and given the weight it normally would have, it still does not alter the situation. He deposes that he uses the Moline track twice a year to go hunting kangaroo, goanna, turkey, snake, pig and porcupine. The last time he used the track was the previous year (2000).
[71] Mr Anderson’s Affidavit would not have bolstered the native title party’s case because, as French J pointed out in Smith v Western Australia (2001) 108 FCR 442 (at 451), the direct interference referred to in section 237(a) “must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts that are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section.”
His Honour went on to point out that evaluating whether a direct impact was substantial was contextual (at 451):
“The extent of the interference and the proximity of tis causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that he impact of the proposed future act is insubstantial.”
[72] In this matter the proposed tenement is wholly contained within a pastoral lease, and the lessee of the property is entitled to carry on pastoral activities to the extent permitted by the relevant laws of the Northern Territory. Moreover, the proposed tenement has bordering it in the north west and in various other parts therein, current mining tenements. Once again, any community or social activities of the native title claim group would be affected by any activities carried on by the grantees of such tenements.
[73] The evidence before the Tribunal establishes that this area has been subject to significant exploration and mining activity over many years. If one accepts that Mr Anderson goes hunting on the proposed tenement and that Mr Ford likewise travels through it for the same purpose, then it is difficult to conceive how the grant of this proposed tenement would have any significant direct impact on these activities, if the cumulative impact of all of the previous mining activities over many years has not.
[74] While the native title party put forward many interesting contentions on section 237(a), and the abovementioned deponents raised a number of concerns about what impact the grant of the tenement would possibly pose to community or social activities, the evidence before the Tribunal discloses:
(a)very minimal use of the land or waters of the proposed tenement for community or social activities;
(b)such activities are limited in time, location and the persons engaging in them;
(c)the evidence of Bessie Coleman appears to be limited to activities outside of the proposed tenement;
(d)the evidence of Lazarus Ford is unclear as to the location of the hunting. He says he goes “out there” hunting, but fails to clarify if this is on the tenement, and, if it is, where this occurs;
(e)Roy Anderson uses the plural “we” in relation to hunting activities, but never specifies who the “we” are. It is unclear who goes hunting with him and on what basis;
(f)no demonstrated deleterious impact on such activities in the immediate past by the grant of exploration or mining tenements;
(g)the proposed tenement area is subject to pastoral activities and other mining and exploration activities; and
(h)direct contradictory evidence by Mr Teelow about the extent to which the deponents use the proposed tenement for community or social activities.
[75] Overall there is insufficient evidence for the Tribunal to find that there is a real chance or likelihood that the act will directly interfere with the carrying on of the community or social activities of the native title holders. I am prepared, despite the evidence under oath from Mr Teelow, to give a beneficial interpretation of the evidence before me, and accept that there are some community or social activities that potentially could be impacted on by the grant of the proposed tenement. However, the evidence discloses that these activities either take place outside the tenement, or are so intermittent, irregular and localised that any impact on them would be insignificant and of very short duration.
[76] The evidence discloses that any likely direct impact would be trivial and not of a type as to activate section 237(a).
Section 237(b) – Areas or sites of particular significance
[77] The native title party has adduced no evidence that there are any areas or sites of particular significance on the proposed tenement. Moreover the AAPA has provided information that there are no registered or recorded sites located on the proposed tenement, with only one recorded site located nearby.
[78] Bessie Coleman deposed (at para 2) that “there are a lot of sites on the map from the men’s side, so I can’t know them. But them fellas ought to know and the young ones need to be taught. My uncles probably put those sites on that map when they were still alive.” However, as mentioned, the Tribunal was presented with no evidence from either Mr Ford or Mr Anderson about any such sites of significance.
[79] In its Statement of Contentions (at paras 50-53), the native title party referred to the belief of the native title claim group that the country, and significant areas within it are alive, and that the future act would be likely to interfere with areas or sites of particular significance. It went on to contend that all areas and sites have particular significance.
[80] These sorts of contentions in the abstract do not assist the Tribunal. It is a condition precedent for the Tribunal making an inquiry pursuant to section 237(b) that there is an identified area or site of particular significance to members of the native title claim group located on or in relatively close proximity to the proposed tenement. This issue was dealt with by Deputy President Franklyn in Hicks/Western Australia/Legend Mining NL WO99/7, 25 September 2000 where he said (at 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 s 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 the something exists and therefore is capable of being interfered with by the proposed act.”
[81] The native title party adduced material (Affidavit of Jeffrey John Wilson Stead) that contends in the abstract that the AAPA records may be deficient, but has not produced any evidence of how the alleged deficiency has manifested itself with respect to areas or sites in the area of the proposed tenement.
[82] Consequently there is no material before the Tribunal that requires it to engage in an inquiry pursuant to section 237(b) as the native title party has not disclosed any area or site which is of particular importance to native title holders in accordance with their traditions.
Section 237(c) – Major disturbance to land or waters
[83] The native title party initially (OSC at para 70) made the following submissions concerning section 237(c):
“The Objector is concerned about major disturbance to land or waters within or in the vicinity of the licence area:
a. Bessie Coleman is concerned about miners leaving their rubbish everywhere, and about poison, cyanide or dirty water getting into the rivers and affecting their fishing and swimming places [5]. She doesn’t like seeing flagging and tape everywhere. She worries about chemicals affecting her kids and the food they eat [6]. She says that drilling disturbs the hunting areas and changes the country. It will change the way they hunt on country [7].
b. Roy Anderson is worried about exploration disturbing hunting grounds [5]. He is also concerned about the survival of Gouldian Finches, kingfishers and wrens [8]-[9].”
[84] Subsequently the native title party lodged the Affidavit of Lazarus Ford in which he expressed concern that drilling would scare away the animals and ruin hunting activities.
[85] The government party’s response was as follows (GPCR at para 32):
“The evidence simply does not establish how, where and why the major disturbance speculated upon by the deponents is likely to occur. The concern stated in the affidavit of Mrs Coleman relate to the scenarios of ‘pollution and cyanide or any dirty water getting into our rivers and dirt being put in the creeks’ or Mr Ford who deposes (in paragraph 5 of affidavit of 9 October 2001):
‘We’d be worried to keep going out shooting if the mining company mob is around. We might have an accident and shoot one of them. They might get mad with us and tell us to stay out of their way and get off the track. They’ll complain if we are there, or if we are firing shots. If the mining company is there, we don’t go.”
This is not to be regarded as credible evidence. It might accurately reflect the worries of Mr Ford but his statements cannot be regarded as likely if both parties act lawfully. Please refer to relevant Second Schedule Conditions.”
[86] The grantee party provided (Gr3 at paras 2-4) this tenement background to the area in question:
“2. ELA22600 was previously EL8555 from 1993 to 2000 owned by myself.
3. In 1993 I purchased MLN 1059, numerous mineral claims and several exploration licences from Sons of Gwalia and Arimco mining companies and converted a large area of MLN1059 and most of the mineral claims to EL8555.
4. Prior to 1993 the area of ELA22600 formed part of MLN1059 and many mineral claims.”
[87] While the grantee gave the Tribunal no information as to his intentions, nevertheless he did provide this information (Gr3) about his view of the prospective mineral worth of the proposed tenement:
“14. All known ore reserves are on the existing mining lease and the mineral claims. There is potential for some small ore reserves on the ELA. The chance for a large ore body is very low on the ELA as every strike site and anomaly has been sampled and drilled extensively. The ELA gives access to mineral claims and the chance of small ore bodies being found to compliment the main ore bodies on mining lease 1059.”
[88] The Tribunal has been presented with extensive evidence from the government party, which demonstrates that the area of the proposed tenement has been the subject of significant exploration and mining activity over a number of years. It would also appear that this activity has not been restricted to a particular geographical segment of the tenement area, but has been widespread.
[89] While, in the absence of evidence of the grantee’s intentions, the Tribunal will conduct this inquiry on the basis that he will exercise his legal rights to the maximum legally permitted, nonetheless I have also been presented with detailed evidence from the government party on the regulatory regime in force in the Northern Territory which governs the exercise of rights under an exploration licence and for the rehabilitation of sites.
In particular the government party has highlighted the many conditions which exploration licences are subject to under various sections in the Mining Act. Reference was made by the government party to the Second Schedule Conditions. These are conditions imposed on exploration licences by the Minister pursuant to section 24A. The standard form of those conditions has been received into evidence. Some relevant conditions include requirements that the explorer:
(a)carry out activities so as to minimise any impact to any extant native title rights and interests in the licence area (condition 1);
(b)carry out activities in such a way as to minimise disturbance to the environment of the licence area (condition 2);
(c)does not bring firearms or traps onto the licence area and not take or kill any wildlife (condition 3);
(d)ensure that all structures, facilities, survey markings or other related infrastructure to be of a temporary nature and removed at the completion of exploration unless otherwise approved (condition 4);
(e)does not construct new vehicle tracks unless unavoidable (condition 5)
(f)keep clearing and/or disturbance to vegetation of a minimum (condition 6)
(g)remove all rubbish and waste from the licence area (condition 14);
(h)take all precautions to prevent contamination of underground and surface waters in the licence area (condition 15);
choose drillhole and excavation sites to minimise environmental impact and after completion of drill holes, the collar to be sealed off and casing plugged or capped (condition 17);
(j)shall prior to commencing exploration activities convene a meeting on the licence area (or nearest convenient locality) with registered native title claimants to explain the exploration activities and have regard to representations made at that meeting (condition 18).
[90] Despite the number of mining and exploration tenements granted over this area the native title party produced no specific evidence on how mining or exploration activities have resulted in major disturbance to the relevant land or waters.
[91] Bessie Coleman did depose to her experiences in the 1950s and 1960s when she worked at the Mary River Mine. She drew the Tribunal’s attention to the leaving of rubbish and to the pollution of watercourses. Unfortunately the location of the Mary River Mine is not clarified. The grantee party deposed that the only Mary River Mines he was aware of were either 60 km from the proposed tenement or old tin mines 5 km south of the proposed tenement that had not been worked for more than 100 years.
[92] In any event, whatever may have been the situation with respect to the conduct of mining operations a number of decades ago in the Northern Territory, the information before the Tribunal would indicate that there is now a much stricter regime in place to ensure that environmental and cultural impacts of mining activity are kept to a minimum.
[93] Of more importance for this inquiry, is that in assessing the likelihood of major disturbance, the future act relates to an exploration licence and not a mining tenement. Mining operations are totally distinct, and prior to mining activity proper taking place a separate future act process is required. A right to explore does not inexorably lead to a right to mine.
[94] If one accepts that hunting and other traditional activities occur on the area of the proposed tenement as Mr Ford (and Mr Anderson) depose, then it could be said that the previous mining and exploration activity has not had a particularly deleterious impact on the flora and fauna of this area. Moreover there is no evidence of watercourses being polluted or environmental damage being caused. If there were any such problems on the proposed tenement area, then one would assume that Mrs Coleman or Mr Ford would bring them to the attention of the Tribunal. If Mr Ford travels through this area as he has deposed, it would be logical to assume that he would notice damage being caused to land or waters or a reduction in the number and type of wildlife. As it is, no such evidence was adduced.
[95] Indeed, on the contrary, there is the evidence of Mr Teelow (Gr2 at p.2) that since he took over the pastoral lease he has put in place a policy of restricting shooting, and there has been an increase in bird life, particularly bustards. Moreover he informed the Tribunal that during the exploration stage no chemicals are used (Gr2 at p.3).
[96] While it is appropriate that the native title party highlights the concerns of members of the native title claim group, nevertheless, having regard to the extensive regime in force in the Northern Territory to prevent the very type of environmental damage and other impacts raised, applying the presumption of regularity, and considering the absence of any evidence of disturbance by previous exploration or mining activity on the proposed tenement, the Tribunal has little material before it of relevance to a section 237(c) inquiry.
[97] The evidence before the inquiry indicates that:
(a)hunting and gathering activities are not extensive in either duration or area, and it is unclear how many persons participate or their identity;
(b)the area of the proposed tenement has been subject to extensive mining and exploration activity;
(c)the area in the vicinity of the proposed tenement has also been subject to mining and exploration activity;
(d)no evidence has been adduced that any of this activity has previously impacted on the activities of the native title claim group;
(e)there is no evidence that any of this activity has resulted in the pollution of nearby watercourses;
(f)there is no evidence that the geological make up of the tenement area is fragile or that there are special circumstances pertaining such that exploration activities of the type identified would be likely to result in major disturbance to land or waters;
(g)the proposed tenement is wholly contained within a pastoral property, with ongoing pastoral activity impacting on the land and waters concerned;
(h)the proposed tenement has a number of mining tenements within its boundaries; and
there is an extensive regulatory regime in force aimed at strictly controlling the exercise of rights under an exploration licence and preventing environmental damage to land and waters.
[98] In these circumstances I am unable to find that the grant of the proposed tenement is likely to involve major disturbance to any land or waters concerned, or create rights, the exercise of which is likely to involve major disturbance to any land or waters concerned.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22600 to Michael Daniel Teelow is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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