David Doolan & Ors on behalf of the Andado, Pmere Ulperre, New Crown and Therreyererte family groups v Tri-Star Energy Company and Another

[2017] NNTTA 44

NATIONAL NATIVE TITLE TRIBUNAL

David Doolan & Ors on behalf of the Andado, Pmere Ulperre, New Crown and Therreyererte family groups v Tri-Star Energy Company and Another [2017] NNTTA 44 (24 July 2017)

Application No: DO2016/0001-0020

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

David Doolan & Ors on behalf of the Andado, Pmere Ulperre, New Crown and Therreyererte family groups (DC2014/004)

(native title party)

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Tri-Star Energy Company

(grantee party)

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Northern Territory of Australia

(Government party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	24 July 2017

Catchwords:

Native title – future acts – proposed grant of mineral authorities – expedited procedure objection applications – whether acts are likely to interfere directly with community or social activities – ceremonial site – whether acts are likely to interfere with areas or sites of particular significance – site protection regime – significance of registration under heritage legislation – whether acts are likely to involve major disturbance to land or waters 

Legislation:

Native Title Act 1993 (Cth), s 237

Mineral Titles Act 2010 (NT), ss 26, 31, 105(2), 118(2)

Mining Management Act (NT), s 35

Northern Territory Aboriginal Sacred Sites Act, ss 19F, 19G, 22(1), 29, 33, 34, 35, 36(1), 37

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3, 69(1)

Heritage Act 2011 (NT)

Cases:

Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’)

Dann v Western Australia (1997) 74 FCR 391; [1997] FCA 332 (‘Dann v Western Australia’)

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)

Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)

Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)

Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)

Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert Lands v Teck Australia’)

WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2002] NNTTA 17 (‘WF v Emergent Resources’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representative of the native title party:

Bob Gosford, Central Land Council

Representative of the grantee party: Dominic McGann, McCullough Robertson

Representatives of the Government party: Jennifer Laurence, Solicitor for the Northern Territory

REASONS FOR DETERMINATION

[1]On 24 August 2016, the Northern Territory government (‘the Territory’) gave notice of its intention to grant 21 mineral authorities to Tri-Star Energy Company (‘Tri-Star’) under the Mineral Titles Act (NT) over land the subject of two registered native title claims. This decision concerns whether the Territory can validly grant the mineral authorities without negotiations between the Territory, Tri-Star and the registered native title claimants as would otherwise be required under the Native Title Act 1993 (Cth).

[2]The proposed mineral authorities comprise 14,750 square kilometres of land in the southern region of the Northern Territory, close to the border with South Australia (the mineral authorities to which this decision relates are set out in Schedule 1 of these reasons). At the time the notice was given, the land was subject to two registered native title claims, namely the New Crown and Andado Pastoral Leases native title claim (DC2014/004) and the Victory Downs, Mt Cavenagh, Mulga Park and Umbeara Pastoral Leases native title claim (DC2015/002). The Victory Downs claim has subsequently been determined. By virtue of registration, a registered native title claimant or registered native title body corporate has certain procedural rights, including the right to negotiate about mineral proposals, subject to certain exceptions.

[3]In notifying its intention to grant the mineral authorities, the Territory included a statement that it considers the mineral authorities to be acts attracting the expedited procedure. An act attracting the expedited procedure is a proposal affecting native title which does not need to go through the normal negotiation procedure under the Native Title Act before it can be validly granted. Where the Territory asserts that a proposed grant attracts the expedited procedure, any registered native title claimant for the area may object to the inclusion of the statement, provided they are registered by the end of the four-month notification period.

[4]In December 2016, the registered native title claimant for the New Crown and Andado claim lodged objections with the Tribunal in relation to 20 of the proposed mineral authorities. The registered native title claimant for the Victory Downs claim also lodged objections in relation to two of the mineral authorities, MA31377 and MA31378. As the Victory Downs objections were subsequently withdrawn, these reasons only concern the objections lodged on behalf of the New Crown and Andado claim. I also note that no objection was made in relation to MA31358. Whether or not this was an omission on the part of the native title party, based on the evidence before me I do not consider that I would have reached a different conclusion had they lodged an objection for MA31358.

[5]When the Tribunal receives an objection, it must conduct an inquiry to determine whether the proposed grant attracts the expedited procedure. Following the lodgement of the objections, I was appointed by President Raelene Webb QC to constitute the Tribunal for the purposes of conducting an inquiry into the objections and making a determination as to whether the mineral authorities are acts attracting the expedited procedure.

[6]In making a determination, the Tribunal must have regard to the following matters, which are set out in s 237 of the Native Title Act:

(a)Is the proposed grant likely to interfere directly with the carrying on by the native title holders of their community or social activities?

(b)Is the proposed grant likely to interfere with areas or sites of particular significance to the native title holders?

(c)Is the proposed grant likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?

[7]If the answer to any of these questions is ‘yes’, then the grantee party and the Territory must negotiate in good faith with any registered native title claimants or registered native title bodies corporate with a view to reaching agreement about the grant. If the Tribunal is satisfied the proposed grant is not likely to have those effects, the grant can validly proceed without the need for negotiations. The Tribunal’s task is to form a view on these matters by undertaking a predictive assessment of what is likely to occur as a result of the grant, taking into account the rights conferred, what is proposed to be done and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).

[8]The native title party contend that the grant of the proposed mineral authorities is likely to interfere with areas or sites of particular significance to the claim group. In particular, the native title party say there are 19 registered sacred sites within the tenement areas as well as sites that have been recorded by the Aboriginal Areas Protection Authority (‘AAPA’) and others that are neither registered nor recorded under the Northern Territory Aboriginal Sacred Sites Act (‘Sacred Sites Act’) but are nonetheless of particular significance to the native title holders.

[9]The Territory contends that interference with areas or sites of particular significance is unlikely to occur due to the operation of the Sacred Sites Act and other legislation concerned with the protection of sacred sites and the conditions on which the mineral authorities are proposed to be granted. Tri-Star states that it is aware of its obligations under the relevant legislation and intends to engage with the native title party to manage any risk of interference with areas or sites of particular significance.   

[10]I have had regard to the material provided to me by the parties and have determined that the proposed mineral authorities are acts attracting the expedited procedure. The reasons for my decision are set out below.   

The proposed future acts

[11]The background to the proposed mineral authorities is outlined in the affidavit of Alan Holland, who is the Director of Mineral Titles in the Mines Division of the Northern Territory Department of Primary Industry and Resources (‘DPIR’). Additional information is set out in the information provided in support of the tenement applications and the documents provided by Tri-Star.

[12]The proposed mineral authorities cover 14,750 square kilometres in an area known as the Perdika Basin. Tri-Star currently holds 24 exploration licences over the same land, each of which was granted pursuant to the expedited procedure. According to Mr Holland, the conditions on which the exploration licences were granted are substantially the same as the conditions which DPIR currently attaches to the grant of exploration licences. Tri-Star has undertaken 2-D seismic surveys and exploratory drilling in the area since 2006 and as a result has identified a 24-metre thick coal seam at a depth of approximately 200 metres. Tri-Star believes the area to be highly prospective for coal and other minerals.

[13]In July 2016, Tri-Star wrote to the Territory seeking the gazettal of the land as general reserved land to facilitate further exploration of the area. In August 2016, the Territory gave notice that the exploration licences would cease to be in force on the date of their expiry unless they were sooner cancelled, surrendered or renewed, at which point the area would become general reserved land for the purposes of the Mineral Titles Act. The notice specified that, on reservation of the land, it would become reserved from exploration for uranium, that a mineral authority would be the only type of mineral title a person could apply for, and that only a person intending to develop coal resources on the reserved land could apply for a mineral authority.  Tri-Star applied to the Territory for the grant of the mineral authorities on 22 July 2016.  

[14]A mineral authority gives the holder the same rights as the corresponding mineral title. Accordingly, the mineral authorities will confer the same rights held by Tri-Star under the exploration licences. An exploration licence gives the title holder the exclusive right to conduct exploration in the area and to carry on activities in connection with exploration such as digging pits, trenches and holes; sinking bores and tunnels; and removing samples in amounts that are reasonably necessary to evaluate the area’s potential for mining (Mineral Titles Act, ss 26 and 31). Section 118(2) of the Mineral Titles Act provides that a mineral authority will also be subject to the same statutory conditions as the corresponding title and Mr Holland confirms that DPIR intends to grant the mineral authorities subject to the same conditions as would be imposed for an exploration licence. As the native title party rightly notes, a key difference between the two forms of tenure is that a mineral authority provides security of tenure for a period of six years as opposed to the two-year period for exploration licences.  

[15]Tri-Star’s proposed work program and expenditure for years one to six are set out in an attachment to the tenement applications. The document also provides a more detailed program for years one and two. In relation to year one, I note that Tri-Star intends to drill up to four holes up to 360 metres deep, targeting the magnetic zone in a previously identified ring anomaly; up to ten bore holes to a depth of approximately 400 metres at approximately four kilometre spacing to fill in the selected area to define the resource; and up to three holes at approximately 400 metres deep as part of its scout drilling program. In relation to year two, I note that Tri-Star intends to drill up to four holes up to 400 metres deep in the ring feature; up to ten holes to a depth of approximately 400 metres at four kilometre spacing as part of its in-fill drilling program; and up to three holes at a depth of approximately 400 metres to confirm seam continuity along the subcrop edge of the mineral formation. No bulk sampling or earthworks are planned for the first two years and there is no reference to these activities in years three to six.

Interference with community or social activities: s 237(a)

[16]The task under s 237(a) is to assess the likelihood that the grant of the mineral authorities will directly interfere with the carrying on of the community or social activities of the native title holders. In making that assessment, I may only have regard to those impacts which are substantial and not merely trivial (see Smith v Western Australia at [26]).

Is there any evidence of community or social activities in the tenement areas?

[17]The native title party state that the basis of their objections is that the grant of the mineral authorities and the exercise of rights under the authorities are ‘contrary to section 237(a) and/or section 237(b)’ of the Native Title Act. However, they also state that they do not intend to pursue the objections in relation to s 237(a). The native title party have not offered any specific contentions regarding the community or social activities carried on in the area or the likely effect of the mineral authorities on such activities.

[18]The Territory contends there is an insufficient evidentiary basis to conclude that the mineral authorities would have a substantial impact on the native title party’s community or social activities. In particular, the Territory says there is no evidence indicating what activities are undertaken in the areas affected by the mineral authorities; whether those activities are community or social activities; where and how often the activities are undertaken; whether the activities can be undertaken on other areas, including areas beyond the boundaries of the mineral authorities; or to what extent the impact of the mineral authorities is likely to exceed existing impacts associated with pastoral activity and the previous exploration licences.

[19]Several Aboriginal communities or homeland areas are located in the vicinity of the mineral authorities, although they are excluded from the tenement areas. These are: Finke, Halfway Camp, Charlotte Waters, Bloodwood Bore, Beer St Bore and Anterre. Of these places, Finke appears to be the largest, with a recorded population of 191 based on ABS data from 2015 (the documents provided by the Territory do not include any population data for the other communities but satellite photography suggests that, with the exception of Finke, there are only a handful of buildings in each community). Finke is serviced by an aerodrome, health centre, school, council service centre and a police station. It is said to have a ‘plentiful groundwater source with good quality water’ and a fully reticulated sewerage system.  

[20]Agnes Matasia, a senior law woman who resides in Finke, states that traditional owners ‘still carry out ceremonies on our country and it is important for us to continue doing that.’ She says there are both men’s ceremonies and women’s ceremonies, and that during women’s ceremonies they ‘paint [themselves] with ochre and sing and dance and teach women’s Law business to young girls and women.’ Ms Matasia also refers to a women’s site to the west of Finke called Ijuntu, which is a place ‘where families can go … for camping and for picnics or swimming.’ Marlene Doolan, who is also a resident of Finke and a named applicant in the native title claim, makes similar statements in her own affidavit regarding women’s ceremonies and teaching women’s business.

[21]Ms Matasia recalls a trip taken in March 2017 to another woman’s site called Alkitjulka, which is also west of Finke. Ms Matasia was accompanied on the trip by Ms Doolan, a third woman who is also a named applicant for the claim, and a male lawyer from the Central Land Council. Ms Matasia states that Alkitjulka is a place where ‘for many generations women have collected white ochre for use in ceremony.’ She describes it as ‘a place where women have held ceremonies for many years and where they would take a special healing water from the soakage in the creek there.’ Ms Matasia says that, after she has passed, her daughters ‘will carry on the special responsibilities for Alkitjulka and the Law that is found there.’      

[22]The affidavit of Ms Doolan also mentions the visit to Alkitjulka. Ms Doolan states that Alkitjulka is a site where many generations of women have collected white ochre for use in ceremony and a place where young women are taught women’s law and ceremony. Ms Doolan states that she has been to Alkitjulka before, but says she had not visited the site ‘for some years’ and it was the first time the woman who accompanied them had been to the site.                

[23]I find that the evidence of Ms Matasia and Ms Doolan establishes that native title holders carry on certain activities associated with ceremony, the collection of ochre and the teaching of law and custom at Alkitjulka. However, it is unclear how frequently these activities take place. The fact that Ms Doolan had not visited the site for some years and that one of the women had never been there perhaps suggests the site is not visited very often for these purposes. Similarly, Ms Matasia states that Ijuntu is a place where families can visit for camping and other activities, but gives no indication of the extent to which the place is actually used for these activities. While the presence of several Aboriginal communities might suggest that surrounding areas would be used for a variety of community or social activities, the evidence does not identify these activities and it is therefore difficult to evaluate the risk of interference.

Is there a risk of interference with any community or social activities?

[24]Tri-Star contends that the grant of the mineral authorities and the activities authorised under the mineral authorities are not likely to interfere with any community or social activities carried on by the native title holders. It says the work program sets out a limited scope of works that are permitted and intended to be carried out under each of the mineral authorities and there is no evidence these works will have a substantial impact on any community or social activities.

[25]Tri-Star notes that the area has been subject to a number of mineral titles including the exploration licences previously held by Tri-Star as well as earlier exploration licences and a historical geothermal exploration permit. In Tri-Star’s submission, any community or social activities carried on by native title holders in the area have co-existed with these mineral exploration activities since 1993 and the proposed activities are likely to be the same as or no more significant than the previous use of the land. The Territory notes that Tri-Star has held exploration interests in the area since 2006. 

[26]The Territory also notes that the mineral authorities will be granted subject to standard conditions that will mitigate the impact on community or social activities, specifically:

·Condition 1(a) of Schedule 2, which requires the holder of a mineral authority to carry out its activities in such a way as to minimise interference with the native title party’s community or social activities;

·Condition 2(a) of Schedule 2, which requires the holder to carry out its activities so as to minimise interference with the use of the land by other persons; and

·Condition 6(a) of Schedule 2, which requires the holder to consult with the native title party before undertaking any exploration activity other than reconnaissance.

[27]A mineral title may be cancelled if the Minister is satisfied that the title holder has contravened a condition (see Mineral Titles Act, s 105(2)). There is no evidence to suggest that Tri-Star will not comply with the conditions.

[28]Considering the limited evidence about the nature and extent of the community and social activities carried on in the area and taking into account the previous land use and the conditions which the Territory intends to impose, I am satisfied there is no real risk of interference with any community or social activities carried on by native title holders.

Interference with areas or sites of particular significance: s 237(b)

[29]Section 237(b) requires me to assess whether the grant of the mineral authorities is likely to interfere with areas or sites of particular significance to the native title holders in accordance with their traditions. An area or site is one of particular significance if it is ‘of special or more than ordinary’ significance to the native title holders (see Cheinmora v Striker Resources at 34-35).

Are there any areas or sites of particular significance in or around the tenement areas?

[30]The AAPA maintains a register of sacred sites under s 29 of the Sacred Sites Act. It also maintains a list of recorded sites which have not gone through the formal registration process. The Territory has provided a map produced by the AAPA which depicts a number of registered and recorded sites in and around the tenement areas. According to the Territory, the AAPA map shows 19 registered and 30 recorded sites in the tenement areas (excluding two recorded sites that are not within the area of overlap between the tenements and the New Crown and Andado claim). The map also depicts a large number of recorded sites outside the tenement areas. I have been unable to locate five of those 19 registered sites on the AAPA map; however, the parties accept there are 19 registered sites within the tenement areas and I will proceed on that assumption.

[31]The native title party argue that all sacred sites entered onto the AAPA register are, by the fact of registration, sites of particular significance for the purposes of s 237(b). In the native title party’s submission, the combination of factors involved in the registration of a site under the Sacred Sites Act supports a finding that a registered site is one of special or more than ordinary significance to the native title holders. They also point to the fact that only some of the information provided to the AAPA during the registration process is made publically available, which they say reinforces the particular significance of registered sites.

[32]Section 29 of the Sacred Sites Act requires the AAPA to register a site if it is satisfied that the site is a sacred site. ‘Sacred site’ is defined by reference to the definition in s 3 of the Aboriginal Land Rights (Northern Territory) Act 1973 (‘Land Rights Act’), which provides that a sacred site is one ‘that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginal or of significance according to Aboriginal tradition.’ The Territory contends that, because this definition is broader than the wording of s 237(b), whether or not a site is of particular significance must be determined having regard to the information on the AAPA register and any additional evidence provided by the native title party.

[33]If a site is registered under the Sacred Sites Act on the basis that is ‘sacred’ then it is fair to conclude that the site is one of particular significance. However, a site that is registered because it is ‘otherwise of significance according to Aboriginal tradition’ may not necessarily be a site of special or more than ordinary significance. As Deputy President Sosso observed in Silver v Northern Territory at [95], a commonsense interpretation of the definition ‘would lead one to the conclusion that [the Sacred Sites Act] is wide enough to provide protection to sites of significance, even if not of particular significance.’ Therefore, it cannot be assumed that a registered site is of particular significance without knowing the basis on which the site was registered.

[34]In the course of the inquiry, the Territory provided extracts from the AAPA register for the 19 sites registered within the tenement areas. It says that only two of those extracts, relating to sites 5846-003 (Ngaru Ngaru) and 5846-001 (Mingantju), provide an evidentiary basis to support a finding that the site is of particular significance to the native title holders. With respect to Mingatju, the extract identifies the site by reference to two physical features which are said to bear witness to the presence of an ancestral being. It also states that access to the site by women is prohibited. The extract for Ngaru Ngaru describes the site as being ‘of great importance (big business)’ and states there can be no access by women and ‘preferably no access by anyone but the traditional owners.’ On the basis of the information in these extracts, I accept that Ngaru Ngaru and Mingatju are sites of particular significance to the native title holders.     

[35]The other register extracts identify the significance of each site by reference to specific dreaming stories. For example, seven of the extracts refer to sites associated with the Kayala or emu dreaming. Richard Doolan, a senior traditional owner and native title holder for the area, says in his affidavit that these sites are ‘only a very small part of another large and significant dreaming track,’ although the only sites he mentions specifically are Ngaru Ngaru and Arleyernpe (which he describes as ‘[a]nother dangerous place’). Mr Doolan states there are many sacred and significant sites associated with the Kayala dreaming that have not been recorded or registered by the AAPA; however, he does not identify those sites or explain their significance other than to say they are associated with the Kayala dreaming.

[36]The Territory states that the other register extracts do not provide any evidentiary basis on which to conclude that the relevant sites are of special or more than ordinary significance. In particular, the Territory notes that none of those extracts include information about restrictions on information, constraints on activity or protective measures in relation to the site. One exception is Ilkemale (5846-004), which is associated with the Kayala dreaming. The register extract states that, although women are allowed to access to site under traditional law and custom, there are restrictions on behaviour. As the extract does not disclose the nature of those restrictions or consequences for breaching them, I am not satisfied the information in the extract supports the particular significance of the site.

[37]The other exception is the register extract for Walawuru Manngu (5947-001), which states that the site has been fenced by the Parks and Wildlife Commission. It is not clear whether this measure was taken to protect the heritage values of the site or for some other reason; however, I note that Walawuru Manngu is one of three sites referred to in the affidavit of David Doolan, a named applicant for the claim, as being associated with the Eaglehawk or Wedge-tailed Eagle dreaming, the others being Akerre (5846-027) and Pwerthenhatherre (6048-002). Mr Doolan states that the three sites ‘record a small part of large and significant Dreaming tracks that record the travels of our ancestor heroes across this country’ and he explains the specific relationship of each site with the dreaming story and the physical landscape. In my view, this evidence establishes the particular significance of the three identified Eaglehawk sites.

[38]Mr Doolan also refers to other sacred and significant sites associated with the Eaglehawk dreaming which he says have not been recorded or registered by the AAPA. In particular, he refers to a map depicting a cluster of sites related to and generally referred to as Akerre or Akara in the area around the Andado pastoral lease and the Mac Clarke Conservation Reserve. As the Territory notes, Mr Doolan does not describe the significance of these sites other than to say they are related to Akerre. Although he says that ‘no woman can go into many of those places including the most sacred places,’ Mr Doolan does not specify which of the sites are subject to those restrictions. The native title party also seeks to rely on a passage written by the anthropologist TGH Strehlow which mentions the Akerre sites; however, I do not consider the passage adds a great deal to my assessment of the sites’ particular significance to the native title holders.

[39]The native title party contends that the Tribunal has previously found that dreaming tracks can be regarded as areas or sites of particular significance. Although the Tribunal has made findings of this nature in the past, whether such a finding is appropriate will depend on the specific evidence before the Tribunal. As the native title party notes, the Tribunal has found it appropriate in previous matters to draw a distinction between dreaming tracks and songlines which might be deemed to be generally significant and sites that could be regarded as manifestations of the specific activities of mythic beings and therefore of particular significance to the native title holders (see WF v Emergent Resource at [39]). While that distinction may not be relevant in every case, the evidence still needs to support the particular significance of the dreaming track (or at least, the relevant part of the track) as opposed to other features associated with it. In my view, the evidence does not support the particular significance of the various dreaming tracks as distinct from the specific sites mentioned in the affidavit material.

[40]Two other sites which are described in the affidavit evidence but do not appear on the AAPA map are Alkitjulka and Ijuntu. In relation to Alkitjulka, the Territory says it is relevant to note that Ms Matasia and Ms Doolan had not been to the site in many years and the woman who accompanied them on their trip to the site in March 2017 had never been to the site. The Territory says it is also relevant that no information has been provided as to how often and by whom the site is used for taking ochre or when it was last used for that purpose. In my view, these considerations do not necessarily diminish the site’s significance under traditional law and custom, which is supported by the fact that traditional restrictions on access by men still apply and are apparently observed by members of the native title party.    

[41]The Territory queries why, in light of these restrictions, a male lawyer was permitted to accompany Ms Matasia and Ms Doolan on their visit to the site and take photographs of the women and the area. In her affidavit, Ms Matasia states that men would not normally be allowed to visit the site but she allowed the lawyer to go ‘because of his job to help us record important information about Alkitjulka.’ Ms Doolan also states that she and Ms Matasia agreed that it was okay for the lawyer to go to the site because he is a non-Aboriginal man who had not been through the law and was helping them to document the site. I accept that the lawyer was only permitted to visit the site with the consent of Ms Matasia and Ms Doolan, who are both senior law women, for the specific purpose of documenting the site. In my view, this does not detract from the particular significance of the site.

[42]In relation to Ijuntu, the Territory contends that the evidence does not support a finding that the place is a site of particular significance. The native title party has not made any specific contentions in relation to the site, however I note that Ms Matasia states that Ijuntu is also a sacred site but not secret or as powerful as Alkitjulka. Similarly, Ms Doolan states that Ijuntu is different to Alkitjulka because there are no restrictions on access, though people ‘still have to obey the rules.’ Although the evidence of Ms Matasia and Ms Doolan indicates that Ijuntu is a sacred site, I do not consider that it establishes the site’s particular significance in accordance with the traditions of the native title party.     

[43]In conclusion, I find the evidence supports a finding that the following are areas or sites of particular significance according to the traditions of the native title party:     

(a)Ngaru Ngaru (AAPA 5846-003)

(b)Mingantju (AAPA 5846-001)

(c)Arleyernpe (AAPA 5846-023)

(d)Walawuru Manngu (AAPA 5947-001)

(e)Akerre (AAPA 5846-027)

(f)Pwerthenhatherre (AAPA 6048-002)

(g)Alkitjulka

Is there a risk of interference with areas or sites of particular significance?

[44]The native title party contend that the grant of the mineral authorities and the exercise by Tri-Star of the rights conferred by the mineral authorities will interfere with areas or sites of particular significance to the native title holders. They contend that the nature of the sites is such that they are not readily identifiable by people who are not members of the claim group, meaning that inadvertent interference is distinctly possible if Tri-Star enters the area without guidance from the native title holders. They also submit that the nature and number of sites within and around the mineral authorities will increase the likelihood of interference, particularly in light of the proposed activities.

[45]Tri-Star contends that, should the mineral authorities proceed to grant subject to the proposed conditions, it will be required to consult with the native title party as contemplated by paragraph 6 of the Second Schedule conditions. Tri-Star says there have been initial discussions with the native title party in respect of a broader project agreement and its intends to progress those discussions. It contends that ground disturbing activities can be conducted in a way which will not adversely impact areas or sites of particular significance and submits that the legislative framework in the Northern Territory provides requisite protection to any sacred sites in the tenement areas. The Territory contends that the Tribunal is entitled to give considerable weight to the site protection regime and the conditions that DPIR intends to impose on the grant of the mineral authorities.

[46]The Sacred Sites Act applies to all sites that are ‘sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.’ Any site that meets this description is protected under the legislation, whether or not the site has been registered (see Silver v Northern Territory at [96]). These protections include: a prohibition on entering or remaining on sacred sites (s 33); a prohibition on carrying out works on sacred sites (s 34); and prohibition on desecrating sacred sites (s 35). It is also an offence under s 69(1) of the Land Rights Act to enter or remain on a sacred site. Substantial penalties are imposed for the breach of these provisions.

[47]The Sacred Sites Act also provides a mechanism by which a person proposing to carry out work on land can apply for a certificate from the AAPA, also known as an Authority Certificate. The effect of an Authority Certificate is to authorise the person to enter and remain on the land on which the work is proposed and do such things as are reasonably necessary for carrying out that work or making use of the land. Once the AAPA receives an application, it must consult with the custodians of any sacred sites on or in the vicinity of the land to which the application relates that are likely to be affected by the proposed work or use (s 19F). The applicant may also request the AAPA to arrange a conference between the applicant and the custodians regarding the application or the terms or conditions of the Authority Certificate (s 19G).

[48]Tri-Star says it intends to obtain certificates from the AAPA and the Territory notes that the company will be under a legislative obligation to do so under its work plan. The AAPA may only issue the Authority Certificate if the proposed work or use can proceed without a substantive risk of damage to or interference with a sacred site on or the vicinity of the land, or where an agreement has been reached between the custodians and the applicant (s 22(1)). Penalties apply where a person contravenes or fails to comply with the conditions on which an Authority Certificate is issued and where the contravention or failure causes damage to a sacred site or distress to a custodian (s 37).

[49]The native title party accept that the Tribunal is entitled to give significant weight to the operation of the site protection regime. However, they say the Tribunal must consider in each case whether the existence of the regulatory regime will mean that interference is unlikely to occur (citing the Tribunal’s decision in Western Desert Lands v Teck Australia at [114]). I agree on the need to consider the particular circumstances of each matter and determine whether the protective regime will sufficiently minimise the risk of interference with areas or sites of particular significance. But in the present case, the native title party has not identified in what way the protective regime is unlikely to prevent interference with sites of significance in the tenement areas. While several of the sites identified have restrictions on access, I note there are offences under the Sacred Sites Act and the Land Rights Act for entering or remaining on sacred sites.

[50]It is a defence to a prosecution under the Sacred Sites Act if it is proved the defendant had no reasonable grounds for suspecting the sacred site was a sacred site (s 36(1)). The Territory notes that DPIR’s policy is to issue a letter to the grantee party on the grant of the tenement directing its attention to the provisions of the Sacred Sites Act and the Land Rights Act. With the exception of Alkitjulka, each of the sites identified as sites of particular significance are on the AAPA register and, in the case of Alkitjulka, the native title party has identified the site by way of geospatial coordinates. Although Tri-Star may need to consult with the native title party to ascertain the extent of the site, I accept that the defence in s 36(1) is unlikely to be available to them.

[51]The Territory also proposes to grant the mineral authorities subject to a range of conditions designed to minimise the risk of interference with sites of significance to the native title holders, specifically:

·Condition 4 of Schedule 1, which requires the holder of a mineral authority to comply with any requirement under a law in force in the Territory in relation to the use of land, including the Sacred Sites Act, the Land Rights Act and the Heritage Act;

·Condition 1 of Schedule 2, which requires the holder to carry out its proposed work program in such a way as to minimise any impact on the native title party’s native title rights and interests, in particular by avoiding interference with areas or sites of particular significance to the native title holders;

·Condition 6 of Schedule 2, which requires the holder to convene a meeting with the native title party before undertaking any exploration activities other than reconnaissance and to have regard to any representations made during the meeting, including in relation to access;

·Condition 7 of Schedule 2, which requires the holder to instruct all exploration personnel, contractors and agents of the necessity to protect sacred sites and other significant archaeological sites and structures within the tenement areas; and

·Condition 8 of Schedule 2, which requires the holder to consult with the AAPA and inspect the Register of Sacred Sites prior to carrying out any work in the tenement areas.

[52]I also note that Condition 25 of Schedule 2 sets out a mechanism by which the native title party can make a written complaint to the Minister where exploration activities are being conducted in a manner that adversely affects native title rights and interests in the tenement areas.

[53]There is no evidence to suggest that Tri-Star will not comply with the conditions on which the mineral authorities are to be granted or its other legislative obligations in relation to sacred sites. In addition to obtaining Authority Certificates from the AAPA, Tri-Star’s work program contemplates ongoing negotiations with the Central Land Council and landholders. Tri-Star states that it has been engaged with the native title party in relation to negotiating a broader project agreement and it intends to continue pursuing those negotiations. Tri-Star says it is aware of the existence of sacred sites in the tenement areas and of its legal obligations in respect of those sites and its plans to work with the native title party to manage the impact of the proposed exploration in accordance with the conditions of grant.

[54]Taking into account the nature of the sites, the protection regime and conditions of grant, and Tri-Star’s intentions with respect to the work program and heritage protection, I am satisfied there is no real risk of interference with areas or sites of particular significance within or in the vicinity of the tenement areas.    

Major disturbance to land and waters: s 237(c)

[55]Section 237(c) requires me to consider whether the grant of the mineral authorities or the exercise of rights created under the mineral authorities is likely to involve major disturbance to any of the land or waters concerned. Whether something constitutes a ‘major disturbance’ is evaluated by reference to the ordinary meaning of the phrase as understood by the whole Australian community, although the concerns of the Aboriginal community will be particularly relevant to that assessment (see Little v Oriole Resources at [52]-[54], referring to Dann v Western Australia at 395, 401 and 413).

[56]The native title party states that it does not intend to pursue the objections in relation to s 237(c). No party has made any specific contentions on whether the grant of the mineral authorities or the exercise of rights created under the mineral authorities is likely to involve major disturbance.

[57]I note that the proposed conditions will require the grantee party to obtain a valid authorisation under the Mining Management Act before carrying out any exploration activities or works that will involve substantial disturbance of the mining site (s 35 of the Mining Management Act defines ‘substantial disturbance’ broadly to include land clearing, earthworks, the establishment of seismic lines and drills pads, and the construction of work camps). The conditions also require the grantee party to carry out its activities in such a way as to minimise disturbance to the environment and meet with the native title party to explain their exploration activities.

[58]Tri-Star’s work program suggests it does not intend to undertake any bulk sampling or earthworks at least in the first two years, though it does intend to carry out targeted drilling. The Tribunal has generally found that exploration activities will not ordinarily constitute a major disturbance. The only notable environmental or geological features which appear from the evidence are two claypans that are registered as Aboriginal archaeological sites. I am satisfied those sites are avoidable and will be protected under the Heritage Act 2011 (NT). I also note the tenement areas have been previously subject to exploration tenure and pastoral leasehold and it is unlikely that any disturbance to the land will be of any greater significance than the previous and existing use of the land.

[59]Having regard to the nature of the proposed exploration activities, the conditions of grant, and the previous and existing land use, I am satisfied there is no real risk of major disturbance to the land or waters concerned.

Determination

[60]The determination of the Tribunal is that the grant of the mineral authorities listed in Schedule 1 are acts attracting the expedited procedure.

Mr JR McNamara
Member
24 July 2017

SCHEDULE 1: SUBJECT FUTURE ACTS

Tenement Number	Notification Day	Grantee Party
MA31359	24 August 2016	Tri-Star Energy Company
MA31360	24 August 2016	Tri-Star Energy Company
MA31361	24 August 2016	Tri-Star Energy Company
MA31362	24 August 2016	Tri-Star Energy Company
MA31363	24 August 2016	Tri-Star Energy Company
MA31364	24 August 2016	Tri-Star Energy Company
MA31365	24 August 2016	Tri-Star Energy Company
MA31366	24 August 2016	Tri-Star Energy Company
MA31367	24 August 2016	Tri-Star Energy Company
MA31368	24 August 2016	Tri-Star Energy Company
MA31369	24 August 2016	Tri-Star Energy Company
MA31370	24 August 2016	Tri-Star Energy Company
MA31371	24 August 2016	Tri-Star Energy Company
MA31372	24 August 2016	Tri-Star Energy Company
MA31373	24 August 2016	Tri-Star Energy Company
MA31374	24 August 2016	Tri-Star Energy Company
MA31375	24 August 2016	Tri-Star Energy Company
MA31376	24 August 2016	Tri-Star Energy Company
MA31377	24 August 2016	Tri-Star Energy Company
MA31378	24 August 2016	Tri-Star Energy Company