Robert Mumu & Ors on behalf of Karinga Lakes v Territory Potash Pty Ltd - [2021] NNTTA 60

NATIONAL NATIVE TITLE TRIBUNAL

Robert Mumu & Ors on behalf of Karinga Lakes v Territory Potash Pty Ltd [2021] NNTTA 60 (19 October 2021)

Application No:

DO2020/0001, DO2020/0002, DO2020/0003

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Robert Mumu & Ors on behalf of Karinga Lakes (DC2020/001)

(native title party)

- and -

Territory Potash Pty Ltd

(grantee party)

- and -

Northern Territory of Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE.

Tribunal:	The Hon J A Dowsett AM, QC
Place:	Brisbane
Date:	19 October 2021

Catchwords:	Native Title — future act determination — expedited procedure — determination that the act is act attracting the expedited procedure — Northern Territory — exploration licences — Karinga Lakes system — exploration for potash or salts found in the lake waters – large tenement areas — section 237 of the Native Title Act 1993 (Cth) — no submissions concerning s 237(a) of the Native Title Act 1993 (Cth) — submissions concerning sites of particular significance under s 237(b) — submissions concerning major disturbance to land or waters per s 237(c) — restricted evidence - historical exploration — grantee party proposes “Pre-Feasibility” exploration and “Office Studies” — consideration of likely nature of exploration — single trench on Lake Miningere — evaporation pond — location of evaporation pond — potential use of other lakes — submissions by the native title applicant that the whole area is a site or area of particular significance — legislative regime — operation of the Mineral Titles Act 2010 (NT) and Mining Management Act 2001 (NT) — protections afforded by Northern Territory Aboriginal Sacred Sites Act 1989 (NT) — meaning of particular significance under s 237(b) of the Native Title Act 1993 (Cth) — consideration of s 237(b) in Attachment A — meaning of major disturbance under s 237(c) of the Native Title Act 1993 (Cth) – meaning of major earthworks — connection to s 237(c) of the Native Title Act 1993 (Cth) — determination that the acts do not involve a major disturbance to the land or waters concerned.
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3. Heritage Act 2011 (NT). Mineral Titles Act 2010 (NT) ss 11, 26, 27, 31, 83, 84, 105. Mining Management Act 2001 (NT) ss 4, 35, 36, 37, 38, 39, 40, 46. Native Title Act 1993 (Cth) ss 25, 29, 31, 32, 35, 237. Sacred Sites Act 1989 (NT) ss 3, 5, 22, 19F, 27, 30, 31, 32, 33, 34, 35, 36.
Cases:	Andrews v Exploration & Resource Development Pty Ltd [2002] NNTTA 170 Banjima People v State of Western Australia (No 2) (2013) 305 ALR 1 Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21 Dann v Western Australia (1997) 74 FCR 391 Kalman Murphy and others on behalf of Waturta v Piper Preston Pty Ltd [2020] NNTTA 74 Little v Oriole Resources Pty Ltd [2005] FCA 506 Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 Margarula v Northern Territory of Australia (2016) 338 ALR 464 Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 Robert Mumu & Others on behalf of Karinga Lakes v Territory Potash Pty Ltd [2020] NNTTA 66. Rosas v Northern Territory (2002) 169 FLR 330. Rosita Shaw & Others on behalf of Boorroola Moorrool Moorrool v Rand Mining Limited & Another [2020] NNTTA 51 Rubibi Community v Western Australia (No 7) [2006] FCA 459 Silver v Northern Territory (2006) 169 FLR 1. Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Lake Wells Exploration Pty Ltd [2019] NNTTA 116 Western Australia v Smith (2000) 163 FLR 32 Western Australia v Smith (2001) 108 FCR 442 Wilson v South Australia (No 4) [2020] FCA 1805. Yindjibarndi Aboriginal Corporation v Western Australia [2013] NNTTA 150.
Representative of the native title party:	Dante Mavec, Central Land Council.

Representative of the grantee party:

Bradly Torgan, Ward Keller Solicitors.

Representatives of the government party:

Stewart Bryson and Jennifer Laurence, Department of Primary Industry & Resources.

REASONS FOR DETERMINATION

Robert Mumu and others comprise the applicant (the “native title applicant”) for a determination by the Federal Court of Australia as to the existence of native title pursuant to the Native Title Act 1993 (the “Native Title Act”). The application (the “application”) was lodged on 13 February 2020 and has been accepted for registration. The persons on whose behalf the claim is made (the “native title claim group”) are identified in the application.
The Government of the Northern Territory (the “Territory”) proposes to grant (the “proposed grants”) to Territory Potash Pty Ltd (“Potash”) three exploration licences (the “proposed tenements”) pursuant to the Mineral Titles Act 2010 (NT) (the “MT Act”). The proposed tenements are described respectively as EL32249, EL32250 and EL32251. The proposed grants are future acts to which, pursuant to s 25 of the Native Title Act, subdiv P of pt 2, div 4 of that Act (“subdiv P”) applies. Potash will hold the proposed tenements and manage exploration activities on those tenements on behalf of joint venturers, Verdant Minerals Ltd (“Verdant”) and Parkway Minerals NL (“Parkway”). In the evidence, and in this determination, Verdant and Potash are frequently referred to interchangeably. My understanding is that until fairly recently, Verdant was carrying out all exploration. However Potash is now fulfilling that function.
Section 29(1) of the Native Title Act (which is to be found in subdiv P) required that the Territory give notice of the proposed grants, “in accordance with this section”. In this case, s 29(2) required that notice be given to any representative Aboriginal/Torres Strait Islander body and the Registrar of this Tribunal. Section 29(3) required public notice. Such notices were duly given. In the notices, the proposed grants are described as follows:
Nature of the act
The grant of the ELs under the Mineral Titles Act 2010 authorises the holder to explore for minerals and such operations and works as are necessary for that purpose including (but not limited to) geological survey, rock sampling, drilling, removal and testing of ore material or other substances for a term not exceeding 6 years and to seek renewal(s). The term sought is 6 years commencing from the date of grant.
The notices also state that:
The areas of land covered by the proposed grant are depicted on the maps on the attached copy of the newspaper advertisement.
The notices contain three relevant maps, relating to EL32249, EL32250 and EL32251 respectively.
Included in each notice is a statement pursuant to s 29(7) of the Native Title Act (the “expedited procedure statement”) to the effect that the Territory considers that the proposed grants attract the expedited procedure, a term which is defined in s 237 of the Native Title Act. On 1 April 2020 the native title applicant lodged an objection (the “objection”) pursuant to s 32(3), asserting that the proposed grants do not attract the expedited procedure. In the absence of such an objection, the Territory could lawfully have made the proposed grants without any requirement that the parties negotiate in good faith as is otherwise required by s 31 of the Native Title Act. Section 237 provides:
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.
Pursuant to s 32(4) of the Native Title Act, the Tribunal must determine whether the proposed grants attract the expedited procedure. On 31 July 2020 the native title applicant advised that it proposed to raise a “jurisdictional” issue. In effect, it asserted that the notices did not comply with the requirements of s 29 of the Native Title Act, and that the Tribunal could not exercise its jurisdiction pursuant to s 32(4). In reasons delivered on 30 October 2020, I held that the notices complied with the requirements of the Native Title Act. See my decision in Robert Mumu & Others on behalf of Karinga Lakes v Territory Potash Pty Ltd [2020] NNTTA 66.

the objection

In its objection, the native title applicant relied upon all three paragraphs of s 237. However, in its current contentions, it relies only upon ss 237(b) and 237(c).

claimed native title rights and interests

The native title rights and interests claimed by the native title applicant are described as follows:
1.   The native title rights and interests of the [native title claim group] are the non-exclusive rights possessed under and exercisable in accordance with their traditional laws and customs, being:

(a)     the right to access and travel over any part of the land and waters;
(b)    the right to live on the land, and for that purpose, to camp, erect shelters and other structures;
(c)     the right to access, take and use for any purpose the natural resources of the land and waters, and natural water on or in the land and waters;
(d)    the right to light fires for domestic purposes, but not for the clearance of vegetation;
(e)     the right to share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources;
(f)   the right to access and to maintain and protect sites and places on or in the land and waters that are important under traditional laws and customs;
(g)    the right to conduct and participate in the following activities on the land and waters:
(i)cultural activities;
(ii)ceremonies;
(iii)meetings;
(iv)cultural practices relating to birth and death including burial rites; and
(v)teaching the physical and spiritual attributes of sites and places on the land and waters that are important under traditional laws and customs;
(h)    the right to make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the [native title claim group] provided that the right does not extend to making any decision that purports to control the access of such persons to the determination area;
(i)   the right to be accompanied on the land and waters by persons who, though not [members of the native title claim group], are:
(i)people required by traditional law and custom for the performance of ceremonies or cultural activities on the land and waters;
(ii)people who have rights in relation to the land and waters according to the traditional laws and customs acknowledged by the native title holders;
(iii)people required by the native title holders to assist in, observe, or record traditional activities on the areas.
(j)   the right to conduct activities necessary to give effect to the rights referred to in (a) to (i) hereof.
2.   The rights and interests listed in paragraph 1 above existed and continue to exist in relation to the application area as a whole.
3.   The native title rights and interest claimed do not confer possession, occupation, use and enjoyment of the application area to the exclusion of all others.
4.   The [native title claim group] acknowledges that the native title rights and interests are subject to and exercisable in accordance with valid laws of the Northern Territory of Australia and the Commonwealth of Australia.
5.   The group or individual rights and interests comprising the native title are held by the individuals and members of family/kin groups who together comprise the native title claim group over the application area as a whole. However, the distribution of rights and interests within the group and in respect of different parts of the application area is governed by the claimants’ system of traditional laws and customs, including:
(a)     the particular association or associations that members of the native title claim group have with one or more parts of the application area;
(b)    the extent to which members of the native title claim group have asserted, and other members of the native title claim group have recognised, those associations; and
(c)     individual circumstances, including age, gender, knowledge, and physical and mental capacity.

tenure history

An exploration licence (“EL”) is granted pursuant to s 27 of the MT Act. Section 26 provides that such a licence grants to the holder:
·the right to occupy the relevant area;
·the exclusive right to conduct exploration for minerals in the area and other activities specified in s 31; and
·the exclusive right to apply for a mineral lease for all or part of the area.
Section 31 provides:
Authorised activities under an EL
(1)An EL gives the title holder the right to conduct activities in connection with exploration for minerals, including the following:
(a)digging pits, trenches and holes, and sinking bores and tunnels, in the title area;
(b)activities for ascertaining the quality, quantity or extent of ore or other material in the title area by drilling or other methods;
(c)the extraction and removal of samples of ore and other substances from the title area in amounts reasonably necessary for the evaluation of the potential for mining in the area.
(2)Despite subsection (1)(c), the title holder may remove larger samples of ore and other substances from the title area if the Minister:
(a)is satisfied it is appropriate in the circumstances to do so; and
(b)has authorised the removal.
These provisions appear in part 3, division 1 of the MT Act, headed “Mineral title for exploration for minerals”.
Until 2 August 2019, Potash held seven exploration licences (the “previous ELs”) over the area which will be the subject of the proposed grants. On 29 July 2019, Potash applied for ELRs 32206, 32207, 32208, 32209, 32210, 32211 and 32212. The previous ELs (from which the ELRs were derived) expired on 2 August 2019. On 2 September 2019, Potash applied for the proposed tenements. The total area covered by the proposed tenements is approximately 1,108.9 kms². The ELR application areas and the areas of the proposed tenements all fall within the areas of the seven previous ELs. The proposed tenements cover the areas of the ELR applications. The ELR applications are not otherwise relevant for present purposes. Potash asserts that the inclusion of the overall area in the proposed tenements will reduce the number of licences which it holds, better align its tenements with pastoral boundaries and align expenditure reporting periods. Potash further asserts that:
“No on-site exploration activity other than on-going (sic) rehabilitation is proposed in the applications because the JORC (Australasian Joint Ore Reserves Committee) reported resource was established under the prior exploration licences.”
JORC is an organisation which prescribes the way in which mineral resources and reserves are reported. Potash further asserts that:
“If further on-site activity occurs … it will be to determine whether it is economically feasible to extract the resource. Associated activity will be lesser in scope and intensity than [Potash’s] exploration activities upon the previous exploration licences.”
Potash points out that production activity will not be permitted under the proposed tenements. It asserts that no on-site exploration is presently proposed, the existence of a “brine resource” having been established. Nonetheless, Potash acknowledges that some exploration may occur. I deal with that matter below. The activities for the first two years of the stipulated terms of 6 years for each of the proposed tenements will involve expenditure on, “Pre Feasibility including Metallurgical and Environmental”, and “Office Studies”.

The area included in the proposed tenements

The three proposed tenements run from west to east, with EL32249 in the west, adjoining EL32250 to the east, and the latter adjoining EL32251, again to the east. From west to east, the total length of the three EL applications is in excess of 120 kms. The width from north to south varies between about 5 kms and about 15 kms. The boundaries are straight lines, indicating that they generally do not follow recognizable geographical features. A few areas within such boundaries are not subject to the proposed grants. The proposed grants will cover parts of three pastoral properties being, from west to east, “Curtin Springs”, “Lyndavale” and “Erldunda”.
The area is described in the evidence of Ms Julie-Ann Stoll, a consultant, now employed by Central Land Council. She holds degrees in geology and environmental studies in the University of Adelaide. For present purposes, the relevant paragraphs (footnotes omitted) are as follows:
Karinga Lakes
9.   The Karinga Lakes are also referred to as the Karinga Creek Paleodrainage System or Karinga Creek in the literature. This report adopts the term ‘Karinga Lakes’. It comprises a chain of dozens of saline lakes covering around 30,000 ha. The system is part of a much larger chain of salt lakes stretching around 500 kilometres across the southern part of the Northern Territory from the Finke River to Lake Hopkins in Western Australia referred to as the Central Australian Groundwater Discharge Zone (refer to Map 1). The Discharge Zone is a long valley which had large regional flows from a wetter period of geological history.
More arid times resulted in wind-blown sand dissecting the system and much lower rainfall in the catchment area draining into the system. The lakes are mainly dry but are inundated following heavy rainfall in the region and become significant wetlands. Water may stay in the lakes for months, gradually evaporating to become dry again.
10.    Inundation events in the area are uncommon and unpredictable. According to Duguid et al (2005), in a report to the Australian Government on the inventory and significance of wetlands in arid Northern Territory, “Some swamps fill relatively frequently, once or twice a decade, whilst others may only fill a few times in a century, such as the large salt lakes of the Karinga Creek System”. Verdant Minerals Limited reported that, “some of the lakes flooded in late 2010 and early 2011 due to above average rainfall”. A previous flood event was recorded in 1989 and “was supposedly a one in 50 year flood”. A rainfall event was recorded at Karinga Lakes in late 2016/early 2017. Lakes were inundated.
11.    Karinga Lakes are identified by the Northern Territory as a significant habitat for a number of important animal species and are a Site of Conservation Significance (SOCS). A total of sixty-seven SOCS sites have been identified in the Territory as the most important sites for biodiversity conservation that need further protecting. …
12.    The Karinga Lakes host sub-surface brines rich in potassium and magnesium which could be used for the production of fertiliser minerals.
Geology and hydrology
13.    The Karinga Lakes are located on the eastern part of the Lake Amadeus system. The geological structure across the Karinga Lakes the subject of ELAs 32249, 32250 and 32251 comprises weathered/fractured siltstone, probably mainly the Horseshoe Bend Shale or to a lesser extent the Idracowra Sandstone. The salt lakes have a thin veneer of lacustrine (formed in a lake) sediments with significant evaporate minerals (halite, gypsum) overlying the deeper sedimentary rock layers. The thickness of the lake sediments varies from a few centimetres to several metres.
14.    Sand dunes are interspersed with the lakes, which form the topographic low points. Low relief gypsum islands are common in some of the lakes, and groundwater calcrete deposits (continuous sheets or mounds of limestone formed at or near the surface resulting from high evaporation and periodic recharge of groundwater) are exposed intermittently at the surface. Escarpments on the margins of the lakes are formed by the Horseshoe Bend Shale rock unit. These are topped with calcrete and silcrete duricrusts (geochemical sediment forming a hard layer at or near the surface) which are hard and resistant to erosion. The shale is an evaporitic formation (rocks containing minerals formed by evaporation) with naturally leaching salts (salts are dissolved from the rocks into water during flooding and groundwater movement, contributing to the creation of brines which are further enriched through evaporation) which enrich the lakes’ brine. Freshwater and brackish springs are located on the edges of some lakes, associated with calcrete deposits.
15.    Figure 2 shows how the Central Australian Groundwater Discharge Zone functions, with rainfall from the Petermann and Newland Ranges to the south and west, and the George Gill and Seymour Ranges to the north west and north, percolating down to the groundwater acquifer. Groundwater combined with local runoff after extensive rainfall events at Karinga accumulates in the topographic low – the Karinga Lakes. Groundwater moves up through sediments and cracks in the rocks forming brines which are further enriched through intense solar evaporation.

At pages 31-43, Ms Stoll discusses various aspects of the lakes and surrounding environments. Where necessary, I shall otherwise refer to the report in the context of the parties’ contentions.

Some preliminary comments

In this matter, there is an unusually large volume of evidence, given that this is an application pursuant to s 32(4). The parties were told that given the volume of material provided, I would, generally, require that where they refer to documents, they give page or paragraph numbers. The parties seem, in some respects, not to have focussed clearly on ss 237(b) and 237(c). In some ways they seem to have treated this matter as if it were an application pursuant to s 35, rather than an application pursuant to s 32(4). The native title applicant has, to a significant extent, addressed the possibility of exploration and mining activity, going far beyond Potash’s intended activities, and the activities permitted by the proposed grants. Potash, on the other hand, attaches great significance to the fact that the proposed tenements will permit exploration, but not mining. None of the evidence has been tested by way of cross-examination. Whilst there is clear evidence going to the matters identified in s 237(b), it is not as focussed as one might have expected. Similarly, much of the evidence conceals, rather than clarifies the issues arising under s 237(c). It is unfortunate that the issues have not been more clearly identified or limited, particularly since the parties obviously consider this matter to be of considerable importance.
The extent of the documents is such that I should offer some preliminary description of them. They comprise:
·seven documents containing contentions;
·nine affidavits of which three contain restricted evidence; and
·other documents to which I refer in this determination.
In some cases, they are identified by reference to the tendering party. The native title applicant is referred to as “NTP”, Potash as “GP” and the Territory as “GVP” respectively. Such documents also have identifying numbers. For the sake of clarity, where documents are frequently referred to, short names are used.
Table 1 below is a list of the documents to which I refer.

Table 1

Document Type

Document Name

Contentions

1. Native title applicant’s primary contentions;

2. Native title applicant’s restricted contentions;

3. Native title applicant’s primary reply;

4. Native title applicant’s restricted reply;

5. Potash’s contentions;

6. The Territory’s primary contentions; and

7. The Territory’s restricted contentions.

Affidavits

1. Affidavit of John Garnaut Stanes dated 11 December 2020;

2. Affidavit of Dante Mavec dated 14 December 2020;

3. Affidavit of Zoe Neumayer dated 14 December 2020;

4. Restricted affidavit dated 25 November 2020;

5. Restricted affidavit dated 2 December 2020;

6. Restricted affidavit dated 14 December 2020;

7. Affidavit of Nigel Doyle dated 6 January 2021;

8. Affidavit of Bradly Torgan, dated 13 January 2020; and

9. Affidavit of Christopher Tziolis, dated 13 January 2020.

Other Documents by Type	Document Name	Short Name
Expert Report supplied by the native title applicant	Expert Report on potash exploration and environmental impacts on inland salt lakes with particular reference to the Karinga Lakes by Julie-Ann Stoll dated 15 December 2020	Stoll report
Document supplied by the native title applicant	Verdant Minerals Ltd, ‘Mining Management Plan for Karinga Creek Potash 2018’ dated 28 May 2018.	Verdant MMP
Document supplied by the native title applicant	Parkway Minerals, ‘Karinga Lakes Potash Project Pre-Feasibility Study (KLPP-PFS) Summary Report’ dated 5 November 2020.	PFS
Document supplied by the native title applicant	Ashley Severin, ‘Curtin Springs objection to EL 32249’ dated 5 January 2020.	NTP doc 7
Document supplied by the native title applicant	Diana James, ‘Tjukurpa Time’ in Ann McGrath and Mary Anne Jebb (eds) Long History, Deep Time: Deepening Histories of Place, Australian National University Press, 2015.	Dr James’s paper
Document supplied by Potash	Annexure 2, Correspondence from Northern Territory Government concerning Native Title Act 1993 (Cth) s 29 Notice dated 26 November 2019.	s 29 Notice
Document supplied by Potash	N.T. Evaporites Pty Ltd, ‘Annual Report for Exploration Licences’ for each of the years 1988-1989, 1989-1990, 1990-1991, and NT Evaporites Summary Exploration Report concerning 1988 to 1994 (dated their respective years).	GP5, GP6, GP7 and GP8 respectively
Document supplied by Potash	Northern Territory Evaporites Pty Ltd, ‘Exploration Report for Period 1^st July 96 – 30^th June 97’ (dated 1997).	GP11
Document supplied by Potash	Northern Territory Evaporites ‘Annual Exploration Report for Period 1/7/2000 to 30/6/2001’ (dated 2001).	GP13
Document supplied by Potash	Field Inspection Report dated August 2015.	2015 Report
Document supplied by The Territory	Template of Conditions for Exploration Licences.	first schedule conditions
Document supplied by The Territory	Template of Additional Conditions for Exploration Licences.	second schedule conditions

I should say that I have not attempted to standardize the spelling of non-English words. However I have attempted to avoid any confusion arising out of spelling variations.

Restricted evidence

The native title applicant has filed three affidavits which it has characterized as “restricted”, meaning that the content should not be disclosed to women or uninitiated Aboriginal men. They are affidavits numbered 4, 5 and 6 in Table 1. Potash and the Territory have accepted the evidence on that basis, as have I. The native title applicant and the Territory have advanced separate contentions concerning the restricted evidence, in addition to each party’s primary contentions. Potash has addressed the restricted evidence as part of its primary contentions. I shall deal with all of this restricted material in Attachment A to this determination.

native title applicant’s unrestricted evidence

The native title applicant initially filed three affidavits and Ms Stoll’s report. The affidavits of Dante Mavec and Zoe Neumayer are of limited significance. Mr Mavec’s affidavit seems to concern the execution of one of the restricted affidavits. Ms Neumayer’s affidavit relates primarily to dealings with Potash and its predecessor, Rum Jungle Resources Ltd, now Verdant, going back to the period between 2010 and 2015. I shall refer to these affidavits as appropriate.
The third affidavit is by John Garnaut Stanes, a pastoralist, who operates Lyndavale station, to which I have referred above. He says that the viability of his family business depends upon that part of the lake system which is located on his station. He says that the area is fragile, and that the lakes are sensitive to erosion, leading to the need for particular care in the conduct of his grazing business. He says that when the lakes are full, the aspect is beautiful, and that many types of bird are attracted. There are also thousands of shield shrimp in the freshwater parts of the lakes, and brine shrimp in the salt water parts of the lakes. Birds feed on these animals. Mr Stanes identifies other wildlife in the area.
Mr Stanes also makes various observations concerning rainfall events and other matters relating to the area. His family has been told by traditional custodians of the area (including members of the Mumu, Armstrong and Wongaway families) that a number of soaks lie to the south of the lakes, providing permanent drinking water for Aboriginal people. He has also been told that the lakes, including Miningere Lake, are rich in indigenous cultural heritage. There is an ochre hill in the area, the ochre being used by Aboriginal people for painting. That hill becomes an island when Pulcura Lake is full. Mr Stanes has seen bone fragments around Mygoora Lake and Miningere Lake. He believes that such fragments are from Aboriginal bush tucker. He has heard of fossils located to the west of Mygoora Lake. Mr Stanes says that it is important that his business be conducted in an environmentally sustainable manner. He believes that it is his family’s responsibility to consult with the traditional custodians in taking care of the lakes.
In about 2011 Mr Stanes first heard that there might be exploration activity in the area. He refers to various observations concerning Verdant’s operations and his dealings with that company. From about 2013, at his request, Verdant sent updates concerning its activities. Relations between Verdant’s employees and his family were initially friendly but subsequently, “started to sour”. He says that Verdant started drilling activity on his property in 2014 or 2015, initially without any notification to him or his family. Mr Stanes complains that his family did not receive sufficient notification or detail concerning Verdant’s exploration activities. He refers to various incidents which occurred thereafter, and to his concern that Verdant was not conducting itself in a professional manner, including in connection with its use of tracks and roads.
There was also disagreement concerning payment for road upgrades. Mr Stanes considers that at one point, there had been grading in an area where Aboriginal artefacts were located. He considers that Verdant’s operations caused “lots of erosion” and promoted the growth of weeds. In particular, he discovered, in 2019, a “rubber bush infestation”, which he attributes to the activities of Verdant’s employees. He also complains about Verdant’s use of his bores. He considers that Verdant’s rehabilitation activities were insufficient. At least some of his complaints are disputed.
Mr Stanes is concerned that Potash’s future activities may be of greater impact than has already been the case. He bases this opinion upon his understanding that it, “will want to progress”, its project. He is also concerned that continued activity will result in interference with his pastoral operation as a result of interference with water supply. He is concerned that pumping water for evaporation ponds may interfere with his bores. He is also concerned that exploration activities, “would disturb the fragile, unique nature of the lakes … their land systems and environment”. His views are based upon his familiarity with the area, and also upon Verdant’s past exploration activities. He says that Verdant was not as co-operative as were other companies which had conducted exploration activities in the area. He claims that stress caused by Verdant’s activities has impacted his family’s ability to run the business.
Other evidence demonstrates that prior to Verdant’s involvement, Mr Stanes was, himself, associated with exploration in the area of the proposed tenements. The circumstances of such involvement are unclear. It seems that earlier tenements were revoked for failure to exploit mineral resources. I deal with this matter elsewhere in this determination.
It is not practicable that I undertake a review of the various alleged disputes between Mr Stanes and Verdant. Some of his complaints are matters of opinion. Some involve isolated events. Some seem to be trivial. It is a reasonable summary of Mr Stanes’ evidence that he was not satisfied with the way in which Verdant conducted its exploration activities between about 2011 and perhaps, 2015 when, according to other evidence, drilling and trenching ceased, although some low level activity has continued.

Potash’s evidence

Potash has filed three affidavits. The first is by Bradly Torgan an attorney employed by Ward Keller, the solicitors acting for Potash. His evidence is of a formal nature and relates to the drafting of one of the other affidavits, that of Mr Tziolis. The third affidavit is by Nigel Doyle who is the exploration manager for Verdant. At para 5 of his affidavit, Mr Doyle identifies prior ground-disturbing activities by Verdant or Potash in the area under previous ELs as follows:
a.93 hand dug pits, from which samples were collected;
b.3 small backhoe trenches, and 4 excavator trenches for 30 day pump testing;
c.8 vibracore drill holes. Vibracoring is a mechanical drilling technique used to collect core samples from unconsolidated, loosely compacted materials by drilling with an electrically powered, vibrating head attached to a rigid core barrel. The drill holes are approximately 80mm in diameter, and ground disturbance around the drill is generally limited to a few square metres per hole;
d.73 sonic drill holes. Sonic drilling is a form of drilling which uses high frequency resonant energy generated inside a drill head to advance a core barrel or casing into a substance formation. The drill holes are approximately 75 mm in diameter;
e.200 aircore drill holes. Air core drilling uses blades and a small air compressor to bore a hole into unconsolidated ground. The drill holes are approximately 90mm in diameter;
f.11 reverse circulation drill holes. Reverse circulation drilling has many similarities to aircore drilling except that only chips of rocks are returned to the surface. The drill holes are approximately 140mm and 225mm in diameter;
g.installation of one hundred 50mm piezometers to monitor groundwater. 50mm refers to the diameter of the pipe that is part of each piezometer;
h.47 installed 100mm pumping test wells, with 1000mm referring to the diameter of the well casing. Ten of these were selected for step test pumping and 24 hour constant rate pumping in 2011;
i.the placement and removal of portable dongas; and
j.tracks created for site access, although the (sic) many of tracks used were pastoral station tracks.
At paras 6 and 7 Mr Doyle observes that:
6.In terms of disturbance, drill holes impact only around a few square metres around each hole. I estimate that the totality of [Potash’s] ground disturbance activity within the historic Exploration Licence areas, exclusive of tracks, is only approximately a few hectares.
7.All of [Potash’s] ground disturbing activity was done in accordance with Mining Management Plans approved by the Northern Territory Department of Primary Industry and Resources or its predecessor, the Department of Mines and Energy. Exploratory drilling and trenching ceased in 2015. [Potash] has undertaken no additional exploratory drilling or trenching since that time.
As paras 8 and 9 Mr Doyle asserts that there has been remediation or rehabilitation of the vast bulk of Potash’s exploration activity, and that only 34 drill holes remain. They are used to monitor sub-surface water levels. Potash has not generally rehabilitated tracks as they are still in use. However some tracks will be returning to “original conditions”. Some of the tracks are now being used by the pastoralists.
In March 2010, Mr Doyle was engaged in archaeological site surveys of the area, which area is the subject of the proposed grants. Before the first survey, he consulted with David Wongaway, a senior traditional owner of the area. However Mr Wongaway was unable to accompany him on the survey. Two elders from the Imanpa community, Eski (or Hesky) Anderson and Chooky Pumpjack did so. They were recommended by Mr Wongaway and other community members.
At the time of the survey, Mr Doyle was aware of a recorded sacred site in the vicinity of Mallee Well Lake. It lies in the western part of EL32249. His knowledge was based on a map showing sacred sites, dated 24 December 2009. The map was prepared for Verdant by the Aboriginal Areas Protection Authority (the “Authority”), established pursuant to s 5 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (the “NT ASS Act”). Mr Anderson and Mr Pumpjack confirmed that there was a “pinch point” at the northern end of the lake, which point was a sacred site. However it was “okay” to take samples from other areas of the lake. I shall return to this evidence throughout this determination.
During the survey Mr Doyle saw evidence of earlier activity on, or in the vicinity of Mallee Well Lake. In particular he saw an old road, crossing the eastern portion of the lake, another road along the south-eastern edge of the lake and an existing, open brine trench in the eastern part of the lake. He does not know by whom the trench was dug. However he is aware that exploration activity, including trenching had occurred in the area during the late 1980s and early 1990s, prior to the acquisition by Verdant of the then existing ELs over that area. The trench was consistent with its having been dug in exploring for brine. After the March 2010 survey, and over the next four months, 7 brine samples were dug with a shovel, taken from the lake, and submitted to a laboratory for assay.
In July 2010 Mr Doyle participated in another survey of the area. Prior to the survey he and other Verdant representatives consulted with traditional owners concerning the physical survey process and the heritage assessment. On that occasion Mr Wongaway was again unavailable. On the first day, Gary Mumu and Robert Mumu accompanied them to the central part of the project. On the second day, Michael Bulla and his two sons accompanied them to Curtin Springs and, in particular, to Mallee Well Lake. A number of other Aboriginal men from the Mumu and Bulla clans also attended that survey. As I understand it, Mr Wongaway and Mr Robert Mumu are members of the native title applicant.
Christopher Tziolis is the Chief Executive Officer of Potash. He was previously Director of Project Development with Verdant, of which company Potash is a wholly owned subsidiary. For over ten years Verdant and Potash have conducted exploration activities in the area of the proposed grants, resulting in an independent estimation of a “JORC potash brine resource”. This term is explained above. He said that during the application process, pastoral holders, whose land will be subject to the proposed tenements, sought additional information beyond that provided in the applications for the proposed grants. On or about 27 November 2019 Mr Tziolis directed correspondence to the leaseholders of Erldunda, Lyndavale and Curtin Springs properties, explaining the title rationalisation process being undertaken, and providing further information on expected activities. Copies of the relevant letters are attached to his affidavit.
Mr Tziolis is aware of a “Pre-Feasibility Study Summary Report” (the “PFS”) for the proposed tenements, released by Verdant’s joint venture partner in the project, Parkway. It appears to have been produced for the purposes of meeting stock exchange requirements. In that document Parkway recommends, but does not commit to progressing exploration activity, including preparation of a definitive feasibility study (a “DFS”). The purpose of such a study would be to create sufficient “definitional understanding” so as to define more accurately the capital and operating costs of the project and to, “convert the mineral resource into a reserve”. The term “mineral resource” refers to the quantity of resource identified in a pre-feasibility study. The term “reserve” refers to the quantity of resource that can be extracted in a financially and commercially feasible manner. A DFS is a study undertaken at a higher level of accuracy than a PFS. A DFS is used as the basis for raising finance to complete detailed design and construction of a project. Such a study would also assist Potash to confirm its “processing flowsheet” by mining a larger “volume pilot” on a continuous basis for a defined duration. Once such a process flowsheet is confirmed, Potash and the joint venturers would be able to approach vendors to provide more accurate budget pricing of equipment necessary for the project. Capital and operating costs could also be better estimated. Once these costs are understood, the reserve can be calculated with a greater degree of accuracy.

A DFS would also help to understand the impact of a rain event on re-charging the system. The project is not a mining project in the conventional sense. There is no open pit, or underground mining in which rock is dug up, and the mineral value extracted from it. This project would involve the harvest of hyper-saline water that lies in the aquifers beneath the salt lakes. The mineral to be extracted from the salts makes the water hyper-saline. Rain events can re-charge the system and may have an impact on the longevity of the resource, in that it will allow more salts, present in the host rocks and sediments, to be dissolved and stored under the lakes.
Preparation of a DFS would require limited further exploration activity as set out below. Such exploration activity would not involve construction of anything on the size or scale of the ultimate project, even relative to a single lake. Nor does such a study extract material from every lake which might eventually be involved in the project. That level of activity would not be technically necessary, or financially prudent. Potash would like to spend no more than 2 to 3 per cent of the estimated capital cost on a DFS. In Annexure CT-2 to his affidavit, the scope of work for any proposed DFS is described. It seems that no final decision has yet been made as to whether Potash will proceed with that study.
The study would comprise excavation and pumping of a trial trench on Miningere Lake. See para 2 under the heading “Scope”. Annexure CT-2 demonstrates, at paras 2.1-3.3, that such work will involve digging a single trench, about 1,000 metres in length, with a maximum depth of 7 metres, and a width of 6 to 7 metres. The pumping duration would be for a period of seven months. The extraction of 400,000m³ of brine would contain an estimated 2,800 tons of potassium. The brine would be piped to another lake for storage, about 1,200 metres to the north.Much of it will be re-absorbed into the groundwater so that mineralization will not be lost. The native title applicant challenges the width of the trench and associated exploration activity. I discuss this matter below.
Brine levels around the trench would be monitored by an “array” of piezometers at distances of, nominally, 20, 50, 100, 200 and 400 metres from the trench, there being a total of 26 piezometers. A piezometer measures, amongst other things, water depth. See the New Shorter Oxford English Dictionary. Each would be installed at a depth of 6 metres. Each piezometer’s annulus would be sealed to prevent the ingress of surface water.
A small portion of the brine would go to a trial evaporation pond, measuring about 18.5 metres by 81 metres, to enable potassium-rich salts to be derived for further off-site testing. The pond need not be built on a lake, as its base can be lined. Rehabilitation will occur in line with past rehabilitation activities, and in accordance with the Territory’s requirements. The evaporative process would eventually produce about 5 tonnes of potassium-enriched salts, the quantity necessary in order to guarantee efficacy of the production process. The salts would be processed off-site. The balance of the 2800 tons of potassium would presumably remain on site.
My understanding of the evidence concerning the current state of Potash’s operation is that a great deal of information has been accumulated. This material will be assessed during the terms of the proposed tenements. There may be a need for further trenching activity, limited to trenching on one lake, and evaporating water from an evaporation pond in order to obtain high quality minerals. The future exploration activity will be directed towards confirming currently available information by running a, “large volume pilot on a continuous basis for a defined duration”. From this information, equipment costing will be assessed. Such costing will be used in raising finance for the project. I understand Mr Tziolis’s evidence to indicate that Potash is moving towards a decision to seek investment in the project.
Mr Tziolis refers to correspondence with Ms Julie-Ann Stoll, apparently exchanged during earlier operations in 2014. The correspondence is of little present relevance.

The territory’s evidence

The Territory has provided a substantial volume of documentary evidence, but no affidavit evidence. As with much of the other evidence, I shall refer to the documentary evidence, as necessary, in considering the parties’ contentions.

Native title applincant’s contentions

The native title applicant summarizes its contentions at paras 15 and 16 as follows:
15. In relation to the criterion in s 237(b) of the Native Title Act:
(a)The whole of the area of the proposed tenements, other than the far western tip of EL32249, comprises an area of particular significance to the native title claimants, or alternatively the immediate vicinity of each of the salt lakes and other features identified in the restricted evidence comprise sites and/or areas of particular significance to the native title claimants.
(b)Mere access, or alternatively any level of physical disturbance, to the salt lakes and other features involves interference with the above area(s) or sites of particular significance within the proposed tenements, pursuant to the traditional laws and customs of the native title claimants.
(c)[Potash] has applied for the proposed tenements in order to carry out exploration activities and trial mining for potash. Within the proposed tenements, potash is only located on and in the salt lakes. [Potash’s] activities can only occur if there is access to and physical disturbance of the salt lakes.
(d)[Potash] is likely to physically disturb the salt lakes and therefore cause interference with the relevant area(s) or sites of particular significance because it has already done so in the course of exploration activities pursuant to the former tenements, and it intends to conduct further activities of a similar or greater magnitude.
(e)The [Territory’s] protective legislation is unlikely to prevent disturbance of these area(s) or sites because it has failed to date to prevent disturbance, and [Potash] is authorised by existing approvals to continue disturbance.
16. In relation to the criterion in s 237(c) of the Native Title Act:
(a)the grant of the proposed tenements, and the creation of rights by that grant, is likely to involve disturbance to the land and waters of the Karinga Lakes system;
(b)the Karinga Lakes system, including land and waters subject to the proposed tenements, is an area of high environmental importance, a Site of Conservation Significance according to the [Territory], which is beautiful, unique, and fragile;
(c)the nature of the activities likely to be conducted by [Potash] on the basis of the grant of the proposed tenements will involve advanced or intensive exploration activities, including ground disturbance, focused on key features of the Karinga Lakes system, namely a number of salt lakes;
(d)activities of this kind will disturb and deteriorate the environmental values of the Karinga Lakes system;
(e)the regulatory regime will not prevent such disturbance, which has been demonstrated by the regulatory regime’s failure to prevent such disturbance previously; and
(f)there will be significant effects on the local community, and in particular the other land users of the areas of the proposed tenements, who regard the disturbance as ‘significant’ and thereby ‘major’….
The native title applicant’s submissions must be considered in light of Potash’s intentions in connection with the proposed tenements and the terms of the proposed grants. The permitted activity is exploration, which may involve some extraction. However commercial mining cannot be undertaken. The native title applicant’s submissions seem to proceed on the basis that much more intensive activity will be undertaken. Potash’s position is that it may not necessarily carry out any further onsite exploration, but that it may carry out the work identified by Mr Tziolis in his affidavit. For reasons which appear below, I consider that Potash will likely carry out such activity. However it is relatively limited in scope.
To some extent, the native title applicant’s case reflects parts of Ms Stoll’s report. Her terms of reference appear at p. 3 of the report as follow:
1.Describe the main methods or processes generally used for exploration of salt lakes for potash. In relation to each method or process, describe any machinery used, and the nature and extent of disturbance of the natural environment involved.
2.Describe the extent to which the impacts of these forms of exploration are ordinarily rehabilitated, and the extent, if any, that they cannot be completely rehabilitated.
3.Describe the exploration activities which [Potash] has carried out on the Karinga Lakes system to date.
4.State your opinion as to what exploration activities are likely to be carried out by [Potash] if ELs 33249-51 are granted.
Ms Stoll deals with her terms of reference (“TOR”) 1 at pages 12-21. Whilst Ms Stoll provides a comprehensive response to TOR 1, it assumes a level of exploration going well beyond the evidence as to any likely further exploration activity. See the reference to production trenches, “several kilometres in length” and para 34. There is no suggestion that the proposed future exploration will require such infrastructure.
TOR 3 is dealt with at pp 21-25. Ms Stoll’s treatment goes beyond the activities undertaken by Verdant and Potash between 2010 and the present time. See particularly para 35. The extent of Verdant’s activities are set out at paras 37 and 38. The extent of such activity tends to support Mr Tziolis’s assertion that the proposed future exploration activity will be significantly less than the activities undertaken between 2010 and 2015.
TOR 4 is dealt with at pp 26-31. It is difficult to understand how Ms Stoll could be expected to predict Potash’s future conduct. Paragraph 47 is speculative and is of little relevance in view of Mr Tziolis’s evidence.
TOR 2 is dealt with at pp 31-42 of the report. I shall dealt with these matters when I consider the native title applicant’s contentions.
Ms Stoll’s report is dated 15 December 2020. Potash’s affidavits are all dated January, 2021. Hence the report was probably prepared without knowledge of the nature and extent of Potash’s proposed activities. Such assumptions must be seen in the light of that evidence, particularly that of Mr Tziolis.
The native title applicant points out at paras 22-24, that one might have expected some clearer evidence concerning the likelihood of further “on country” exploration, given the six year terms of the proposed tenements. However Mr Tziolis is quite clear as to the proposed limits of future exploration. I have explained my understanding of his evidence above. Paragraphs 29 and 30 of the native title applicant’s contentions are difficult to follow. The first two sentences reflect Potash’s intentions. These paragraphs otherwise seem to be of no real relevance.
At para 31, the native title applicant speaks of “evaporation ponds” being part of the “trial mining”. The term “trial mining” is used, in some places, by Parkway and Ms Stoll. However the term should not be misunderstood. In the current context, it describes the limited exploration identified by Mr Tziolis. The reference to “evaporation ponds” glosses Mr Tzilois’s reference to a “trial evaporation pond”. The PFS refers to “ponds”. However the author was simply pointing out that the proposed activity would offer an opportunity to test pond performance and stockpiling within ponds in the production phase. I do not understand the proposition to mean that the proposed future exploration activity would involve more than one such pond.
At paras 32-33 the native title applicant contends that according to Ms Stoll, the exploration will involve significant infrastructure, including a camp, power generator and expansion of the track system. However it is clear from paras 47-50 of Ms Stoll’s report, that her predictions as to Potash’s intentions do not coincide with Mr Tziolis’s evidence. As to para 34, I do not accept the broad assertion as to Potash’s future conduct. No doubt it will monitor its rehabilitation work and maintain piezometers and drill collars, as well as undertaking further exploration activities for the purposes of the proposed DFS.
Paragraph 35 overstates the evidence. Verdant undoubtedly carried out exploration activities between 2010 and 2015. However the PFS limits the eventual mining operation to the exploitation of 8 named lakes over a period of 20 years although, at para 1.2.3 under the heading “Sulphate of Potash Resource and Production Plan”, it is suggested that at some stage, there might be recourse to other lakes. None of this relates to the exploration work to be undertaken pursuant to the proposed grants as identified by Mr Tziolis. He makes it clear that any further exploration pursuant to the proposed grants will focus on one lake.
At para 36, the native title applicant asserts that Potash is likely, pursuant to the proposed tenements, “to engage in disturbance of a significantly higher degree under the proposed tenements, involving large scale trenching, evaporation ponds and expanded access tracks and other infrastructure”. These assertions pay no attention to Mr Tziolis’s statement concerning Potash’s intentions. Those intentions limit exploration activity within a very limited area, as opposed to earlier exploration over a much wider area.
At paras 37-40, the native title applicant makes general submissions concerning s 237(b). I shall deal with those matters at a later stage. At para 41, the native title applicant asserts that the whole of the area of the proposed tenements (with one small exception) comprises an area of particular significance for the purposes of s 237(b). Alternatively, it submits that, “the immediate vicinity of each of the salt lakes and other features identified in the restricted evidence comprise sites and/or areas of particular significance”. At para 42 the native title applicant asserts that mere access to, or any level of disturbance of the salt lakes and other features will cause interference for the purposes of s 237(b). These rather wide assertions are said to be based upon the restricted evidence. At paras 44-48 the native title applicant contends that under traditional law and custom, access is permissible only in accordance with particular protocols. It further submits that access to, and physical disturbance to the lakes have already occurred, pursuant to earlier tenements. The native title applicant again asserts that future exploration activity will involve a greater degree of disturbance.
At paras 49-70 the native title applicant addresses the operation of the NT ASS Act. The long title of that legislation suggests that it is designed to, “effect a practical balance”, between the need to protect Aboriginal cultural traditions, and the aspirations of the Aboriginal and all other peoples of the Territory for economic, cultural and social advancement. It establishes procedures for the protection and registration of sacred sites, regulation of entry to such sites, the imposition of conditions of entry and the avoidance of sacred sites in the development and use of land. The term “sacred site” has the meaning attributed to it in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the “Land Rights Act”). Pursuant to s 3 of the Land Rights Act, the term means:
a site 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 Aboriginals or of significance according to Aboriginal tradition.
The NT ASS Act prohibits certain activities concerning sacred sites. See ss 33-36. However such prohibitions may not apply to a person who holds and complies with an authority certificate issued pursuant to part III, division 1 of the Act. Section 22 provides:
22 Authority Certificate
(1) The Authority shall, where it is satisfied that, in relation to an application under section 19B:
(a)the work or use of the land could proceed or be made without there being a substantive risk of damage to or interference with a sacred site on or in the vicinity of the land; or
(b)an agreement has been reached between the custodians and the applicant,
issue an Authority Certificate to the applicant (which, in the case where an agreement referred to in paragraph (b) has been reached, is in accordance with the agreement):
(c)describing the part or parts of the land on which the work proposed in the application may be carried out or use made (or on which the work may not be carried out or use made, as the case may be) with sufficient particularity to enable the land and part or parts to be identified; and
(d)setting out the conditions, if any, on which under this Act the work may be carried out or use made as the Authority thinks accords with the custodians’ wishes or, if an agreement has been reached between the custodians and the applicant, accords with that agreement.
The Minister may review a decision concerning an application for such a certificate. The native title applicant asserts that Potash will be entitled to carry on most of its planned activities under existing authority certificates. Potash accepts that it intends to do so. The native title applicant implies that in the event of ministerial review, political considerations may outweigh protection of sacred sites. I see no basis for concluding that the Minister in question would be other than conscientious, having due regard to the purpose of the legislation.
The native title applicant then refers to the “second schedule conditions”, which conditions are likely to be imposed upon the proposed grants, pursuant to the MT Act. It submits that conditions 1 and 2 require only minimization of impact or disturbance. It also points out that condition 6 requires only that Potash, “have regard” to, representations by the native title claim group, and that condition 8 requires only consultation with the Authority, and inspection of the register of sacred sites, the contents of which register may not be comprehensive. The native title party submits that the term “sacred site” may not include an “area”, as opposed to a “site”, a submission with which I have some difficulty. The native title applicant is also concerned that the Authority has a wide discretion in enforcing the NT ASS Act. In effect, the native title applicant is particularly concerned by the fact that Potash already has the benefit of relevant certificates. I accept that the existence of such certificates is a relevant matter in considering the operation of s 237(b).
The native title applicant also submits that Verdant has previously failed to meet with the native title claim group and Central Land Council, as required by second schedule condition 6. The complaint seems to relate to events between 2010 and 2015. Such historical events are unlikely to offer a reliable guide to future conduct, given Potash’s clear interest in eventually obtaining appropriate mining tenures. Further, second schedule condition 6 requires only consultation with, “registered native title claimants or holders”, not with a representative body, although notice of the meeting must be given to any such body. Pastoral lessees or land holders may also be invited. Ms Neumayer, in her affidavit, said that on 27 August 2014, Mr Tziolis had indicated that Verdant had chosen not to engage with the Central Land Council and, “had limited direct engagement with the traditional owners”. One could spend much time in analysing the evidence concerning the absence of meetings between 2010 and 2014. It is sufficient to say that the parties seem not to have engaged actively in connection with exploration of the area, and that, at some stage, the Central Land Council tried to facilitate meetings. As is discussed elsewhere in these reasons, it seems that at an early stage, the native title claim group was not a registered native title claimant or holder as contemplated by condition 6.

The native title applicant also asserts that Verdant conducted brine sampling works in May and July 2010, in the area of an identified sacred site referred to as “site 5247-5”, prior to the grant of the relevant authority certificates. Those certificates, when issued, provided that no work take place on that site. However the native title applicant concedes that it does not know whether that site had been recorded prior to the occurrence of such work. The matter therefore lacks relevance.
The native title applicant submits that it cannot be assumed that the authority certificate regime will operate effectively to protect sacred sites, particularly as, in such remote areas, detection of infringing conduct may pass unnoticed. I do not accept that infringing conduct will pass unnoticed, given the Aboriginal community’s presence at Imanpa and the concerns of the local graziers in connection with the project.
At paras 65-70 of its contentions, the native title applicant asserts that there is little likelihood of the parties agreeing as to matters relating to Potash’s exploration activities, in the absence of any legal obligation upon Potash to negotiate. The native title applicant seems to suggest that the Tribunal should take into account, for the purposes of s 237(b), the view that any compulsory negotiation will only occur if the proposed grants attract the expedited procedure. It is not for the Tribunal to assess the value of compulsory negotiation, or to form a view as to the appropriateness or otherwise of there being such negotiation. The Tribunal’s task is to determine whether any of the conditions identified in s 237 is satisfied. In any event, the submission does not take into account the fact that as a result of previous exploration, Potash now has a significant interest in the area, in that future mining is likely, and that it will have to obtain appropriate mining tenements. In those circumstances, it may be in Potash’s interests to foster good relations with the native title claim group.
In connection with s 237(b), the native title applicant seems to assert that my reasoning in Robert Mumu & Ors v Territory Potash Pty Ltd (referred to above), has some relevance. In that decision I held that the s 29 notices relating to the proposed grants were valid, notwithstanding the fact that Potash would acquire certain personal rights under s 83 of the MT Act as a result of such grants. The rights in question would permit the use of land, other than that which is the subject of the proposed grants, in order to facilitate travel from a road, railway line, airstrip or waterway to the proposed tenements. I held that although such statutory provisions might confer personal rights on Potash, those rights would not apply to any land, at least not until Potash sought to exercise rights over such land. The present question does not concern the validity of the s 29 notices.
At para 73, the native title applicant seems to submit that it follows from my reasoning that the said personal rights, conferred by s 83 of the MT Act, if exercised, would be, rights, “in respect of the proposed tenements”. It is further said that the proposed grants, if made, would “enliven” the right to apply for an access authority under s 84 of the MT Act (a provision which was not relevant to my earlier decision). It is then submitted that if rights under s 83 or s 84 were to come into existence after, “the future acts are done” (ie, the proposed grants are made), it would be, in some way, inconsistent with my view that, “the s 83 right is not a component of the future acts themselves”. At paras 75 and 76 it is then asserted that:
75. This is so notwithstanding that the grant of an access authority under s 84 Mineral Titles Act involves a further future act, because it is the grant of the proposed tenements which gives rise to an entitlement to apply for an access authority under s 84 in respect of those ELs.
76. The Tribunal is therefore, given [my decision] at [47] and Little, to take into account under s 237(c) activities which the Proposed Grantee is likely to undertake in reliance upon its understanding of its rights under ss 83 and 84 Mineral Titles Act, including access to and from the title areas of the proposed tenements.
I am not sure that I understand this submission. However it seems to be premised upon the assumption that any land to which s 83 or s 84 of the MT Act might apply is, “land or waters concerned” for the purposes of s 237(c), notwithstanding the fact that it is not referred to in the s 29 notices. Further, such land was probably not identifiable as such at the time of the s 29 notices, and probably will not be identifiable at the time of any grant.The native title applicant has made no attempt to identify any such land. Neither s 83 nor s 84 in anyway affects the land referred to in the s 29 notice, which land is, in my view, the land or waters “concerned” in the proposed grants for the purposes of s 237(c) or, for that matter, s 237(b). Section 83 might, at some future time, affect land over which access is required, but it will not affect the proposed tenements. Similarly the “right” to apply for access authority under s 84 would not affect the proposed tenements. Sections 83 and 84 are not presently relevant. Put simply, s 237 is part of the expedited procedure prescribed by ss 29 and 32 of the Native Title Act. When s 237 is read in conjunction with s 32, it is clear that the reference to the “land or waters concerned” in s 237 is to the land or waters, the subject of the s 29 notice and of the proposed grants. There is no basis for asserting that any possible future exercise of s 83 or s 84 rights would cause major disturbance to such land or waters.
I shall deal with s 237(b) in more detail in Attachment A.
As to s 237(c) the native title applicant makes detailed submissions concerning the likely impact of the proposed grants upon the area in question. It submits that a major disturbance is something akin to a “significant” disturbance. It is rarely wise to substitute words for those adopted in the relevant legislation. It is submitted that the likely duration of a disturbance may indicate that such disturbance is major, and that a major disturbance need not be permanent. Any such assessment requires a value judgment, assessed from the point of view of the Australian community generally, including local people. This may include the views of an Aboriginal community and/or native title claimants or holders.
At para 81 of its contentions, the native title applicant contends that:
The proposed grants, or the exercise of rights created by the proposed grants, is likely to involve disturbance to the land and waters concerned in the form of physical disturbances to land and waters which fall into the following categories:
(a)        disturbance to the salt crust of the lakes;
(b)        disturbances to water resources;
(c)        erosion;
(d)        disturbances to vegetation and from weeds;
(e)        disturbances to fauna; and
(f)        access around, and to and from, the title areas.
These matters are addressed at paras 82-110 of the native title applicant’s contentions. I note that the above passage refers to disturbance rather than “major disturbance”. However, at paras 111 and 112, the native title applicant addresses various aspects of the “impact” of the proposed exploration activities upon the above matters separately, and then considers whether the relevant disturbance is “major”. The disturbance in question must be to land or waters concerned.

the salt crust

If the proposed trenching at Miningere Lake occurs, there will be one trench, 1 km in length. The native title applicant’s concern about the salt crust appears to be largely aesthetic, although there are generalized assertions concerning possible surface water flow, impact on fauna and vegetation and increased risk of acidic soil. The native title applicant relies upon Ms Stoll’s report at paras 60-63. However at para 62, Ms Stoll says that in exploration activity, samples would remain on the surface for limited time, so that acidity would be neutralized by other chemicals in the area. At para 63, she suggests that so called “trial mining” may involve more extensive trenching, even for many kilometres, increasing the risk of acidity. In this regard Ms Stoll was apparently not aware of the intended limitations upon the extent of any trenching.
It seems that any disturbance of the salt crust will be rehabilitated in time, although there may be a delay, depending upon rainfall. Any new crust may have a different colour from that of surrounding areas, at least in the short term. See Ms Stoll’s report at para 56. Some variations in colour can be seen in photographs 4, 5 and 7 in that report. To the extent that I am able to draw inferences from such photographs, it seems to me that the fear of visual disturbance is somewhat exaggerated, given the area of the proposed tenements, the very large number of lakes located therein and the very limited extent of the trenching activity.

Water Resources

As to disturbance of water resources, for present purposes, I accept that activity in one part of the proposed tenements may affect other parts of the lake system. I also accept, for present purposes, that in, or near to the proposed tenements, there are sources of fresh water used, from time to time, by Aboriginal people. However it is not clear to me that such matters demonstrate the likelihood of major disturbance. The real thrust of the native title applicant’s contentions seems to be the evidence of Lyndavale and Curtin Springs pastoralists concerning their prior dealings with Verdant. That evidence does not withstand close examination. Mr Stanes complains that in March 2014, Verdant accessed his bore water and left the tank empty. He complained to Mr Doyle who seems not to have accepted that Verdant was responsible for any such event. The taking of water to fill the tank was presumably carried out by Mr Stanes, not Verdant. See annexure JGS13 to Mr Stanes’ affidavit. In October 2015 Mr Stanes expressed concern about future water security (annexure JGS8 to his affidavit), but there is no reference to any specific conduct by Verdant. As to Curtin Springs, the native title applicant seems to rely on an objection (NTP doc 7) dated 25 December 2019 by Mr Severin, the pastoralist at that property. The objection was to the grant of EL32249. At p. 2 of the objection, Mr Severin expresses concern about his water supply, but he does not assert that such supply has ever been disrupted. Although the native title applicant asserts that there will be disturbance to water supply, there is no historical basis for such concern.

Erosion

As to erosion, the native title applicant seems to rely primarily upon Mr Stanes’ evidence and that of Ms Stoll. It seems unlikely that the track system will be significantly extended during the proposed exploration activity, given the limited area and the apparent extent of existing tracks. Traffic on existing tracks is unlikely to be as heavy as in earlier exploration. At paras 36 Mr Stanes says that he saw “lots of erosion” when Verdant built new roads. He says that once erosion starts, it is almost irreversible. His observations are inconsistent with the 2015 report, at p 2. That report was produced as the result of an inspection on 5 August 2015 by the Department of Mines and Energy. The report is of some importance in this matter.

Vegetation and weeds

The native title applicant associates tracks with disturbance to vegetation and the growth of weeds. It refers to a statement in the Verdant MMP to the effect that the construction of new tracks involves high risk of environmental impact. The anticipated impact appears to relate to protecting vegetation rather than concern about the promotion of weeds. Verdant indicates that it will “remediate” the risk by limiting track width to three metres, avoiding “large vegetation”, and will “scarify track to aid regrowth”.The native title applicant denigrates these steps, without offering any justification for so doing, or any suggestion as to other steps which might be taken. As I have said, it seems unlikely that the existing track system will be extended significantly in the course of the proposed exploration activity. In my view, Verdant’s awareness of such risk is, itself, re-assuring. I note that there is no mention of weeds in the 2015 report.
At paras 102 and 103, the native title applicant refers to Ms Stoll’s report at para 75, apparently in support of the assertion that continued use, or extension of existing tracks, and the construction of new tracks will impact upon native vegetation, including threatened species, and encourage weeds. Again, the native title applicant assumes that the proposed grants will involve more, rather than less exploration activity.
At para 104 the native title applicant asserts that pastoralists on Lyndavale and Curtin Springs stations, “believe that the conduct of exploration to date has resulted in impacts on the country from weed introduction and/or spread”. It also asserts that, “these disturbances have required corrective action”. It is asserted that efforts by Verdant “to meaningfully address” this problem, have been ineffective, and that attempts by Mr Stanes to have Verdant (or Potash) address such concerns have been unfruitful. This proposition is said to be supported by reference to Mr Stanes’ affidavit at paragraphs 38 to 42, and annexure JGS3 to that affidavit. The native title applicant also refers to Mr Severin’s objection dated 25 December 2019, to which I have previously referred. In fact, those references do not support the native title applicant’s assertions. In para 37 of Mr Stanes’ affidavit, he says that in the early 1990s (that is, before the involvement of Verdant and Potash), a fencing contractor introduced a declared weed, “rubber bush”, onto Lyndavale station. There was an infestation near Pulcura Lake and Mygoora Lake (further to the north-east). Mr Stanes says that:
“We have been trying to eradicate it because if we don’t it will push out native pastures which will mean less grazing areas for cattle and other animals. We have to either dig out the plant or spray the weeds with herbicide. This takes a long time and using herbicide may affect our organic certification”.
As far as the evidence goes, the infestation has never been eradicated. There is no suggestion, in this paragraph at least, that it had, or has anything to do with Verdant or Potash. In a letter dated 26 July 2013, Mr Stanes asks Verdant to outline measures to control the spread of rubber bush. However he does not assert that it was responsible for the infestation. At para 38, Mr Stanes says that in early 2013, his wife told Verdant employees not to drive between Pulcura Lake and Mygoora Lakes where there was existing rubber bush (not said to have been introduced by Verdant). Mr Stanes says that he subsequently saw tracks through an area where there was rubber bush. He says that the tracks were not caused by his employees. On that basis he “believes” that Verdant employees and contractors left the tracks. I do not find Mr Stanes’ belief to be persuasive. Mr Stanes then says that in 2019, he discovered a rubber bush infestation near Miningere Lake, about 300 metres from the Verdant camp, some kilometres away from the place at which he saw tracks in 2014. Quite apart from anything else, no such infestation was identified in the 2015 report, and Verdant engaged in only limited activity in the area after late 2015. Curiously, on 26 July 2013, Mr Stanes had written to Mr Doyle, raising various matters. He asserted that “we” had sighted outbreaks of the weed in the areas used by Verdant, and asked about proposed control measures. There is no reference to that sighting in Mr Stanes’ affidavit.
At para 40, Mr Stanes asserts that before Verdant came to the area, there was no athel pine there. Athel pine is a class 1 declared weed. He says that, “one was introduced around 2014”, and that he reported it to the government. The government removed it. There is no express assertion that this plant was introduced by Verdant or Potash. However Mr Stanes refers to a letter dated 25 February 2014 to Mr Doyle, in which he says that he had recently found an athel pine near Pulcura Lake. The government removed it. He said that there had not previously been an outbreak of athel pine on Lyndavale. He implies that Verdant introduced the weed to his property but makes no direct accusation to that effect in the letter, or in his affidavit.
There is no clear evidence relating either outbreak to activities on the part of Verdant or Potash. The evidence may create suspicion, but avoids a direct assertion of misconduct by Verdant. I am unable to draw any inferences adverse to Verdant or Potash with respect to these weeds.
Mr Severin, in his objection, (NTP doc 7, at p. 2), dated 25 December, 2019 writes:
“Our previous history also shows that, regardless of their protocols or commitments, mining vehicles bring in weeds, which they do not take responsibility for and we are left to eradicate and explain to the Pastoral Lands Board. [Verdant], the earlier iteration of Territory Potash was found to have left weeds on Curtain Springs Station, along access roads. They did not perform any activities to manage or contain these weeds.
We have no reason to believe any new activity will be handled any better.”
There are no details of this complaint. Nor is there any suggestion that it was ever put to Verdant or Potash. Again, there is no reference in the 2015 report to the presence of weeds.

Fauna

Fauna is dealt with at paras 105-107 of the native title applicant’s contentions. The contentions rely substantially upon Ms Stoll’s report. At paras 19 to 22 of her report, Ms Stoll identifies bird life found in the proposed tenements. Whilst the lakes may provide a migratory habitat for birds, there is no reason to conclude that Potash’s proposed exploration activity will interfere with that function. It seems unlikely that such activity on one of many lakes would have a significantly adverse effect.
At paras 67-70, Ms Stoll discusses lake invertebrates which are said to be important food sources for aquatic bird species during flooding events. Once again, no particular lake is said to be critical to the wellbeing of such bird life or their feeding habits. At para 70 Ms Stoll says that exploration activity on a lake surface could impact upon the birds’ use of the area as a result of high levels of vehicle activity, construction, and people on such surface, and alteration or diversion of water flow. Again, the proposed exploration activity is limited. The whole of para 70 addresses possibility, not likelihood.
These assertions may have significance in the case of intensive mining activity. However it is difficult to see how they may be relevant to the limited exploration activities which are proposed. Similar comments apply generally to Ms Stoll’s other evidence concerning bird and plant life. See paras 20, 51, 53, 54, 76 and 79 of the report. See also Mr Stanes’ affidavit at paras 6, 7 and 10-12. These paragraphs demonstrate the existence of wildlife rather than any threat to it. Further, they assume much greater exploration activity than is proposed.
At para 108, the native title applicant asserts that between 2010 and 2016 Verdant created tracks totalling 100 kms in length. It then asserts that, “[a]s the project advances towards mining and exploration activities advance (including through trial mining), use of existing access tracks can be reasonably predicted to increase”. As I have pointed out, the expression “trial mining” should, for present purposes, be understood as referring only to the exploration activities of the kind, and to the extent identified by Mr Tziolis. I am presently considering only exploration activity on one lake. While such activity may lead to the creation of some new tracks in the vicinity of the proposed exploration activity, overall movement throughout the proposed tenements will almost certainly be reduced.

In Margarula v Northern Territory (2016) 338 ALR 464, Mansfield J considered whether construction of a go kart track, with an accompanying car park involved major disturbance to a “large lot in the Jabiru Township”. At [348]-[349] his Honour said:
[348] In my view, the process of “levelling the area, forming contours, and provision for stormwater run off to perimeter drains” for a 250 x 200 m track can be and should be characterised as “major disturbance to the land”…“Disturbance” is relevantly defined in the Macquarie Dictionary as the act of interfering with something. The word “major” cannot be said to qualify the word “disturbance” with any degree of precision. However, the qualification of “disturbance” by the word “major” must mean that not just any disturbance will be sufficient. If any disturbance at all would be sufficient to satisfy the definition, then the word “major” would be otiose. In addition, the word “major” must require rather something more akin to “significant”, and sensibly attracting that description.
[349] The Explanatory Memorandum to the Native Title Bill 1993 (Cth) affords some assistance to the task of interpretation. It states that “[t]he definition of this term is intended to cover major or large scale works such as dams and weirs whose construction permanently and significantly disturbs or changes the land.” It goes on to note that “the digging of a well, cultivating land to grow crops or establishing a walking trail in a national park would not constitute major earthworks.” I consider that accords with the natural meaning of the word major, and in the overall context it is also sensible generally to require a disturbance which has permanently and significantly disturbed or changed the land.
At [348] his Honour is clearly considering the term “major disturbance of land”. However the explanatory memorandum (identified at [349] in Margarula) refers to “major earthworks” rather than “major disturbance”. Nonetheless, as I have observed, major earthworks must involve major disturbance in the course of construction. Notwithstanding the exclusion of mining from the operation of the definition of earthworks, as I have said, there is no apparent reason for treating the expression “major disturbance of land” as having a different meaning when used in s 237(c) as opposed to its usage in s 253. His Honour observes that, “in the overall context it is also sensible generally to require a disturbance which has permanently and significantly disturbed or changed the land”. The reference in the explanatory memorandum to, “large scale work such as dams and weirs whose construction permanently and significantly disturbs or changes the land”, supports that observation. The same approach should be taken in the present case.
At [352]-[353], his Honour continued:
[352] There is obviously an element of judgment required. The go-kart track is sealed and contoured, with perimeter drainage works, and as installed has an adjacent surfaced car parking area. It occupies a significant space. It has, clearly, elements or features which indicate that it is intended to exist indefinitely.
[353] In my view, those elements support the conclusion that it is a major earthwork. Although each circumstance must be addressed separately, I note that that conclusion seems to accord with the analysis by Merkel J in Rubibi about the oval.
Mansfield J was considering a project occupying a block of land within a township, not a remote area in excess of 1000 km²area. Concerning a sewage pipeline, at paras [354]-[356] his Honour said:
Magela Creek sewage pipeline
[354] The Commonwealth Respondents contended that a pipeline that pumps treated sewage from the sewage ponds on lot 2303 of the Jabiru Township to Magela Creek is a “major earthwork”.
[355] Martin Cooper gives detailed evidence as to this pipeline in his affidavit of 5 November 2009. Relevantly, Mr Cooper states at [90]-[95]:
The construction of the pipeline required considerable, detailed earthworks.
To construct the pipeline, individual trees and scrub had to be cleared and grubbed in the general manner described above. However, in this instance, the contractor needed to use a small bulldozer or front-end loaders to clear and grub the site, as the aboveground ‘path’ of the pipeline was only about five metres wide.
Excavators and front-end loaders were then used to dig out the underground trench for the pipeline.
The trench that was dug out was just under 1 metre deep and ran for approximately 2 kilometres.
…
Once the trench for the pipeline was excavated, the pipeline for the sewerage [sic] effluent was laid into the trench by the contractor and bulldozers were used to backfill and level the trench.
The description of “clearing and grubbing” referred to in the above passage is contained in [15] of Mr Cooper’s affidavit. It states that “clearing and grubbing” generally involves using bulldozers or front-end loaders to fell trees and remove stumps.
[356] While the trench dug was two kilometres long, and required about a 5 metre clearing width, it is only one metre deep. It has been covered. Apart from the removal of trees, I do not think that this pipeline falls within the definition of a major earthwork. The disturbance to the land whilst permanent in the sense that the pipeline lies within it, is not substantial. The digging of the trench did not cause a permanent disturbance to the land. The excavation was substantial but its residual effects are small. Again, it is a matter of judgment on all the material. In this instance, I do not characterise that disturbance as a significant one, and conclude that the Magela Creek sewage pipeline is not a “major earthwork”.
Finally, in Wilson v South Australia [2020] FCA 1805 Charlesworth J considered these earlier cases in connection with a golf course. The golf course had a range of features, including bunkers, scrapes (sand putting surfaces), fairways and mounds (tees). The features varied in size. However the fairways constituted the vast bulk of the course. They were created by grading and clearing of the surface to allow grass to grow. The bunkers were of irregular shape, and small in surface area, relative to the size of the land as a whole. The “scrapes” were formed by compacting base material into a raised mound with a flat top, over which sand was spread. Subsequently, the sand surfaces were replaced by grass so that they became putting greens. The tees were raised areas, created by compacting mounds of earth on the surface of the ground. They were smaller in area than the scrapes. One of the tees was two metres above the natural ground level. The fairways contained mounds to, “change the configuration of the game”. They were each about 8 cubic metres in volume.
At paras [103]-[104] her Honour said:
[103] It remains to determine whether the works for the establishment of the golf course caused a major disturbance to the land when considered as an integrated whole. In the analysis that follows I will focus first upon discrete features of the course (as that was the approach taken in the evidence and submissions), before analysing them together.
[104] An important feature of the “major earthworks” definition is its focus on disturbance to the land itself, rather than upon the erection of fixtures or features upon or above the land’s surface per se. The disturbance must be “to the land”, and it must be “major”.
At [105] her Honour concluded that the planting of grass, after grading with heavy machinery and significant human effort, did not amount to major disturbance. Similarly, works involving the removal of vegetation and seeding would not do so. Such activity changed the “aesthetics” of the land, and the use to which it would be put (as a golf course), but amounted only to a change of amenity. In considering the question of major disturbance, there must be consideration of impact upon the land, “both qualitatively and quantitatively”. Her Honour concluded that clearing vegetation and seeding the fairways did not constitute major disturbance. Nor did the fairways themselves amount to major disturbance. If left unattended, the fairways would revert to “scrub land”.
At paras 108-109, her Honour concluded that the various features were “subjectively intended to be indefinite” at the time of construction, although such features might be removed, relocated or altered from time to time. At least some of the features did not involve disturbance of the land surface. Rather, they had been constructed by bringing in material, such as slag or creek sand, and piling it upon the land. Her Honour accepted that the construction of such features involved the use of heavy machinery, but did not consider that such use constituted “major earthworks” when considered in the context of the golf course as a whole. Such features involved no significant disturbance, save for the possibility of compaction of the land beneath the imported material. Subject to that unquantified possibility, upon the removal of such features, the land below would be in its original state.
Her Honour took into account the areas of scrapes, tees and mounds, relative to the total area of the course (31 hectares), apparently considering the scrapes and tees as the, “most serious of all the mounds on the land”. Her Honour concluded that the golf course should be considered as a singular “work”, and that the more serious identified “works” (the tees and scrapes) were few and far between.
At [114] her Honour observed:
As Mansfield J said in Margarula, by reference to the Explanatory Memoranda, the “major earthworks” definition is intended to cover large scale earthworks such as dams and weirs which permanently (or at least indefinitely) disturb the land. The evidence shows that the mounds are not immovable from the earth’s surface and that they have in fact been removed or rebuilt in accordance with the Club’s desires to change the configuration of the game from time to time. As has been said, neither their construction nor their removal involved major disturbance to the land in the requisite sense.

Some calculations

Tables 2 and 3 below are provided in order give a perspective to the likely effects of the proposed grants. Table 2, item 1 demonstrates the proportion of the surface area of Miningere Lake which will be occupied by the trench. Mr Tziolis asserted that the trench would be about 6-7 metres wide. I have adopted the figure of 7 metres. Table 2, item 1 also demonstrates the proportion of the surface area of EL32250 which will be so occupied. Of course, the area of all three tenements will be larger. Table 2, item 2, provides the same calculations, based upon the overall width of trench, bund and track, estimated at 23 metres. Table 3, item 1 shows similar calculations for the surface of the evaporation pond as against that of Minskin Lake, and that of EL32250. The figures offer a better guide to the scale of the exploration activities than does any other aspect of the evidence.

Table 2: Trench and Evaporation Pond

Length	Width	Total Surface Area	Area relative to surface area of Miningere Lake	Area relative to the surface area of the proposed tenement
1.	Trench (including only excavation)	1000m	7m	7000m² 0.7 ha
2.	Trench (including excavation, bund and road)	1000m	23m	23,000m² 2.3 ha

Table 3: Evaporation Pond

Length

Width

Total Area

Area relative to the surface area of Minskin Lake

(4.4km² / 440 ha)

Area relative to the surface area of the proposed tenement

Evaporation Pond

18.5m

81m

1498.5m²
0.15 ha

The evaporation pond will be quite shallow, probably to facilitate evaporation. The maximum depth will be less than 150 centimetres. See the PFS at para 7.2.2. The surface areas of Miningere Lake and Minskin Lake are derived from table 4.2 in the PFS. The worst case scenario (assuming a trench width of 23 metres) may be discounted, having regard to the views of Charlesworth J, in Wilson at [109]-[110]. Her Honour considered that the piling and shaping of soil on an existing land surface did not amount to major disturbance of that surface or, in the absence of evidence to the contrary, the area below it. It follows that the storage of spoil on either side of the trench, and any shaping of such spoil do not amount to major disturbance. Hence the calculation based on a trench width of 7 metres should be adopted. In those circumstances, the trench would occupy only .001% of EL32250 and .09% of the surface area of Miningere Lake.
Potash proposes to construct a pipeline, about 1.2 kms in length, between the trench and the evaporation pond. In ex CT-2 to Mr Tziolis’s affidavit at para 3.3 (page 5), the pipe is described as “six-inch Lay-flat hose”. There are to be two such pipes, laid side by side. It seems that they will be laid on the surface. Flat hose is presumably flexible hose which expands when liquid is pumped through it. Its installation on the surface would not amount to disturbance for the reasons given in Wilson: there will be no disturbance of the surface or underlying earth. A photograph on the title page of appendix A to the PFS shows a hose lying flat on the surface. With a magnifying glass, it is possible to identify the hose, extending to the extreme right hand edge of the photograph. The laying of the hoses will not involve major disturbance of the land. It follows that only the trench as described above, and the evaporation pond will constitute disturbance of land for the purposes of s 237(c).

Relevant considerations concerning s 237(c)

Relevant considerations include:
·the area occupied by the disturbed land or waters relevant to the larger area of which it is part;
·the nature, extent and duration of the disturbance;
·the reversibility of any disturbance;
·the nature and timelines of any relevant remedial work;
·the regulatory regime; and
·community attitudes, including those of Aboriginal communities.
Obviously there is a degree of overlap.
As to the extent of any disturbance, in Wilson, Charlesworth J stressed the need to consider the overall impact of the disturbance upon the area of the golf course as a whole. As I have said, the land or waters concerned must be the land or waters to which the proposed grants relate. However “major disturbance” may involve any part of such land or waters. In Rubibi, Merkel J appears to have adopted a similar approach, identifying the disturbed portion of a particular reserve. See paras [129]-[133]. In Banjima, Barker J took a similar approach, particularly at [1463]-[1469]. In Margarula, Mansfield J treated the go-kart track as being a “significant space” within a large allotment, the track being intended to exist indefinitely. See [352]. As to the sewage pipeline, it was permanent, but not substantial. The digging of the trench did not cause permanent disturbance to the relevant allotment. Installation of the pipeline amounted to permanent disturbance, but not major disturbance.
The term “disturbance” describes the actual physical effect likely to be involved in the proposed grants. In this case, such disturbance will be the movement, relocation or re-direction of any land or waters concerned in the proposed grants. Whether or not such disturbance is major may involve a consideration of other factors, including the views of the wider community, local communities and Aboriginal communities. Section 237(c) is not primarily concerned with protecting aspects of Aboriginal traditions. However all relevant community views must be taken into account in considering whether the disturbance is “major”. In other words, there may be consequences, physical or otherwise, as a result of a particular disturbance, which consequences may be relevant in considering whether such disturbance is major.
I have previously described the dimensions of the proposed trench and evaporation pond, the features constituting the relevant disturbance. The trench is half as long as the Margarula sewage trench, but slightly narrower and much deeper. Nonetheless, the trench and the evaporation pond will occupy only a very small part of the proposed tenements. Even if the inquiry be limited to the areas of the relevant lake surfaces to be occupied by those features, the respective proportions are very small. Mansfield J accepted that there would be permanent disturbance of the land, in that the pipe would be permanently in place, although covered. In the present case, no part of the excavation will be permanent. The spoil will remain on either side of the trench and be used for rehabilitation. In other words, the disturbance will be reversible. I see no reason to doubt that Potash will comply with its statutory obligations.
As to visual effect, the lakes lie on relatively flat ground, so that the horizon will be quite close. It follows that the disturbance will be visible only from nearby viewpoints. There will be no place (other than in an aircraft) from which any substantial part of the proposed tenements (or the larger lake area) will be visible, let alone the area as a whole.
As to rehabilitation, the trench and evaporation pond will be back-filled. The flat hoses will be removed. The salt crust may take some years fully to recover, depending upon rainfall. Discolouration may remain after the crust has re-developed. However, as I have observed, the area in question is a very small part of the larger area. Such discolouration would not, itself, contribute to the classification of the disturbance as major. The photographs, Attachments B and C, show trenches during, and after exploration. In the present case, the exploration activity will extend over seven months. The seven month period will probably expire within the term of each of the proposed tenements, although only EL32250 will be affected by the exploration activity. There is no evidence as to when the proposed exploration activity will commence, but I infer that it will probably be earlier rather than later in the relevant term. The native title applicant suggests that there may be no rehabilitation during that time. It contends that both the trench and the evaporation pond may be incorporated into any anticipated mining undertaking. There would appear to be a benefit to Potash in such an arrangement. However mining could only be carried out pursuant to an appropriate mining tenement. If the Territory were to allow the proposed tenements to expire without rehabilitation, so that the trench and evaporation pond could be used in the mining operation, it would be the grant of the new mining tenement which would produce that result, not the proposed grants with which we are now concerned. The effect of delay in any rehabilitation, prior to the expiry of the term of EL32250, would hardly result in the disturbance being major, having regard to the very small area affected.
As to the regulatory regime, it has been discussed at length. In particular, s 35 of the MM Act requires that the Minister must authorize any trenching activity. Section 36 requires that there be a mining management plan in order that such authorization be granted. Section 40 requires that the plan contain costings for closure to which I have previously referred. Further, second schedule conditions 22, 23 and 24 provide for rehabilitation. See also the complaints contained in condition 25. It relates to complaints by native title claimants or holders. In the case of such a complaint, the Minister may direct rectification work or take other action, including cancelling the relevant licence.
Concerning community interests, including Aboriginal views, I have demonstrated the unpersuasive nature of the evidence provided by Mr Stanes and Mr Severin. As to the native title applicant’s views, it should not be assumed that considerations relevant to the s 237(b) case apply with the same force in connection with the s 237(c) case. In para 129 of the native title applicant’s primary contentions, it asserts that it has a “compelling basis in traditional law and custom to place great value on the salt lakes remaining undisturbed”, relying upon the basis outlined in the restricted evidence. Such an approach confuses the functions of ss 237(b) and 237(c). An Aboriginal community’s interests will generally be relevant because of geographical proximity to the concerned land or waters. Their views must not be overlooked, including views concerning their traditions. However s 237(c) does not address interference with areas or sites of particular significance according to relevant traditions. It addresses major disturbance of land or waters concerned. Traditions will be relevant only to the extent that they are relevant to that issue. The question is not that identified at para 37 of the native title applicant’s primary contentions in reply, namely whether the impact of physical disturbance constitutes interference with traditions. Rather, the question is whether the existence of such traditions in some way contributes to the likelihood that any disturbance will be major.

I should say something about disturbance of waters, although the native title applicant says little about that subject. In its primary contentions, it seems to identify the salt crust as being waters for the purposes of s 237. It probably does not matter whether it is treated as land or waters. I have, in effect, dealt with the evidence concerning it. As to other waters, the native title applicant, at paras 91-94 of its primary contentions, deals with the pastoralists’ concerns, with a general reference in para 94, to “other land users”. I have dealt with the pastoralists’ concerns. At para 92 it is said that there have been “significant issues” between Mr Stanes and Verdant concerning water resources, and that Mr Severin is also concerned about competing water usage. However the evidence does not support the allegations made against Verdant. Mr Stanes, at paras 44-46 of his affidavit, asserts that water was taken from a tank which he had presumably filled from local water sources, probably associated with underground reserves. Potash cannot be responsible for his utilization of an available resource. Reference is also made to annexure JGS6, JGS7, JGS8 and JGS13 to his affidavit. That correspondence raises nothing of relevance for present purposes. As to Mr Severin’s position, the native title applicant refers to his objection dated 25 December 2018, NTP doc 7, at pages 3 and 4-5. He expresses concern about water resources relating to EL32249. However, he does not seem to understand the distinction between the proposed limited exploration activity and possible future mining activity.
Mr Stanes (at para 13) and Mr Teamay (at para 21) make reference to water resources for Aboriginal people. However there is no indication as to extent to which such resources are presently being exploited. Mr Teamay seems to be referring to historical occupation of water holes by Aboriginal people rather than present visiting habits. As to paras 114-117 of its primary contentions in reply, the native title applicant refers to the lakes system but seems to be addressing disturbance to the area rather than disturbance of the waters.
The proposed exploration activity may well affect water flow in the vicinity of Miningere Lake, but the nature and extent of such disturbance has not been addressed. There has been no suggestion of observed adverse effects upon the flow of water as a result of the long history of exploration in the area. Ms Stoll identifies the possibility of such an effect, but there is no basis for inferring that any such effect would be major.
On the evidence, it is unlikely that there will be any major disturbance to waters concerned in the proposed grants.
Another matter requiring consideration is the prior history and use of tracks. The evidence suggests that some existing tracks have been created in the course of grazing and exploration activities. Others were constructed by explorers. Some tracks continue to be used. No doubt Verdant made extensive use of existing tracks in the course of its exploration activities, and created some of its own. I infer that it is likely that there are existing tracks providing access to the proposed exploration area at Miningere Lake and Minskin Lake and perhaps, between them. It is probable that Potash will be able to access most areas of the proposed tenements, using existing tracks. I draw that conclusion from the fact that Verdant explored the area between 2010 and 2015, using existing tracks and tracks which it built. I infer that it is unlikely that the track system will be substantially extended for the purposes of the proposed exploration activity.
In the course of this matter, there have been references to the visual impact of exploration activity in an area which some consider to be a place of pristine beauty. However there is no suggestion that Miningere Lake or Minskin Lake is, in any way, special in relation to other lakes within the proposed tenements and beyond. It would be wrong to assume that the proposed further exploration will be a major blot on the landscape. It will be a very small operation in a very large area, probably seen by very few people. During the excavation phase, it may be muddy and unattractive from the point of view of anybody in the immediate vicinity. After rehabilitation, it will eventually fade back into the landscape. I have discussed this matter. The photographs provided in Ms Stoll’s report at pages 47-51 and in NTP doc 3 at pages 66-78 suggest that restoration will occur within a reasonable timeframe. See also the 2015 report at pp 2 and 3 and Attachments B and C to this determination.
I do not accept that the proposed grants are likely to affect the amenity of the land from the point of view of the native title claim group. In drawing this conclusion, I take into account, the very large area of the proposed tenements, the very small area to be directly affected by the proposed exploration activity and the absence of evidence of regular contact between claim group members and the area of the proposed tenements. The evidence does not establish that members of the native title claim group, or members of the Imanpa community live in, use or resort to the proposed tenements on any sort of regular basis. There is little evidence of any such physical involvement. The native title applicant has not suggested any particular way in which the proposed grants might affect their lives, save for the matters identified in connection with s 237(b). As I have said, s 237(c) is not primarily designed to protect community or social activities of the kind contemplated in s 273(a), or areas or sites of particular significance of the kind contemplated in s 237(b). The purpose of s 237(c) is to facilitate the regulation of major disturbance of land or waters.
Some members of the native title claim group may be unhappy concerning Potash’s access to the area, and its proposed exploration activity, considering such activities to be contrary to their traditions. However the absence of evidence of regular association between such members and the extensive area of the proposed tenements suggest that any such unhappiness will probably not be great, having regard to the scale of the project and the overall area of the proposed tenements. The evidence leads me to conclude that it is unlikely that the proposed grants will involve major disturbance to land or waters concerned.

[236]Exploration activities of this kind, in areas of this kind, tend to attract opposition, frequently emotional rather than strictly rational. Aspects of the native title applicant’s case may be superficially attractive. However, they do not stand up to close examination. I accept that the proposed grants will not be limited to the exploration activity identified by Mr Tziolis. However I consider that it is unlikely that any further activity of that kind will occur. I base that conclusion upon Potash’s apparent satisfaction with the extent of previous exploration, and its desire to avoid further expenditure on exploration, save for that outlined by Mr Tziolis.
[237]I have paid particular attention to the decisions in Margarula and Wilson. I have also given weight to the substantial area of the proposed tenements and the small areas involved in the proposed future exploration activity, its temporary nature and the relative ease with which rehabilitation may occur. I have had regard to the native title claim group’s concerns. However given the extensive area involved, the lack of evidence of regular contact between that group and the proposed tenements and the views I have formed concerning the evidence relating to s 237(b), I do not attach great weight to the views expressed by the native title applicant.
[238]For these reasons, I conclude that it is unlikely that the proposed grants will involve major disturbance to any land or waters concerned. For reasons identified in Attachment A, I am also satisfied that it is not likely that the proposed grants will interfere with areas or sites of particular significance in accordance with the native title claim group’s traditions.

DETERMINATION

I determine that the proposed grants attract the expedited procedure.

The Hon J A Dowsett AM, QC
President

19 October 2021

ATTACHMENT A: Restricted Evidence

Attachment A of the decision has been withheld from publication.

Attachment B

Image retrieved from Annexure CT-2 of affidavit of Christopher Tziolis dated 13 January 2021.

Attachment C

Images retrieved from NTP Doc 3, Karinga Lake Mining Management Plan, page 60.