The Top End (Default PBC/CLA) Aboriginal Corporation v Baudin Resources Pty Ltd - [2024] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

The Top End (Default PBC/CLA) Aboriginal Corporation v Baudin Resources Pty Ltd and Another [2024] NNTTA 30 (2 May 2024)

Application No:

DO2022/0004 - 0005

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

The Top End (Default PBC/CLA) Aboriginal Corporation (DCD2020/006)

(native title party)

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Baudin Resources Pty Ltd

(grantee party)

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Northern Territory Government

(Government party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Member Glen Kelly
Place:	Perth
Date:	2 May 2024

Catchwords:	Native title – future act – expedited procedure – Northern Territory – proposed grant of exploration licences – s 237(b) – multiple dreaming sites – ceremony grounds – specificity of location – sites found to be of particular significance – interference with sites or areas of particular significance – inadvertent access to sites – operation of the Northern Territory Sacred Sites regulatory regime – schedules of conditions to be imposed on licences – presumption of regularity – reliance on a previous decision of the Tribunal – determination that the acts are acts attracting the expedited procedure
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 69 Heritage Act 2011 (NT) Mineral Titles Act 2010 (NT) ss 26, 27, 30, 31 Mining Management Act 2001 (NT) Native Title Act 1993 (Cth) ss 29, 31, 32, 237 Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 10, 27, 28, 29, 33, 34, 45
Cases:	Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd; (1996) 136 ALR 557; [1996] FCA 1452 (Ward v Western Australia) Fulton v Northern Territory of Australia [2013] FCA 1088 Fulton on behalf of the Mambali Amaling-Gan, Murungun Igalumba, Murungun Milgawirri, Budal Yuwaran and Guyal Bardi Bardi Dumnyun-Ngatanyana Estate Groups v Northern Territory of Australia [2020] FCA 1271 Kalman Murphy and others on behalf of Waturta v Piper Preston Pty Ltd [2020] NNTTA 74 (*Waturta v Piper Preston) Kevin Allen & Ors on behalf Nyamal #1 v Kristin Voutta, Mark Thomas Piltz and Another* [2023] NNTTA 44 (*Nyamal v Voutta) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People v Robin Boddington and Others on behalf of the Wajarri Elders & Ors* [2002] NNTTA 24 (*Walley) Mr Sandy Limmen and Others on behalf of Alawa, Marra and Nganji People/Astro Mining/Northern Territory* [2002] NNTTA 196 (*Limmen v Astro Mining) Moses Silver, Ishmael Andrews & Sammy Bulabul v Northern Territory and Ashton Exploration Australia Pty Ltd* [2002] NNTTA 18 (*Silver v Northern Territory) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others* [2021] NNTTA 59 (*Nyalpa Pirniku v Anderson) Raymond v Northern Territory of Australia* [2012] FCA 683 Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (*Smith v Western Australia) The Top End (Default PBC/CLA) Aboriginal Corporation v Scriven Exploration Pty Ltd and Another* [2023] NNTTA 13 (*Top End v Scriven) Tonson v Northern Territory of Australia* [2013] FCA 1087 Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd & Another [2022] NNTTA 51 (*Top End v Baudin) Top End (Default PBC/CLA) Aboriginal Corporation v Gempart (NT) Pty Ltd* [2022] NNTTA 64 (*Top End v Gempart) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another* [2014] NNTTA 8 (*Yindjibarndi v FMG*)
Representatives(s) of the native title party:	Eleanor Kay, Northern Land Council

Representative(s) of the grantee party:

Bradly Torgan, Ward Keller

Representatives(s) of the Government party:

Jennifer Laurence, Department of Industry, Tourism and Trade
Stewart Bryson, Solicitor for the Northern Territory

REASONS FOR DETERMINATION

Background

On 12 January 2022, the Northern Territory Government gave notice pursuant to s 29 of the Native Title Act 1993 (Cth) of its intention to grant two exploration licences, EL32937 and EL32938, to Baudin Resources. This notice included a statement that the Territory considers the grants are acts attracting the expedited procedure (see s 32 of the Native Title Act).
The licence EL32937 is located approximately 260 km south east of Katherine at its closest point and is approximately 822 km² in size. This licence overlaps the Tanumbirini Pastoral Lease and the Nutwood Downs Pastoral Lease native title determinations.[1]
[1] See Fulton v Northern Territory of Australia [2013] FCA 1088 and Fulton on behalf of the Mambali Amaling-Gan, Murungun Igalumba, Murungun Milgawirri, Budal Yuwaran and Guyal Bardi Bardi Dumnyun-Ngatanyana Estate Groups v Northern Territory of Australia [2020] FCA 1271 respectively
The licence EL32938 is located approximately 330 km to the south east of Katherine at its closest point and is approximately 741 km² in size. The Tanumbirini Pastoral Lease, the Beetaloo Pastoral Lease and the Broadmere Pastoral Lease native title determinations each partially overlap this proposed licence. [2]
[2] See Fulton v Northern Territory of Australia [2013] FCA 1088, Raymond v Northern Territory of Australia [2012] FCA 683 and Tonson v Northern Territory of Australia [2013] FCA 1087 respectively.
Top End (Default PBC/CLA) Aboriginal Corporation RNTBC is the registered native title body corporate for each of the determined native title groups above. As such, it lodged objections with the National Native Title Tribunal against the Territory’s assertion that the expedited procedure applies to the grant of the proposed licences.
In light of these objections, I must decide whether the expedited procedure applies. If I determine it does, the grant of one or both of the licences can be made. If I determine it does not, the right to negotiate (s 31) shall instead apply and Baudin will be required to negotiate in good faith with Top End with a view to obtaining Top End’s agreement to the granting of the exploration licences.
As set out in s 237 of the Native Title Act, the expedited procedure applies if the grant of the licence is not likely to:
a)interfere directly with the community or social activities of native title claimants in relation to the licence area (s 237(a));
b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title claimants, (s 237(b)); or
c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
My decision is based on addressing the s 237 criteria set out above and in light of the authorities established in relation to this section. I must look at what is likely to occur as a result of the grants and conduct a predictive assessment to decide whether there is a real chance of interference or major disturbance. Yindjibarndi v FMG [15-21] provides a summary of these considerations and authorities, which I adopt for this determination.
For the reasons given below, I have concluded that the grant of the exploration licences EL32937 and EL32938 are acts attracting the expedited procedure.

The Conduct of the Inquiry and Submissions of the Parties

While some small extensions were granted, parties provided material as directed by the Tribunal. In support of its contentions, Top End submitted into evidence witness statements from:
·Ms Christine Farrar (Farrar statement);
·Mr Donald Hume (Hume statement);
·Mr William John (John statement); and
·Mr Samuel Swanson (Swanson statement).
In their statements, Ms Farrar, Mr Hume, Mr John and Mr Swanson explain their relationship to portions of the country under consideration in this determination and their place in the native title groups over which the proposed leases overlap. Having regard to the statements provided, I am satisfied that these witnesses possess the appropriate connection and standing in their respective native title determination areas to provide evidence in this matter.
Baudin also provided witness statements as part of its materials from Ms Sarah James (James statement) and Mr Bradly Torgan (Torgan statement).
Ms James states that she is an exploration manager for Baudin and her statement goes mainly to the proposed work program of Baudin. However, this statement was not affirmed.
The affidavit of Mr Torgan was affirmed. Mr Torgan’s statement provides that he is an attorney employed by Ward Keller, the legal representatives of Baudin and explains that Ms James was away from her office with little access to the appropriate technology to enable her to physically sign her statement at the time. Mr Torgan further provides that despite this, Ms James had indicated by email that the James statement and annexures are correct.
Similar issues arose in Top End v Scriven at [26]-[28]. I adopt the reasoning set out in Top End v Scriven and accept the statement of Ms James.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the Native Title Act. In my view, having regard to the material before me, I am satisfied the matter can be determined without the need for a hearing.

The Proposed Licences and the Proposed Activities

Work Program

The licences are both exploration licences, a type of licence outlined in Part 3 Division 1 of the Mineral Titles Act 2010 (NT). Exploration licences can be granted for up to six years with the Minister able to grant additional two year extensions (ss 27(3) and 30, Mineral Titles Act).
Pursuant to s 26 of the Mineral Titles Act, the holder of an exploration licence possesses the exclusive right to conduct exploration for minerals in the licence area, which includes geological survey, rock sampling, drilling digging pits, trenches and holes, sinking bores and tunnels and extracting and removing for testing samples from the licence area (s 31(1) Mineral Titles Act). Section 31(2) of the Mineral Titles Act provides that the holder may remove samples in larger quantities if the Minister is satisfied that it is appropriate and has authorised the removal.
In its application to the Territory, Baudin provides identical work programs for both licences. Baudin describes the licence areas as being prospective for copper, lead and zinc and that exploration will include techniques such as gravity, magnetic and seismic survey in addition to on ground chipping, sampling and drilling.
Ms James sets out that the work program for years one and two will be the same for both application areas. In year one, Ms James states she expects on site geological mapping, rock shipping and the collection of samples to be conducted by small crews of two to four people by way of four wheel drive access and on foot. This would occur in several field visits of between three to five days.
Ms James explains that year two activities include further field visits via four wheel drive and all-terrain vehicles for the purpose of geological mapping and soil sampling, the amount and location of which is dependent on previous results. Soil sampling is said to involve taking a small amount of soil from a grid pattern of 100 to 200 metres in a defined area. Geological mapping would be expected to take from five to seven days while a soil sampling program is expected to take from two to three weeks. Geophysical survey is also planned to occur during year two, either through airborne survey or by taking on ground measurements in a similar fashion to that described above.
No work program beyond year two is provided due to it being dependent on earlier results. Should results be positive however, Baudin notes that a drilling program is likely to occur with an estimate of five drill holes in years three and four with further and close spaced drill holes in years five and six. Ms James further explains that the area directly impacted by drilling is 15-25 metres and that it is understood Baudin must have an approved mining management plan.
As no work program is provided following year two for me to assess, I will assume Baudin will exercise the full suite of rights provided by the exploration licences over the full extent of the licences. In doing so, I adopt the approach made by Member Sosso in Silver v Northern Territory at [30].

Heritage Places

The Territory provided a copy of the abstract of records from the Aboriginal Affairs Protection Authority (AAPA), the AAPA abstract, for the area of the proposed leases. This indicates that EL32937 contains six recorded sacred sites and EL32938 contains eight recorded sacred sites.
The AAPA abstract also shows that much of the two proposed leases were covered by previous Authority Certificates, certificates issued by the AAPA to conduct activity. I examine the impact of this when considering the statutory and regulatory regime and its effect on interference.
For current purposes, it can be noted that within these Authority Certificates, two of the recorded sites in EL32937 and five of the recorded sites in EL32938 are surrounded by restricted work areas. This has the meaning that in issuing an Authority Certificate for a previous activity, the AAPA placed restrictions on the kind of activities which were permitted in these areas, although the specifics of the restrictions are not included. Two of the sites in each licence area have not been subject to a previous Authority Certificate.

Consideration

In conducting this inquiry, I must look at what is likely to result from the grant of the licences and decide whether there is a real chance or risk of interference or disturbance as outlined in s 237 of the Act and therefore, whether they are acts that attract the expedited procedure (Smith v Western Australia at [23]). The legal principles are outlined in Yindjibarndi v FMG at [15-21]. If I find there is such a real chance or risk of interference under the terms described in s 237, then the expedited procedure does not apply and the parties must negotiate in good faith to seek the native title party’s agreement to the grant of the proposed licence (s 31(1)(b) of the Native Title Act).

Section 237(a): Is the grant of the proposed licences likely to interfere directly with Nyamal’s community or social activities?

Section 237(c): Is the grant of the proposed licences likely to involve, or create rights whose exercise is likely to involve, major disturbance to any part of the area of the proposed licences?

Top End make no contentions in relation to s 237(a) or s 237(c) (Native Title Act). As such, there is no factual material before me in regard to these criteria. Applying the approach outlined in Ward v Western Australia at [26], I find the grant of the licence is not likely to cause interference or disturbance under s 237(a) and s 237(c).

Section 237(b): is the grant of the licence likely to interfere directly with areas or sites of particular significance to Top End?

Are there areas or sites of particular significance in or around the area of the proposed licences?

For an area or site to be regarded as being of particular significance for the purposes of s 237(b) of the Native Title Act, it must be of special or more than ordinary significance to the native title holders in accordance with their traditions. It must be known, able to be located and for its significance to be explained to the Tribunal (see Yindjibarndi v FMG [17] and cases cited therein).
Top End contend there are seven such places in the area of the proposed tenements, these being:
a)The Ambulya site;
b)The Labanga site;
c)The Anderson Waterhole site;
d)The Muynmin sites;
e)The Beauty Plain site;
f)The Binda site; and
g)The ceremony ground at OT Downs homestead.
In its contentions, Baudin refers to a previous Tribunal decision, in which the expedited procedure was found to apply, that dealt with two of the sites identified in this matter, these being Muynmin and Beauty Plain (Limmen v Astro Mining). Neither of these sites were found to be of particular significance in that case, however I am not bound by this determination and should compelling evidence be provided, I am at liberty to find otherwise.

The Ambulya site

Top End provides that the Ambulya site is a billabong located within EL32937. Ms Farrar explains that Ambulya is located near Arnold River, on the Tanumbirini pastoral lease, about 5km from the Alawa Land Trust boundary.
Top End do not equate the Ambulya site to any of those recorded in the AAPA abstract. However, Baudin contends that this site corresponds to ‘Ambullya Waterhole’ on the topographic map provided by the Territory which has a recorded site and prior restricted work area at this location in the AAPA Abstract. I accept this contention from Baudin.
Ms Farrar characterises the Ambulya site as a sacred site and sugarbag country. She also describes a cultural process associated with the site through which she was assigned, for want of a more culturally appropriate phrase, with a second father in addition to her biological father. Ms Farrar further details that Ambulya is where ‘the Sugarbag and the Kangaroo met’ and that they are ‘connected through ceremony’. Top End explains that it is a crossover point for Sugarbag and Kangaroo dreaming which are connected through ceremony.
Ms Farrar provides further information derived from and relating to visits to the site including some testimony on fishing and the collection of bush tucker and medicine. In addition to this, Ms Farrar describes that access, and namely fishing, is only able to be attained in certain places.
Mr Swanson’s statement also provides information relating to the Ambulya site, characterising it as an important place and detailing visits in a similar manner to Ms Farrar. In this, Mr Swanson speaks of fishing and hunting as well as the collection of bush tucker and medicine.
Baudin contends that Ambulya is not a place of particular significance, arguing that association with dreamings does not establish a place as being of particular significance. This does describe the general approach taken by the Tribunal, however it must be noted that this is not universal and must be taken on a case by case basis as indicted by President Dowsett in Waturta v Piper Preston at [39]–[48]. Baudin also contends intergenerational teaching does not in itself create a site of particular significance, given it could be expected that all dreaming sites are the subject of this.
The Territory contends that a conclusion of particular significance does not necessarily follow the association of a place with a dreaming, arguing there is no clear basis for attributing ‘particular’ significance as opposed to a more general idea of the site as being of significance. Mr Swanson, the Territory contends, refers to the site as being important, but does not necessarily offer reasons as to why this is the case while Ms Farrar expresses why the site is personally significant but does not reflect the significance to the group more broadly.
It is clear that Ambulya is a site of significance, the evidence provided is compelling enough to demonstrate this. In this case however, the test is whether the site is of particular significance and it is my view that the evidence provided falls short of showing this. Ms Farrar provides a foundation of evidence in describing the attributes of the place including an outline of the traditions of the group as it pertains to the site and to herself personally. In my view however, this description does not then go on to explain the particular significance of the site. While I acknowledge the site can be seen to be of importance, in this instance I am of the view that insufficient evidence has been provided to establish its particular significance in the context of s 237(b). As such, I do not find that Ambulya is a site of particular significance.

The Labanga site

Top End provides that Labanga is a billabong on the Arnold River located within EL32937. Mr Swanson states that the site is approximately 400 metres south of the Ambulya outstation, which is near the Ambulya site. Ms Farrar states the site is approximately twenty minutes drive from Ambulya and that driving from the Cox River, Labanga is arrived at first and then Ambulya. Examining the topographical map provided by the Territory, this would seem to place Labanga to the north of Ambulya close to the northern boundary of EL32937.
While there is some ambiguity as to location, Baudin reach the same conclusion on the location of this site and further contend this corresponds to a recorded sacred site and restricted work area shown in the AAPA Abstract of records. I accept this contention from Baudin as to the location of the site.
Mr Swanson sets out that Lambanga is a Kangaroo dreaming place and speaks of the brother type relationship with the Sugarbag dreaming discussed in relation to Ambulya, echoed by Ms Farrar. Aside from this and statements surrounding the significance of the site, no further evidence is provided as to the nature of the significance or of the particular significance of Lambanga.
Having reviewed the materials before me, I am of the view that insufficient evidence has been provided to establish Lambanga as a place of particular significance. The site has been described in broad terms however the evidence has not gone to an explanation of particular significance as required in considering s 237(b). As such, I do not find Lambanga is a place of particular significance.

The Anderson Waterhole site

Ms Farrar provides that the Anderson Waterhole site is a billabong on the Arnold River, south west of Ambulya on EL32937, and along with Ambulya, is associated with the Sugarbag dreaming. Top End contend this site is of particular significance due to its association with the Sugarbag dreaming.
Baudin contends that Top End’s evidence does not adequately specify a location. A place named ‘Anderson Waterhole’ can be made out on the topographical mapping provided by the State however, in a location that corresponds to Ms Farrar’s description. While I am satisfied of the location in general from this description, there is some difficulty understanding whether it is within or outside of the proposed licence.
Little hinges on this issue however, as aside from the information summarised above, no further evidence on the particular significance of the Anderson Waterhole has been provided. On this basis, I do not find that Anderson Waterhole is a place of particular significance.

The Muynmin sites

Top End provides that the Muynmin sites comprise a rock formation and a waterhole. They are described by Mr Hume as a waterhole about 500 metres east of the old Tanumbirini homestead and a rock formation in between the waterhole and the homestead.
While the location of the old Tanumbirini homestead is partially obscured in the topographic map provided by the Territory, as is the name of the waterhole immediately to the east, its location can be made out and it is clear this area is located within EL32938, albeit in close proximity to its northern border.
Baudin contend that the site corresponds to a recorded sacred site in the AAPA Abstract, that this is corroborated by the Territory’s topographic map and that the waterhole adjacent to the old Tanumbirini homestead is called Muynmin Waterhole on this map. In my view, these contentions from Baudin align with the evidence provided by Top End and the material provided by the Territory, and as such I accept them.
Regarding the sites, Mr Hume sets out that the rock formation and the waterhole are ‘important sites for my Devil Devil dreaming’ and that this dreaming comes from a place called Marnta which is situated on Beetaloo station, and through Tanumbirini near the old homestead.
As mentioned, Mr Hume sets out that the waterhole is about 500 metres from the old homestead and is part of the Devil Devil dreaming. The rock formation is described as being not far from the old homestead, a couple of minutes walk towards the homestead from the waterhole, and says it is a sacred place where ‘no white fella can go … unless they go with the right people.’[3]
[3] Hume statement [20]
Both Baudin and the Territory contend that the evidence provided does not sustain the contention that the Muynmin sites are places of particular significance. Baudin add a further contention related to the amount of visitation to the site, arguing that it isn’t possible to adequately respond to the evidence regarding these sites without particulars surrounding the utilisation of the area and how often this occurs. This however, is not a consideration in regard to s 237(b). A site may be seldom visited by virtue of it being a place of particular significance.
These sites were also considered in Top End v Gempart at [28]-[29]. I have arrived at a similar view, that the evidence provided is insufficient to enable a finding of particular significance. As previously, it is clear the site is of significance, however while Top End has described site attributes, it has not fully explained the particular significance beyond the assertion that it is. Accordingly, I do not find the Muynmin sites are places of particular significance.

Beauty Plain

Mr Hume provides that this site is around one kilometre from the north-eastern corner of the boundary of EL32938. It seems more likely that this place is located outside of the north western corner of EL32938 as Mr Hume also describes it as being to the west of the old Taunumbirini homestead and the topographic map provided by the Territory shows Beauty Creek to the west and north west of EL32938.
Mr Hume states that the Goanna dreaming is located at this site and Top End contends that this site is of particular significance due its association with this dreaming. Mr Hume also provides evidence regarding his visitation to the area. I would note that this site was found to be a place of particular significance in Top End v Gempart [27].
Baudin contend that there is insufficient evidence to conclude that the site is of particular significance. The Territory reiterates the contentions made by Baudin and further contend that because the Beauty Plain site is located outside EL32938, its significance is not relevant for the purposes of the objection as the rights conferred on Baudin would not affect this site.
This is not a correct assertion in regard to a place of particular significance, as such a place may be found to exist outside of the proposed licence. In regard to whether such a place may experience interference, in such cases the native title party must demonstrate how the site would be ‘directly and physically affected by exploration activities’ including off site activities where they are an integral part of activities on site (Silver v Northern Territory at [89]).
Although the evidence presented before this inquiry is not as comprehensive as one would hope, a previous finding that a place is of particular significance is compelling. As such, I adopt the finding of Member Shurven in Top End v Gempart at [27] that Beauty Plain is a place of particular significance.

Cemetery at Old Tanumbirini Homestead

Mr Hume provides evidence that there is a cemetery at the old Tanumbirini homestead where his grandfather and others are buried and is an important place for this reason. No further information is provided which is somewhat vexing as cemeteries are obviously significant however the evidence provided here is scant, almost mentioned in passing.
This coupled with the absence of argument from Top End makes assessment difficult. In previous determinations I have accepted burial places as being of particular significance even where a normal finding of this type may not be available, by virtue of the nature of burial places (see Nyamal v Voutta at [32] for example). Even so, in these cases, substantially further evidence was provided than in this instance, leading me to the conclusion that insufficient evidence has been provided on this occasion to show its particular significance.
In considering this portion of this inquiry, I would again cite Ward v Western Australia at [26]. In applying the principles set out in this clause, I do not find this to be a place of particular significance. I would also note that this site was also considered in Top End v Gempart at [30]-[31] in which a similar conclusion was reached.

The Binda site and ceremony ground at OT Downs homestead

The Binda site is a complex of three sites in the southern portion of EL32938. Mr John states that the Binda site is located close to the old OT Downs homestead and describes the distance and direction of the sites from the old homestead itself. The old OT Downs homestead is clearly discernible in the topographic mapping provided by the Territory.
Baudin contends that the Binda site and ceremony ground correspond with recorded sacred sites that are noted on the AAPA Abstract. I accept this contention. It seems clear that the sites described by Mr John are those shown on the AAPA Abstract.
Top End contend that the Binda site is an area of particular significance due to its association with the snake dreaming, the Gujika songline and a ceremony ground for young men’s ceremony. Mr John sets out that at the Binda site ‘there is a hill with a ceremony ground at top [sic] and at the bottom there is a creek where the snake is resting. There is a painting there too at Binda, right next to where the snake is resting.’[4]
[4] John statement [19]
In relation to the snake dreaming, Mr John states it is his dreaming through his father and that the site at Binda is ‘the main place for that whole Binda country where my snake dreaming goes.’[5] Mr John also describes that there is a creek named Parsons Creek running through the area and that the creek is part of the sacred site as the snake rests there, at the bottom of the hill. The painting referred to is also just two or three metres away from where the snake is resting.
[5] John statement [14],[16]
Mr John provides further information regarding the song lines, describing them as ‘the main things we use that connects us to country’[6] and outlines a number of cultural prohibitions associated with these song lines. Additionally, on the hill that abuts the above described sites, Mr John sets out that there is a camp area on a flat at the top as well as a ceremony ground. Mr John describes his family connection to the camp area and in relation to the ceremony area, outlines that a ‘higher ceremony happened on the hill that is a secret site’[7] along with further information of the ceremony type.
[6] John statement [27]
[7] John statement [23]
Mr John also describes a ceremony ground at the old OT Downs homestead itself, which he states is separate from the ceremony site on the hill described above. He states that prior to his birth, a young man ceremony occurred on the site every year and that his father went through this ceremony.
Baudin make no contentions on the particular significance of the Binda site complex but does contend it is not possible to respond to the evidence provided by Top End without further particulars, which look to mainly revolve around usage and the continuation of the ceremony on the site. As previously expressed, usage is not necessarily a consideration for assessing particular significance.
The Territory takes a different view in relation to the Binda sites, stating that the combination of factors described by Mr John leave open the conclusion that these places may be of particular significance. The Territory does not hold this same view in relation to the ceremony site at the old OT Downs homestead however, contending that the same level of specificity of evidence as the Binda sites does not occur and effectively that there is insufficient evidence to enable a finding of particular significance.
Having examined the evidence before me, I am satisfied that the Binda site complex is a place of particular significance. My view on this is similar to that of the Territory in that the evidence provided here is more detailed and the nature of the particular significance is more adequately explained. I am also of the view that the combination of cultural factors surrounding the sites as described in the evidence provided by Top End reinforces this finding.
While my initial view was that the ceremonial ground at the old OT Downs homestead should be considered as part of the same site complex, Mr John does differentiate between the places in question. Considered on its own merits, I have formed the view that the evidence provided is insufficient to enable me to find it is a place of particular significance.

Is there likely to be interference to these sites or places of particular significance?

As I have found the Binda and Beauty Plain sites are places of particular significance, it is necessary to conduct an assessment of whether there is a risk of interference to these places as a result of the grant of the proposed licences.
Yindjibarndi v FMG at [17] – [18] summarises how interference to places of particular significance is assessed for the purposes of inquiry. In short, there must be a real risk of interference with the area or site of particular significance and this will generally involve physical intervention.
Evidence of what constitutes interference in accordance with the traditions of the native title holders is a relevant consideration and even slight interference may constitute interference given this context. The activities proposed to be undertaken by the grantee party are also relevant considerations in assessing the likelihood of interference, as are the conditions to be applied by the Territory in addition to the statutory and regulatory regime are also.
Focusing first on the Binda site, Top End contend that the evidence from native title holders establishes that people not part of that community must ask permission to visit or go to the land near the sites and that they must be accompanied. Top End further contend that evidence establishes that not doing so could cause harm to the visitor. Accordingly, Top End contend, even entry by strangers without permission or accompaniment is likely to result in interference.
The evidence relied upon is the affidavit of Mr John who states that if asked, he would take visitors to the paintings so they can be known and protected, but not to the ceremony ground as only people who have gone through the ceremony are permitted to visit that area. Mr John also sets out that if there were transgressions from this, he would likely suffer consequences and that drilling nearby could damage the sites. Mr John contends similarly in relation to the creek at the foot of the hill.
The regulatory environment of the Territory is a key consideration, the main statutes under consideration in this case being:
a)Sacred Sites Act 1989
b)Land Rights Act 1976
c)Heritage Act 2011
d)Mining Management Act 2001
e)Mineral Titles Act 2010
In addition to this, the Territory is set to impose conditions on the grant of title contained in two schedules, known as the ‘First Schedule’ and ‘Second Schedule.’
The definition of a sacred site is provided by the Land Rights Act and is adopted by the Sacred Sites Act. A sacred site 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.
All sacred sites are protected by the Sacred Sites Act which at s 33 makes it an offence to enter onto, work on a sacred site except in performing a function of or in accordance with the Act. It also makes it an offence to desecrate a sacred site. Additionally, the Land Rights Act makes it an offence at s 69(1) to enter onto or remain on a sacred site unless acting in accordance with an Act of the Territory.
The Sacred Sites Act creates a Register of Sacred Sites (s 10(d)) onto which sites can be placed following an application and registration process (ss 27-29). One of the effects of registration is provided by s 45 that if a site has been placed on the Register of Sacred Sites, this shall be accepted as prima facie evidence without further proof being required that the area is a sacred site. Presumably, if a site is not on this register and some form of legal action is occurring around such a place, whether a site could actually be considered sacred and therefore whether the Sacred Sites Act would apply would be at contest where as, if the site is on the register, s 45 provides that it would not be.
In its contentions, the Territory notes a distinction between registered sacred sites and a separate category known as recorded sacred sites. In the AAPA Abstract Record, the AAPA notes that a recorded sacred site is one that is known to the Authority but has not been placed on the register due to further work being required or due to the wishes of the custodians. The noting of recorded sacred sites is not a statutory measure, rather it looks to be an administrative measure to highlight the coverage of the Sacred Sites Act to these places and to note that unless ultimately shown not to be sacred sites as defined, the protective provisions of the Sacred Sites Act also applies.
As noted in the examination of the Binda site, I accepted the contention that this place corresponds to a recorded sacred site as shown on the AAPA abstract. The AAPA abstract also shows that most of the area surrounding the Binda site has previously been subject to an Authority Certificate to conduct works.
To clarify, an Authority Certificate is the mechanism provided by Part III of the Sacred Sites Act whereby a proponent may apply to the AAPA for authority to conduct activity, which is to be done in accordance with the conditions of the Authority Certificate. An Authority Certificate is neither mandatory nor transferrable. What it does provide is a defence to prosecution (s 34) and in general, a precautionary approach whereby proponents are provided guidance as to how to avoid the damage of sacred sites. In deliberating on an Authority Certificate, the AAPA is required to consult with custodians. The AAPA is also able to apply conditions over activities in the area of an Authority Certificate.
The AAPA Abstract shows that as part of these previous Authority Certificates, the particular applicant/s at the time were subject to restricted work areas in the area surrounding the Binda site. According to the AAPA Abstract, a restricted work area is one that has had restrictions placed on activities permitted in the area. In this instance, I am unaware of what these restrictions may have been and also note these restrictions apply to previous work programs, not potential or future ones.
As an additional layer, the Territory proposes to impose conditions on the grant of the proposed licences. The Second Schedule conditions in particular contain consultation and site protection measures. In conducting these consultation measures, enlivened for any exploration activities other than reconnaissance, Baudin must have regard to the representations made to it by custodians however, is not required to adopt what these representations may urge. Should these representations reveal the existence and/or location of sacred sites that may not be registered or recorded, Baudin would be required to comply with the prohibition of entry contained within the Sacred Sites Act.
Both the Territory and Baudin contend that the expedited procedure should apply by virtue of the statutory and regulatory environment. Additionally, both the Territory and Baudin contend that the presumption of regularity applies. In accordance with this, both the Territory and Baudin will not act in a manner contrary to this statutory and regulatory environment and in Baudin’s case, the conditions imposed. I accept the presumption of regularity applies.

In keeping with this, Baudin contends it understands its legal obligations and notes the requirement for contractor training on sacred site management in any mine management plan prior to ground disturbing activity per the Mining Management Act. As such, Baudin contends that any places found to be of particular significance in this matter are not likely to be interfered with due to the statutory and regulatory environment, the conditions to be applied by the Territory and because the location of any places of particular significance is known and can therefore be avoided in compliance with statute, namely the Sacred Sites Act.
Top End contend the statutory regime does not provide proactive protection and nor can they be relied upon if a grantee party is not aware of the boundaries of a sacred site. They also contend that Baudin couldn’t know the boundaries of a place of particular significance without the participation of Traditional Owners. Further, the accuracy of recorded sites provided in the AAPA Abstract cannot be guaranteed and is subject to change with the further work required for a site to be placed on the Register of Sacred Sites.
Top End also note that while Authority Certificates, exclusion zones and restricted areas can provide protection for sites, those that are issued for previous works and proponents cannot be relied upon by Baudin, and by extension, do not offer current protections.
It is correct to say that previous Authority Certificates and exclusion zones do not provide ongoing protection. It would also be correct to say that Baudin is not required to apply for a new Authority Certificate, although it would seem wise to do so. I would agree with the submission of Top End that the location of the recorded sites provided in the AAPA abstract perhaps shouldn’t be relied upon with any great confidence in the absence of further information.
In this instance however, I am satisfied that the Binda site has been described with sufficient precision by the native title party which, when used alongside the AAPA abstract, allow the location and the elements of the Binda site to be readily discernible and thereby avoided. Having accepted the presumption of regularity and given simple entry onto such a place is an offence, I accept that Baudin is unlikely to enter onto the Binda site. Given the previous Authority Certificates and restricted work areas, I would also consider that Baudin is effectively on notice in relation to this site, further containing the risk of interference.
Given these factors, I do not find that the Binda site is likely to be subject to interference. This finding is not dissimilar to that of Member Shurven in Top End v Baudin at [83], although in this case the certainty of location is provided through description rather than fencing. I would also remark that this approach would apply to the other places put forward by Top End that I have not found are places of particular significance given the precision of their described location.
Although the observations on the statutory and regulatory regime also stand for the Beauty Plain site, its location is less clear. What is clear however is that it is outside of the proposed tenements so as mentioned, it must be shown how the site would be directly and physically affected by exploration activities including off site activities (Silver v Northern Territory at [89]).
I am not satisfied that this has been shown. Despite uncertainties with the Baudin work program post year two, there is insufficient evidence to suggest that the activities of Baudin or the access it requires to the prospective leases will impact upon Beauty Plain. In accordance with this, I do not find there is a real risk of interference or disturbance with the Beauty Plain site.

Determination

I find the grant of exploration licences EL32937 and EL32938 to Baudin Resources Pty Ltd are acts attracting the expedited procedure.

Mr Glen Kelly
Member
2 May 2024