William Risk and Kathleen Mary Mills/McGinnis/Corporate Developments Pty Ltd/Northern Territory of Australia

[2002] NNTTA 46

NATIONAL NATIVE TITLE TRIBUNAL

William Risk and Kathleen Mary Mills/McGinnis/Corporate Developments Pty Ltd/Northern Territory of Australia, [2002] NNTTA 46 (15 April 2002) 

APPLICATION NO:  DO01/77

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

-     and  -

IN THE MATTER of a Future Act Determination Application

William Risk and Kathleen Mary Mills/McGinnis (Native Title Party)

-     and  -

Corporate Developments Pty Ltd         (Grantee Party)

-     and  -

Northern Territory of Australia (Government Party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:   John Sosso
Place:        Brisbane
Date:         15 April 2002

Hearing dates:            12 February 2002, 4 March 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

Grantee Party:           Mr Graham Chrisp

Catchwords:               Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles - whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – grantee party’s intentions – presumption of regularity – likelihood of major disturbance to land or waters – protection under existing legislation – an act which attracts the expedited procedure.

Legislation:                 

Acts Interpretation Act 1901 (Cth) s 36
         Native Title Act 1993 (Cth) ss 29, 32, 109, 146, 151, 237

Cases:

Evelyn Gilla/Western Australia/Wayne Allie WO00/436, Member Stuckey-Clarke 19 December 2001

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

Kevin Peter Walley/Western Australia/Allan Neville Brosnan WO00/427, Member Sosso 17 August 2001

Little v Western Australia [2001] FCA 1706

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

Mt Gibson Manager Pty Ltd v Deputy Commissioner for Taxation (1997) 81 FCR 335
         R v Metropolitan Fair Rents Board; Ex parte Canestra [1961] VR 89

Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1

Smith v Western Australia (2001) 108 FCR 442

Violet Drury/Western Australia/Giralia Resources NL, WO00/93, Deputy President Franklyn 18 May 2001

Wall v Windridge [1999] 1 Qd R 329

REASONS FOR DETERMINATION

Background

[1] On 2 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 9905 (“the proposed tenement”) to Corporate Developments Pty 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 13 blocks (43.5 square kilometres) and is almost completely comprised of a Crown Lease in Perpetuity (CLP) 862, with very small sections of Freehold land (Lot 2735 Hundred of Hughes) and vacant Crown Land (Lot 2703 Hundred of Hughes).

[3] On 2 August 2001, a native title determination application was filed with the Federal Court (D6050/01) and was entered on the Register of Native Title Claims on 31 August 2001. The name given to this application is “Bynoe”, and the applicants are Mr William Risk and Ms Kathleen Mary Mills/McGinness. The Bynoe  application wholly covers the area of the proposed tenement. 

[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 3 September 2001. Technically this was more than four months after the section 29(4) notification day of 2 May 2001 (section 32(3)). However 2 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.”

The named Objectors, Mr William Risk and Ms Kathleen Mary Mills/McGinness, are also the applicants named above.

[5] On 7 September 2001 Deputy President Sumner issued Directions for the conduct of the Inquiry and granted amendments to those Directions on 5 November 2001.  The various contentions made by the parties have been pursuant to those Directions.  A preliminary conference of the parties was convened on 1 October 2001 and 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 listings hearings were convened on 12 February and 4 March 2002, and on these dates I made further Directions for the supply of material in this inquiry.

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

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

Government Party Contentions

Statement of Contentions of Government Party (“GPSC”) dated 12 December 2001

Contentions in Reply (“GPCR”) dated 27 February 2002

Native Title Party Contentions

Statement of Contentions of Objectors (“OSC”) dated 17 December 2001
Objectors’ Reply to Contentions of Government Party (“OCR”) 12 February 2002
Objectors’ Contentions regarding the Aboriginal Land Rights (Northern Territory) Act 1976 Land

Claim Report (“OCLCR) 4 March 2002

Grantee Party Contentions

Statement of Contentions of Grantee Party  (“Gr1”) dated 21 December 2001

Correspondence from Mr Graham Chrisp (“Gr2”) dated 12 February 2002

Evidence

Affidavit of Kathleen Mary Mills/McGinness

[8] The native title party submitted an Affidavit of Kathleen Mary Mills/McGinness which was affirmed before Ms Wendy Asche a Commissioner for Oaths. Ms Mills/McGinness identifies herself as a member of the native title claim group and is also an Objector. Her Affidavit is set out below:

“1. I am a member of the native title claim group in the Bynoe native title determination application (DC01/49).  I am Kungarakan.

2.   The area of the application includes the area of ELA 9905.  I have seen a map of the area of the ELA.  Now produced and shown to me marked “KMM 9905” is a map of the ELA and the surrounding area.

3.   The ELA covers the main McGinness family area; we are hoping to get this area for the McGinness family.  The old Maranda, Lucy and Maggie Mines are named after members of my family.

4.   The Lucy Mine is on this area and was worked by my family for tin.  It is near where Annie River meets Charlotte River on country.  The Lucy Mine is more or less our beginning, where our family came out from.  It’s part of Kungarakan country, but that is our family place.  Back in the old times we grew out there.

5.   My father’s father opened this mine; his wife was a Kungarakan woman.  He took out his three mining leases in the name of Aboriginal people.  This was a political statement on his part in support of Aboriginal people.  He used the European names of Lucy and Maggie, so the authorities did not know what he had done.  Lucy was my father’s mother’s European name.  Her Aboriginal name was Alngindabu.  Her brother was Maranda.  When my father’s father died, white men took my father’s mother away.  Aboriginal people could not own property then.

6.   There are two lagoons about 5 kilometres to the east of the Lucy Mine, Alngindabu, [AAPA Site 5072-53] and Karial (also called Queenoy Gardens), which is where they took food and water.

7.   We still visit the area of Lucy Mine and the lagoons.  It is where Uncle Joe and Aunt Maggie were born.  My Dad and Uncle Barney were not born there.  We try to get to the area at every opportunity, but none of us have any vehicles.  We are a huge family, and transporting people out is a major problem for us.  Whenever the members of the family can, we go out there, especially if we have visiting family members from elsewhere.

8.   This is a very important place for us.  We are not physically there, but mentally and psychologically we are there all the time.  But we can’t just please ourselves and go in there when we like, because we know there are other interests there.  It’s daunting, and we don’t want to break the law, but we want to see our country, and it is very difficult for us.

9.   I was last out there about 18 months ago, right out at Lucy Mine.  We go there and sit down and tell the children about the history of the area.  Our dream is to reconstruct a historical building there.  Looking at it, Aboriginal way, we are there all the time.  We are talking about the place.  We are telling our children about it.

10.    My cousin Ida Bishop grew up on this country.  She lives in Perth now.

11.    My son Robert, who is recording our language, needs to go out there and survey the area.  I am putting down songs for the area.  Robert has been taken out a couple of times by Ida and me and Uncle Joe, who is the last remaining McGinness born on that country.  We showed Robert where Aunt Maggie’s house was.  Last time we were there we could still see some of the house posts, though they are now mostly rotted away.  We had a picnic out there.  We told stories, singing made up songs about the turtles in the area.  There are three species of significant turtle.  We visited the lagoons and drew water.  There is a story about one old lady being murdered there.  She had taken her kids to raise them on her country.

12.    Robert has been out there more recently than I have.  Last time he went out there would have been to take Uncle Joe out, and again on another visit to take Uncle Joe’s daughter Sandra.  The Stanton family, who are Kungarakan, also go there.  They are now living at Darwin River.  Kez Stanton went out there recently, earlier this year, and took other members of the McGinness family with her.

13.    Mukdibirr is a Kungarakan sacred site [AAPA 5072-57] on the ELA, but I can’t tell you much about it, because I do not have the right to talk about it.  My cousin Ida is a namiyak or senior person, and is entitled to speak for this area.  I feel I am not free to speak about it without her say so.

14.    There are some other sites nearby.  One is Tjel Pirrmainy [AAPA 50-72-78], about seven kilometres north east of the ELA.  Tjel means ‘ear’.  This is where, in the Dreamtime, a man called Patj Patj travelled, searching for his family.  At this place, he put his ear to the ground to listen for his family.  He travelled on in thirst.  Nearby at Tjonorr Pirrmainy [AAPA 5072-77], in his great thirst, his spittle fell to the ground.  Tjonorr means ‘spit’.  This is part of a Dreaming Track, which crosses the ELA to the Wagait Reserve, and ends at Patj Patj.  My grandmother grew up her kids there almost in the direction of that Journey.  Lucy Mine is in close proximity to that track, which goes through the eastern part of the ELA.  My son Robert has been made a custodian by Kungarakan for Patj Patj.  He carries Kungarakan men’s business.

15.    I know what mining does; it devastates the country.  Exploration leads to mining.  I am concerned that exploration and mining might disturb the waterways.  I would not want any damage done to those two lagoons: Alngindabu and Karial.  I don’t want them pumping the lagoons out.  It would damage our whole family framework if due concern wasn’t taken to preserve the environment for us.  We don’t like it at all, disturbance to land.  When our family was mining, we only did little shafts with a pick and shovel, just to sustain our existence.

16.    Kungarakan people are freshwater people and we look after the water.  It is our responsibility to look after the water.  If there is any blocking of the water, it is our responsibility to remove the blocks and let the water flow.  If they damage the waterholes, the water can’t go onto the area it should be servicing.”

Aboriginal Communities

[9] The evidence before the Tribunal discloses that there are no Aboriginal communities on the proposed tenement. In Attachment A to the Form 4 lodged by the Objectors, reference is made to Belyuen community, which is said to be 30 kilometres north of the proposed tenement, and Batchelor community which is 30 kilometres south east. The native title party also refers to a community in Darwin (OSC at para 35), but, as the government party quite correctly highlights (GPCR at para 53), this is many kilometres distant from the proposed tenement. In short there is no evidence of any Aboriginal communities on or near the subject area.

Recorded or Registered Sites

[10] There is some dispute about the number of recorded sites on the area of the proposed tenement. The native title party has suggested there are three, but the government party concedes that only one site is located on the proposed tenement, with two others very close to it. In any event, it is clear that there are three sites located either on or immediately adjacent to the subject area, namely:

(a) Mukdibirr (AAPA 5072-57), which is described as the name for an area of country located between Annie River and Mount Finniss Road, consisting of billabongs, flats and ridges. All parties concede that this site is located within the boundaries of the proposed tenement;

(b)     Djaekaboi’s Grave (AAPA 5072-93); and
(c)     Kidirr Pirrmainy (AAPA 5072-106).

[11] There are other sites in the vicinity, and two of these are referred to in the Affidavit of Ms Mills McGinness namely Tjonorr Pirrmainy (AAPA 5072-77) and Tjel Pirrmainy (5072-78). Both of these sites have been registered by the Aboriginal Areas Protection Authority (AAPA).  This means that the sites have been identified to the Authority, by Aboriginal custodians, as sites requiring protection, and that the Authority has subsequently documented and evaluated the sites. Both of these sites are located approximately six kilometres north east of the subject area.

Previous Exploration/Mining Activity

[12] Both the native title party and the government party have provided the Tribunal with evidence of extensive exploration and mining activity that has occurred on the proposed tenement over a very long period of time.

[13] Of relevance in this regard is the fact that, around a century ago, Ms Mills/McGinness’ paternal grandfather opened the Lucy Mine which was located on the proposed tenement. At paragraphs 4 and 5 of her Affidavit she outlines her family’s association with tin mining in this area. Her evidence is consistent with the history of this area outlined by Toohey J in the Finniss River Land Claim Report at paragraphs 197-198. His Honour made the following observations:

“Alngindabu, from whom the McGinness family trace descent, married Stephen McGinness, a white man who had been working on the North Australian Railway.  As Mr McGinness made his way to Bynoe Harbour to work on the tin mines, taking with him Alngindabu, her sister Kurmandam and her brother Maranda, they stumbled on what is now the Lucy Tin Mine…Lucy was Alngindabu’s European name; the Kungarakany name for the area of the mine is Mugudiber..Stephen McGinness took up the Lucy Mine in 1908 and remained there until just before his death in 1918.”

[14] In addition, the government party has provided the following details of prior mining tenements that have been granted over the subject area since 1973:

Gold Mining Lease (Waggaman) - GML: 166B, 167B, 168B,

Mineral Lease (Waggaman) -         MLN 897B

Mineral Lease (Northern) - MLN: 293, 814, 815

Mineral Claim (Northern) - MCN: 3216, 3217, 3217

Extractive Mineral Permit (Northern) - EMPN: 1255

Substitute Exploration Licence - SEL: 7439

Exploration Licence - EL: 1407, 1596, 2613, 2661, 4906, 6217, 6398, 6563, 7079, 8147.

[15] Unfortunately in this instance the government party did not provide maps which show the boundaries of the previous tenements, nor has it submitted mapping (or other documentary material) indicating the nature or area of previous exploration/mining activity. Nevertheless despite this, it is clear that this particular part of the Northern Territory has been the subject of extensive and long term mining activity.

[16] In addition within the proposed tenement there are also two existing mining tenements, namely Mineral Lease Northern 813 (which was granted on 22 September 1977) and Mineral Claim Northern 1052 (which was granted on 26 February 1988). Both of these tenements are located within two kilometres of recorded sites 5072-106 and 5072-93).  Moreover there are six Mineral Claim Northern applications, yet to be determined, also located within the proposed tenement.

Nature of the Proposed Exploration Activity

[17] The Exploration Licence Application completed by the grantee party, and submitted by the government party, discloses that the proposed work program for the first year will comprise exploration for tin. This will entail “ground reconnaissance followed by auger drilling of areas, and admin (sic) and reporting.” The grantee party also disclosed that the “aim of the work is to find additional resources for the establishment of the resourcing plant from the Annie mine on cessation of mining.”

[18] The nature of the grantee’s evidence before the Tribunal is quite unusual. When relevant contentions were lodged there was an Option Agreement in place between the grantee party and Julia Corporation Limited (“Julia”). Julia was represented by McColl Exploration & Mining Title Services Pty Ltd (“McColl”). McColl prepared and submitted the grantee party’s contentions, however those contentions were in large part predicated on the manner in which Julia operates and its mining and exploration experience.

[19] On 21 December 2001 Julia advised the Australian Stock Exchange that it would not be executing the Option to Purchase entered into with the grantee party. McColl notified the Tribunal of these developments in a letter dated 21 December 2001.

[20] The status of the contentions submitted by McColl was dealt with at the Listings Hearing  convened on 12 February 2002. At that hearing Mr Frith, on behalf of the native title party, initially submitted that the Tribunal should disregard the contentions filed by McColl as they represented instructions given to McColl by Julia which no longer had any connection with the expedited procedure objection inquiry. Mr Chrisp, on behalf of the grantee party, submitted that Julia was in fact acting as the agent of the grantee party in lodging the contentions through McColl, and as such the contentions should remain in evidence. The government party did not object to Mr Chrisp’s submission, and the native title party requested that Mr Chrisp’s clarification be submitted in writing.

[21] In a fax message dated that same day (Gr 2) Mr Chrisp provided this written advice: “We confirm that Julia Gold & Julia Corporation were acting on behalf of Corporate Developments in relation to the expedited hearing for EL(A) 9905.” No party made any submissions about this advice, and accordingly the contentions lodged by McColl stand as those of the grantee party.

[22] Whilst the Tribunal does have material before it from the grantee party, the worth of many of the submissions is minimal. This is so as the contentions are focused on the performance record of Julia and the intentions of Julia. Consequently, to a very large extent the Tribunal does not have before it evidence of the background or intentions of the grantee party. Insofar as this evidence is substantially missing from this inquiry, I have proceeded on the assumption that the grantee party will, subject to the regulatory regime in force, fully exercise its legal entitlements.

Expert Evidence

[23] As with all expedited procedure inquiries I have conducted in the Northern Territory the native title party has submitted Affidavits of Mr Mark Foy and Mr Jeffrey Stead. In addition other material which analyses legislation dealing with significant areas/sites as well as an analysis of rights conferred under exploration licences has also been submitted. I have considered all of this material when conducting this inquiry, and, so far as is relevant, I refer to the comments I made about this evidence in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.

[24] It is relevant to point out that the expert evidence submitted by the native title party is substantially generic. By that I mean that it is of general relevance to expedited procedure inquiries in the Northern Territory, and is not specifically directed to the circumstances pertaining to this particular inquiry. This type of evidence can sometimes be of critical importance in an inquiry, however it is, by its very nature, dependent (in other than special circumstances) on the primary evidence submitted. In this inquiry the native title party’s primary evidence is not extensive, and, as such, the extent to which the secondary contentions of experts is of utility is likewise limited. In these inquiries the Tribunal looks initially to actual evidence of the Objectors, or native title holders, or evidence by third parties that is specific to the proposed tenement or to the specific interaction of the regulatory regime to the circumstances of that tenement – see e.g. Violet Drury/Western Australia/Giralia Resources NL, WO00/93, unreported, Deputy President Franklyn 18 May 2001 at [9] and Kevin Peter Walley/Western Australia/Allan Neville Brosnan WO00/427, unreported, Member Sosso 17 August 2001 at [57], Evelyn Gilla/Western Australia/Wayne Allie WO00/436, unreported, Member Stuckey-Clarke 19 December 2001 at [42] –[49]. An impressive superstructure of legal and technical contentions will not sustain an objection if it is built on an inadequate base of primary evidence.

Land Claim Report

[25] The native title party initially provided to the Tribunal extracts from the Finniss River Land Claim Report dated 22 May 1981. That was a  Report of  Mr Justice Toohey and dealt with an extensive land claim under the Aboriginal Land Rights (Northern Territory) Act 1976. The area claimed was from the mouth of the Finniss River in a south-easterly direction to the Adelaide River and the Stuart Highway.

[26] Within the area of the claim was the land and waters that comprise the proposed tenement. This part of the claim was unsuccessful. The native title party informed the Tribunal (OSC at para 26l) that His Honour was not satisfied on the evidence before him, that common spiritual affiliation or primary spiritual responsibility for sites was demonstrated with respect to this area. His Honour found as follows (at [207]):

“In regard to Area 2, I accept the evidence of the Kungarakany claimants regarding such places as were mentioned on that land. Some of those places have an importance because of family associations and because people used to go and still go there for visits.  But I am not satisfied, from the evidence, that traditional ownership was made out by the Kungarakany for Area 2, that is, I am not satisfied that common spiritual affiliations or primary spiritual responsibility for sites was demonstrated.”

[27] The Tribunal was also informed (OSC at para 26m) that the native title claim group includes  the Kungarakan People, who were successful in the land claim in respect of Areas 3, 4 and 5 , though, not of course, with respect to Area 2 which includes the proposed tenement. The traditional owners of each of these Areas include Ms Mills/McGinness who was specifically named by Justice Toohey at page 44 of his Report as one of the Kungarakan People.
[28] Nevertheless the native title party initially only provided to the Tribunal short extracts from the Land Claim Report.  Of a Report totalling 99 pages only 9 pages were provided to the Tribunal and the other parties. Many critical matters were either not addressed in the initial contentions or in the extracts supplied. For example, it was not even obvious from the material submitted who the Aboriginal Land Commissioner was who conducted the inquiry.

[29] The Tribunal is not bound by rules of evidence (s.109(3)). However, that does not mean that it should accept into evidence all material that a party puts before it. The overriding principle that governs the receipt of evidence is that procedural fairness must be accorded to all parties. Accordingly, if it would be unfair to receive into evidence material submitted by a party, the Tribunal is not obliged to have regard to that material - see Mt Gibson Manager Pty Ltd v Deputy Commissioner for Taxation (1997) 81 FCR 335 and Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1. In this matter I pointed out to Mr Frith at the Listings Hearing of 12 February 2002 that the extracts of the Land Claim Report that had been submitted, were inadequate in that there were a number of critical issues about the relationship of the various persons and lands in that claim, and in these proceedings, which were unclear.

[30] In this instance the native title party’s initial submission was that the Tribunal should adopt extracts from Toohey J’s Report pursuant to section 146(b). Previously I have been prepared to accept into evidence extracts from Land Claim Reports, but only after I had personally obtained a copy of those Reports and satisfied myself after reading the full Report that it would be appropriate to do so. In those instances where this course of action was followed the reception into evidence of the extracts did not prejudice either the grantee or government parties as in no instance was the objection upheld. However, I have subsequently determined that this approach should not be continued. I will no longer adopt this course because the Tribunal is independently obtaining, reading, and possibly being influenced by, material in a Report which is not in evidence. While the Tribunal is not limited to the evidence submitted by parties, it should not, as a matter of principle, act upon evidence which is not disclosed to all of the parties and which those parties have not been accorded an opportunity to make submissions on – see R v Metropolitan Fair Rents Board; Ex parte Canestra [1961] VR 89 and Wall v Windridge [1999] 1 Qd R 329.

[31] Consequently I formed the view that if the native title party wanted the Tribunal to accept into evidence the findings of an Aboriginal Land Commissioner, the Tribunal and the parties should be provided with a copy of the full Report being relied upon, and that the native title party should specifically address in contentions, the relationship between the land and waters and traditional owners, the subject of the land claim, and the land and waters and the native title holders, the subject of these proceedings.

[32] Mr Frith subsequently lodged a full copy of the Land Claim Report and made very helpful submissions about the relevance of that Report to these proceedings. The approach adopted by Mr Frith was correct, and I am satisfied that the Land Claim Report is of direct relevance to this inquiry. Moreover both the government and grantee parties have before them all of the evidence which the Tribunal is considering and could have, if they wished, specifically addressed any of the contentions made by the native title party.

[33] One issue of concern to the Tribunal, nonetheless, is the fact that the Land Claim Report was written in 1981, and was based, inter alia, on evidence given at hearings convened in Darwin and Batchelor between August 1980 and May 1981. In other words the evidence and the findings are more than two decades old. Despite this the native title party contends that the findings of Toohey J are particularly relevant to the criteria in section 237 (a) and (b).

[34] I would agree with the native title party that findings about specific sites and their significance by the Aboriginal Land Commissioner would be of assistance to the Tribunal. The fact that those findings were made more than 20 years ago is not an issue insofar as those findings concern the traditional laws and customs of the traditional owners.

[35] The finding by an Aboriginal Land Commissioner of a traditional entitlement to forage, however, is less helpful and relevant to an inquiry into community or social activities. It is less helpful for two reasons.

[36] The first is that an Aboriginal Land Commissioner makes a finding of the traditional entitlement to forage.  In the leading textbook on this area of the law – Aboriginal Land Rights Law in the Northern Territory, the author (G.Neate) makes this observation (at p.78): “The Act is concerned with entitlement to forage rather than with foraging itself, though the latter may well be the best evidence of the former.” In short, a finding that there is entitlement to forage does not necessarily mean that the Commissioner has found that the traditional owners are actually engaging in that activity. As such some caution needs to be exercised by a native title party in asserting that a finding of a right to forage is evidence of community or social activities within section 237(a). The former is directed to the issue of entitlement whereas the latter is directed to actual activities. Certainly foraging (as an activity) is directed towards hunting, the gathering of food, firewood, water and items required for daily sustenance, and so is of direct relevance to a section 237(a) inquiry. However, my reading of the Finniss River Land Claim Report does not disclose a finding by Toohey J of either an entitlement to forage by the Kungarakany in Area 2 or any finding of actual foraging in that Area. However, even if His Honour had found an entitlement to forage, that would not necessarily be sufficient to address the requirements of section 237(a) unless there was also some evidence in a Land Claim Report that this entitlement to forage was being exercised.

[37] A second issue, though, is whether evidence (if there were any) of foraging that took place two decades ago can or should be automatically assumed by the Tribunal to have current relevance. Evidence of community or social activities must be directed to contemporary activities. There must be some material before the Tribunal which demonstrates that the grant of the tenement would be likely to directly interfere with the carrying on of those activities. Section 237(a) speaks of community or social activities that are occurring, not activities that historically may have occurred on the area of the proposed tenement.

[38] Certainly if there are findings of foraging occurring on, or in the immediate vicinity of, a proposed tenement a number of decades ago, and this evidence is supplemented by primary evidence of contemporary activities, then those findings will assist the Tribunal. However, great caution needs to be exercised in drawing conclusions from a Land Claims Report on the entitlement to forage when:

(a)     those findings are so dated;

(b)they are not directed to the area of the proposed tenement or areas immediately adjacent to it; and

(c)     there is no evidence of actual foraging in this area.

Legal Principles

[39] 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.

[40] 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

[41] There is scant evidence before the Tribunal of community or social activities occurring on the proposed tenement.

[42] Ms Mills/McGinness deposes that she, and other members of her family, still visit the area of the Lucy Mine and the two lagoons located 5 kilometres east of the Mine. However, as neither she nor other family members have vehicles, it is physically difficult to visit the area. The last time she visited the area was 18 months prior the Affidavit being executed. Her son Robert also visits the area, but it is clear from her Affidavit that his visits are also sporadic. In addition members of the Stanton family (who are Kungarakan) also visit the area, with the last visit being earlier in 2001.

[43] Ms Mills/McGinness deposes that when visiting the proposed tenement children are told the history of the area, water is taken from the lagoons and stories and songs are conceived. Robert, who is recording the Kungarakan language, surveys the area.

[44] The native title party submits (OSC at para 38) that the community or social activities of the native title claim group include:

(a)     foraging;
(b)     hunting, fishing and gathering of bush tucker;
(c)     teaching children and young people about traditional laws and customs;

(d)     quiet enjoyment and visiting country.

[45] The response of the government party to these contentions was as follows (GPCR at para 57):

“the lack of particularity as to the claimed activities on the proposed licence area makes it impossible for the Tribunal to attribute any evidentiary weight to the assertions.  The specific locations at which the hunting and other activities are said to occur are patchily identified; the seasonal variations in the game or item sought, the number of persons engaged in these activities, all are unstated.  It is not sufficient to merely assert, as the Objectors’ Contentions do; that ‘these activities occur over some or all of the licence area, and in its vicinity.”

[46] There are some serious deficiencies in the evidence and contentions of the native title party. It is asserted that activities of the native title claim group include foraging, and reliance is placed on a finding of Toohey J in his Report at paragraph 218. When one looks at the finding of His Honour it is as follows:

“218 I am satisfied that traditional ownership has been established in regard to the country around Miniling and Yitpiliny but not otherwise in relation to Area 3. I am also satisfied that the Kungarakany and Warai are entitled by Aboriginal tradition to forage as of right over that part of Area 3.”

[47] His Honour’s finding, however, only relates to Area 3, and the proposed tenement is located within Area 2. Additionally His Honour only found a right to forage in the country around Miniling and Yitpiliny. These areas are identified in a Map of Sites located at the back of the Land Claim Report. It would appear that the distance between the Lucy Mine and this country is some 30 kilometres. Consequently the finding of Toohey J on the entitlement to forage is of no assistance to the Tribunal in this inquiry.

[48] Some other contentions from the native title party are in the nature of assertions which  have little if no evidentiary support. There is no evidence of contemporary hunting, fishing or gathering of bush tucker. Reference is made in the contentions to paragraphs six and nine of Ms Mills/McGinness’ Affidavit. At paragraph 6 reference is made to lagoons “where they took food and water.” The reference to the taking of food and water is in the past tense, and quite plainly relates back to the previous paragraph where she recounts her family’s relationship to the area. There is no suggestion that any of the current native title claim group hunt, fish or gather bush tucker in this area.

[49] The evidence before the Tribunal discloses that the area is visited on an irregular basis by members of the claim group and then for purposes which are not focussed on hunting, fishing or gathering  bush tucker. In short the community or social activities carried on are quite limited.

[50] In order for the Tribunal to sustain an objection pursuant to section 237(a) there must be material which shows that there is a real risk that there will be a substantial impact on community or social activities. In evaluating this risk the Tribunal needs to ascertain the area where the activities occur, the frequency of the activities, the number of persons engaging in the activities and the nature of the activities.

[51] The evidence before the Tribunal discloses that there may well be some community or social activities that take place on the area of the proposed tenement, albeit on a relatively infrequent basis. I am prepared to accept that there is the possibility that exploration activities could interfere with them in some way. However there is not sufficient evidence before the Tribunal that would substantiate a finding that there is a likelihood of the community or social activities of the native title claim group being substantially interfered with.

[52] In Smith v Western Australia (2001) 108 FCR 442 French J pointed out that the extent of interference and the proximity of its causal connection to the future act should not be considered in isolation. He said (at 451): “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 the impact of the proposed future act is insubstantial.”  In this matter not only is the bulk of the proposed tenement located with a Crown Lease in Perpetuity, but, importantly, within the area of the proposed tenement there are mining tenements, and, apparently, ongoing mining activity.

[53] In conclusion, the evidence presented to the Tribunal of community or social activities in the area of the proposed tenement is slight. Moreover those activities are irregular and not of such a nature that there is a real risk of substantial interference by the grantee party exercising its rights under the exploration licence.

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

[54] The native title party contended (OSC at para 47) that there were three areas or sites of particular significance that the grant of the exploration licence would be likely to interfere with, namely: Mukdibirr, Tjel Pirrmainy and Tjonorr Pirrmainy.

[55] The Tribunal has some difficulty with the contention that Mukdibirr is a site of particular significance based on the evidence provided by Ms Mills/McGinness. While she deposes (at para 13) that Mukdibirr is a sacred site she then goes on to say: “but I can’t tell you much about it, because I do not have the right to talk about it. My cousin Ida is a namiyak or senior person, and is entitled to speak for this area. I feel I am not free to speak about it without her say so.”

[56] Accordingly the only primary evidence before the Tribunal is that Mukdibirr is a sacred site, but no evidence about its importance to the native title claim group and, in fact, a statement that the person giving evidence has not got the right to speak about it. If there is an assertion that an area or site is of particular importance then there must be some evidence of “the nature of the sacredness so that…a Tribunal could arguably reach a conclusion about likelihood of a real chance or risk of interference.” – Little v Western Australia [2001] FCA 1706 at [79] per R D Nicholson J. Moreover it is clear from her own evidence that the deponent has no qualification or right to speak for this site. As such whether in fact it is a site of particular significance, as that term is understood pursuant to section 237(b), is entirely problematic.

[57] It is also of interest to note the following comments of Toohey J on “Mugudiber”. This is a place named by the Kungarakany claimants as significant. “Mugudiber” is in the same area as Mukdibirr, and although the Kungarakany claimants named Tjel Pirrmainy and Tjonor Pirrmainy as places of significance no mention was made of Mukdibirr. It may well be that there is a correlation between Mudgudiber and Mukdibirr. In any event Toohey J made these comments (at [203]):

“Mugudiber is a very good illustration of the difficulties of assessing the Kungarakany claim. It is the area around Lucy Mine and I accept that it, or at any rate a substantial part of it, lies within Area 2. I accept that historically it was Kungarakany country but I still have to determine whether there are now traditional Aboriginal owners as defined in the Act. There is no doubt that, in a general sense, the area is of great importance to the McGinness family. It is the site of mining activities going back to Stephen McGinness’ discovery early this century. Val McGinness was born there, he prospected with Xavier Herbert in the 1930s and the Lucy Tin Mine is now his home and that of his family. Mrs Stanton and Mrs Bishop spoke of visits to the area but again much of this seemed related to the presence of Mr Val McGinness and his family.. It is interesting that the claim book discusses Mugudiber under the heading ‘Kungarakany associations’, says nothing of the spiritual significance of the area and does not mention Mugudiber in the appendix to the claim book where sites of spiritual significance to the Kungarakany are listed and does not mention it in Exhibit 9A, additional site information. None of the Kungarakany claimants who gave evidence spoke of any ritual or ceremonial significance attached to the area”

[58] With respect to Tjel Pirmainy and Tjonorr Pirrmainy, I accept that these are sites of particular significance to the native title claim group. The evidence given by Ms Mills/McGinness is specific and helps alert the Tribunal to the sacredness of the sites. Moreover, her evidence is consistent with the discussion of these sites by Toohey J in the Land Claims Report at [205]. Nevertheless, even accepting that these are sites of significance, the fact is that they are located off the proposed tenement, and, in fact are approximately six kilometres distant.

[59] I have previously found that the fact that an area or site is not located on the proposed tenement is not a bar to an inquiry by the Tribunal pursuant to section 237(b), but with the following qualification:

“[89] The native title party also contended that the areas or sites do not have to be in the proposed tenement area. This contention is soundly based, however, as the government party highlights, if an area or site of particular significance is not located on the proposed tenement, then if paragraph (b) is being relied upon by an objector, that objector should demonstrate how that area or site will be directly and physically affected by exploration activities.  Those exploration activities could be either on or off site, but obviously if they are off site then the objector would need to demonstrate that those activities are in fact an integral part of the activities on site (eg construction of roads, truck movements to and from the proposed tenement etc).”

Moses Silver/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13, unreported, 1 February 2002 at [89]

[60] There is no specific evidence that the grant of the proposed tenement would be likely to result in any direct and physical interference with these sites. Whilst I have no reason to doubt that Ms Mills/McGinness may have some concerns that the grant of the exploration licence may pose some potential risk of interference to those sites, there is no material of any credible nature that could justify a finding by this Tribunal that there is any real likelihood that those concerns have any objective basis. Moreover, even if there were (and it is abundantly clear that there is none), then applying the presumption of regularity, and having regard to the regulatory regime in force with respect to the protection of sacred sites, there is no real risk of those sites being interfered with.

[61] As previously pointed out, there are other sites recorded by the AAPA in the vicinity of the proposed tenement, but no specific primary evidence has been adduced about these sites by the native title party. In the absence of such evidence, there is no basis whatsoever for the Tribunal finding that any of these sites are of particular significance to the native title party, let alone that there is any real risk of the sites being directly interfered with by the grant of the exploration licence.

[62] In conclusion, there are no sites on the proposed tenement which, on the basis of the evidence adduced, are of particular significance within the meaning of that term in section 237(c). While there are two sites of particular significance outside of the proposed tenement, there is no evidence that the grant of the exploration licence would be likely to result in any direct interference with them.

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

[63] All of the evidence before the Tribunal demonstrates that this particular part of the Northern Territory has been the subject of extensive exploration and mining activity for over a century. The proposed tenement lies with Area 2 of the lands and waters the subject of the  Finniss River Land Claim Report. In that Report Toohey J said (at [197]): “Area 2 has had a long association with mining, lying reasonably close to such historical towns as Southport, Brocks Creek, Mount Wells and Mount Shoebridge.”

[64] In fact this objection raises a number of out of the ordinary circumstances. As previously mentioned, Alngindabu, from whom Toohey J found, the McGinness family trace their descent, was the wife of Stephen McGinness who founded the Lucy Tin Mine. As Ms Mills/McGinness points out in her Affidavit the tin mines in that area were named after her relatives. In addition after Mr Stephen McGinness died in 1918, Justice Toohey gives this account of what occurred (at [198]):

“Between 1918 and 1922 Mr Val McGinness’ brother-in-law worked the Lucy Mine and it then passed out of the family’s hands. Between 1932 and 1939 Val McGinness and the author Xavier Herbert made several trips to the area to prospect.  Dr Herbert’s experiences found their way into the novels he later wrote. In 1939 Mr Val McGinness went to Queensland and did not return to the Territory until 1960. Not long after he learnt the exploration licence over the Lucy Mine had expired; he pegged the land and took up the mine where he has continued to live with his family. The history of the McGinness’ contact with the area illustrates some of the difficulties associated with this claim.  The presence of the family may in a sense owe its origin to Alngindabu’s traditional association with the land.  But is its continuance (not overlooking the break between 1939 and 1960) explicable on that ground or because of the mine or perhaps a combination of both?.”

[65] The native title party contends (OSC at para 69) that the Objectors are concerned about major disturbance to land or waters within or in the vicinity of the licence area. In that regard reliance is placed on paragraphs 15 and 16 of the Affidavit of Ms Mills/McGinness. In her Affidavit she expresses concern that damage may be done to Alngindabu and Karial lagoons (which are 5 kilometres east of the Lucy Mine). In particular there is concern expressed that the lagoons may be pumped out. It is pointed out that the Kungarakan are freshwater people who have a responsibility to look after water.

[66] In response the government party made these submissions (GPCR at para 75):

“The state of the evidence simply does not establish how, where and why a major disturbance is likely to occur to any land or waters concerned.  The concern stated in the affidavit of Mrs Mills/McGinness relate to the scenarios of ‘pumping the lagoons out’ and polluting/blocking the watercourses.  This may be a sincere expression of concern but it cannot be regarded as substantive evidence. Mrs Mills/McGinness’ concerns are highly unlikely if both parties act lawfully. Please refer to the Second Schedule Conditions.”

[67] The government party had adduced substantial evidence of the regulatory regime in force which is designed to minimise the risk of major disturbance by both strictly regulating the exercise of rights under an exploration licence and for the rehabilitation of sites. Deputy President Franklyn has, in a recent determination, clearly set out the essentials of this regime, particularly following the commencement of the Mining Management Act on 1 January 2002. I adopt for the purposes of this determination his analysis of the regulatory regime and the implications it has for an inquiry into the likelihood of major disturbance pursuant to section 237(c) – see Gabriel Hazelbane & Ors/Northern Territory/Rodney Johnston DO01/40-41, Deputy President Franklyn, unreported, 27 March 2002 at [13] – [16]

[68] No evidence has been presented to the Tribunal by the native title party of any major or deleterious impact of exploration or mining on the community or social activities of the native title claim group or of any sacred sites, despite the fact that this area has been the subject of such activities for more than a century. In addition there is no evidence of any particular geological or other circumstances that render this area at particular risk from exploration activities. For example, there is no evidence of rock formations or ecologically sensitive areas such that normal exploration activities would be likely to result in a major disturbance.

[69] The evidence adduced by Mr Foy on behalf of the native title party was generic and was not directed to the specific land or waters the subject of this inquiry.

[70] Although Ms Mills/McGinness says that she knows what mining does, and that it devastates the country, and that exploration leads to mining, there is no evidence before the Tribunal about previous mining or exploration practices in this area. One would have expected that if previous exploration activity (of which there would be multiple examples) in this general area had resulted in major disturbance, that the native title party would have been able to inform the Tribunal of the nature of such disturbance.  This is particularly so having regard to the quite specific and special relationship that various members of the native title claim group have had to the history of exploration and mining in this locality over many decades.

[71] The Tribunal has also taken into account the fact that there are no Aboriginal communities located on or in the vicinity of the proposed tenement and that there are no sites or areas on the proposed tenement that are of particular significance within the meaning of section 237(b).

[72] The Tribunal has had regard to the fact that the proposed tenement has within its outer boundaries existing mining tenements, and that in the area both to the north and south the government has granted both exploration licences and mining tenements. In evaluating the risk of major disturbance by the grantee party it is appropriate to have regard to the ongoing disturbance resulting from the activities of lessees of numerous mining tenements in the immediate vicinity. Whilst it could well be contended that the grant of this tenement may compound the overall level of disturbance, it is clear that the likelihood of major disturbance from exploration activity in this context would be low having regard to the overall environment of this locality.

[73] In conclusion, the Tribunal has been presented with no material that could result in a finding 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 9905 to Corporate Developments Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.

John Sosso

Member