The Top End (Default PBC/CLA) Aboriginal Corporation v Scriven Exploration Pty Ltd - [2023] NNTTA 13

NATIONAL NATIVE TITLE TRIBUNAL

The Top End (Default PBC/CLA) Aboriginal Corporation v Scriven Exploration Pty Ltd and Another [2023] NNTTA 13 (28 April 2023)

Application No:

DO2021/0002

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

- and -

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

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

(native title party)

- and -

Scriven Exploration Pty Ltd

(grantee party)

- and -

Northern Territory Government

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Member Glen Kelly
Place:	Perth
Date:	28 April 2023

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – cultural authority of witness to provide evidence – discussion of Northern Territory heritage protection regime - whether act likely to interfere with sites of particular significance – place of particular significance located outside of proposed licence – whether grantee party activities will interfere with place of particular significance located outside of proposed licence – whether act likely to interfere with carrying on of community or social activities – interference with hunting and camping activities – location of Aboriginal communities nearby – intermittent nature of community or social activities – active manifestation of community or social activities on area outside of proposed licence – whether act likely to involve major disturbance to land or waters
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (NT) s 3 Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 3, 22, 27 Mineral Titles Act 2010 (NT) ss 26, 27, 30, 31 Native Title Act 1993 (Cth) ss 29, 32, 142, 151, 173, 237
Cases:	Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People v Robin Boddington and Others on behalf of the Wajarri Elders and Others [2002] NNTTA 24 (*Walley v Western Australia) Little v State of Western Australia* [2001] FCA 1706 (*Little v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul v Northern Territory and Another* [2002] NNTTA 18 (Silver v Northern Territory) Morrison on behalf of the Kunapa, Kangawarla, Kanturrpa, Marntikara, Ngarrka and Pirrtangu Groups v Northern Territory of Australia (Banka West Pastoral Lease Proceeding) [2020] FCA 1549 (Banka Banka West Pastoral Lease Proceeding) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (*Smith v Western Australia) Tullock v State of Western Australia* [2010] FCA 351 (*Tullock v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another* [2014] NNTTA 8 (*Yindjibarndi v FMG) Yinhawangka Aboriginal Corporation RNTBC and Another v Korab Resources Limited and Another* [2022] NNTTA 69 (*Yinhawangka v Korab) Ben Ward and Others v Western Australia and Others* [1996] FCA 1452 (*Ward v Western Australia*)
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:

Stewart Bryson, Solicitor for the Northern Territory

REASONS FOR DETERMINATION

Background

This is a decision on whether the expedited procedure as described in s 237 of the Native Title Act (NTA), applies to the grant of exploration licence EL32706 (the proposed licence) to Scriven Exploration Pty Ltd (Scriven/grantee party).
On 16 June 2021, the Northern Territory Government (Territory) gave notice under s 29 of the NTA of its intention to grant the proposed licence. The notice included a statement that the Territory considers the grant is an act attracting the expedited procedure (see s 32 of the NTA).
As outlined in s 237 of the NTA, the expedited procedure applies if the grant of the licence is not likely to:
a)interfere directly with the community or social activities of the holders of native title 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 holders, (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)).
The proposed licence is approximately 35.52 square kilometres in size and is situated approximately 80 kilometres north-west of Tennant Creek. The Banka Banka West Pastoral Lease Proceeding native title determination (DCD2020/006) wholly overlaps the proposed licence.
On 18 October 2021, Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (Top End/native title party) lodged an objection with the National Native Title Tribunal (Tribunal) in response to the Territory’s assertion that the expedited procedure applies to the grant of the proposed licence. The native title party had standing to make this objection as it was a registered native title body corporate for the licence area at the time the s 29 notice was given (ss 29(2)(a) and 30(1) of the NTA).
Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter. My decision is based on addressing the criteria set out in s 237 of the NTA and making a predictive assessment (see Yindjibarndi v FMG at [15]-[21] and cases cited therein). In making this assessment I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance. In doing this I must have regard to the rights conferred by the grant of the licence, evidence of the grantee’s intentions, and the applicable regulatory regime (see Walley v Western Australia at [8]-[9] and cases cited therein).
For the reasons outlined below, I have determined the grant of EL32706 is an act attracting the expedited procedure.

The Conduct of the Inquiry and Submissions of the Parties

On 10 November 2021, directions were made for the parties to provide supporting material and for the conduct of the inquiry.
On 11 January 2022, a 4 week extension was provided to the native title party following an 8 week extension request, purportedly to allow for negotiations to continue and for the native title party to gather evidence from remote communities. Scriven advised it was unaware of any negotiations and would require further information regarding the difficulties in collecting evidence, as such it opposed the extension. The Territory opposed an 8 week extension but stated that it agreed to a 2-3 week extension.
On 8 February 2022, a further 2 week extension to compliance dates was granted to allow the native title party additional time to finalise their contentions. This extension was in part a response to COVID-19 restrictions which had been imposed in the Northern Territory. The extension was supported by the Territory and Scriven. On 16 March 2022, I granted the Territory a brief one day extension to compliance dates. This was supported by the native title party and Scriven.
On 22 March 2022, I approved a one week extension to compliance dates in order to allow the native title party time to lodge their reply contentions. This extension was requested in light of the length of contentions lodged by Scriven and the Territory as well as the lawyer with carriage of this matter for the native title party testing positive for COVID-19. The Territory and Scriven both opposed the extension.
While a number of extensions were opposed by both the Territory and Scriven, it is worthwhile noting s 142 of the NTA requires the Tribunal to ensure every party is given a reasonable opportunity to present their case. Given the time of year, the remoteness of deponents and COVID-19 restrictions, I formed the view it would not be reasonable to refuse each extension request.
In accordance with directions, the parties provided contentions and other material. The Territory provided contentions (Territory contentions) and materials, including
·        Topographical and tenure mapping;
·        Abstract of Records from the Aboriginal Areas Protection Authority (AAPA) (Abstract);
·        Scriven’s Application for a Mineral Exploration Licence or Mineral Authority for Exploration (Application), proposed Work Program and supporting documentation as provided to the Territory;
·        Template conditions applicable to the grant of an exploration licence; and
·        Current and historic overlapping titles information for the relevant areas
The native title party provided:
·        Contentions lodged 23 February 2022 (NTP contentions);
·        Witness Statement of Mr Leon Stokes (L Stokes statement);
·        Witness Statement of Ms Dianne Stokes (D Stokes statement);
·        Witness Statement of Mr Dick Foster (D Foster statement); and
·        Native title party reply contentions lodged 31 March 2022 (NTP reply contentions).
Mr Stokes provides he is a Kangawarla man and a boss for Kangawarla country (L Stokes statement [2]). Mr Stokes explains Kangawarlangurru is the country for the Stokes family and Mr Stokes is connected to his country through his father and grandfather (L Stokes statement [2], [5]).
Ms Stokes, a sibling of Mr Stokes, provides she is a Kangawarla woman and like her father, is a managaya or boss for Kangawarla country (D Stokes statement [2]-[3]). Ms Stokes explains she is a kurdungurlu, or caretaker, for her mother's country, Milwayi (D Stokes statement [3]).
Mr Foster explains he is a senior Warlmanpa Law man and that, through his father and grandfather he is Kirta for his country, which is Ngapa country (D Foster statement [6] [8]). Kirta is defined as boss for a site by the native title party (NTP contentions [28]). Mr Foster states he takes young men through law and is a kurtungulu in ceremony for the Milwayi, Pirttangu, Kangarwarla, Marntikarra, Kunapa, Jalajirrpa, Wirntiku and Bamayu groups (D Foster statement [10]). Four of these groups hold native title in the proposed licence area (Banka Banka West Pastoral Lease Proceeding [5]).
The Territory takes issue with the evidence of Mr Foster and contends the country Mr Foster outlines in his statement would appear to lie approximately 25 kilometres northwest of the proposed licence area (Territory contentions [23]). The Territory also notes that Mr Foster is not explicitly identified by either Ms Stokes or Mr Stokes as one of the main bosses, or kurdungurlu, who would be involved in access to country decisions, nor do they explicitly link his cultural authority with the particular proposed licence area (Territory contentions [26]-[27]).
While it is noted by the Territory that Ms Stokes deposes that ‘Dick Foster Jangali is still teaching me and my two brothers about Kangawarla country’, the Territory contends that no specificity on the parts of Kangawarla country this pertains to is provided. On this basis the Territory say, it is not clear what the relevance of Mr Foster’s evidence is and that, absent any explanation on the role of Mr Foster in the community, the Tribunal should give it little or no weight (Territory contentions [28]-[30]).
In reply Top End contends that Mr Foster has ‘described his father’s country as his country’, which is not to say that the proposed licence area is not his country or he is not kurdungurlu for the area (NTP reply contentions [18]). Additionally Top End contends that Ms Stokes evidence establishes that she views Mr Foster as a cultural authority for the region (NTP reply contentions [18]).
Top End also contend that the native title party ‘cannot be expected to provide quantifiable evidence to the degree of specificity that is suggested in the Government Party’s Contentions, nor is such evidence required for the Tribunal’ (NTP reply contentions [19]).
The Territory agrees members of the Kangarwarla estate group are the native title holders of the proposed licence area, are the relevant traditional owner community and that Mr and Ms Stokes are members of the Kangarwarla estate group (Territory contentions [21]-[22]). The effect of the contentions of the Territory is that Mr Foster cannot be said to be a member of this group from the materials provided.
I am more inclined to agree with the submission of Top End on this point. The Territory appears to be seeking information of the type that would be presented in native title connection evidence. This is not the type of material that is demanded by inquiries into the expedited procedure. It is established in Little v Western Australia at [78] that a deponent for the native title party needs to establish they are properly qualified to speak, that they hold a particular position within the community and actively maintain contact with the community and its traditions.
I am satisfied that Mr Foster has fulfilled these requirements. The reference to Mr Foster as ‘still teaching me and my two brothers about Kangawarla country’ by Ms Stokes is a clear reference to his standing (D Stokes statement [6]). As such, I accept Mr Foster’s standing and his ability to provide evidence in this matter and will not be treating his evidence with lesser weight. I also accept the standing of Mr and Ms Stokes and their ability to provide evidence in this matter.
The grantee party provided:
·        Contentions lodged 30 March 2022 (grantee contentions);
·        Unsigned affidavit of Neil Scriven (Scriven affidavit); and
·        Affidavit of Bradly Torgan (Torgan affidavit).
Mr Scriven explains he is the Managing Director for Scriven and is ‘responsible for management and oversight of Scriven's minerals exploration activities’ (Scriven affidavit [1]). An issue arises in relation to the statement of Mr Scriven in that he states that while he has reviewed the affidavit to ensure it is correct and truthful, he was unable to sign due to being overseas and not having access to the appropriate technology (Scriven affidavit [16]).
Mr Torgan provides that he is an attorney employed by Ward Keller, the legal representatives of Scriven (Torgan affidavit [1]). He explains that although Mr Scriven was overseas and unable to provide a signed copy, he has ‘indicated’ by email and telephone that the Scriven affidavit and annexures are correct (Torgan affidavit [3]-[4]). The statement from Mr Torgan is in the form of a sworn affidavit.
While this is not ideal, in my view the sworn statement of Mr Torgan verifying the unsigned statement of Mr Scriven overcomes any major issues, which is consistent with the approach I have taken in other matters (see Yinhawangka v Korab at [35] and [39] for example). Pursuant to s 109 of the NTA, the Tribunal is not bound by the rules of evidence and s 173 provides that it is an offence to give false evidence to the Tribunal. As a result of these provisions and the sworn statement of Mr Torgan, I accept the statement of Mr Scriven and will not be treating it with lesser weight.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA. 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 licence and the proposed activities

The proposed licence is an exploration licence, a type of licence outlined in Part 3 Division 1 of the Mineral Titles Act 2010 (NT) (MTA). Exploration licences can be granted for up to 6 years, with the Minister able to grant additional 2 year extensions per ss 27(3) and 30 of the MTA. Scriven has applied for a 6 year licence (Application, 2). The rights available under an exploration licence are provided at s 26 of the MTA, being:
a. the right to occupy the title area specified in the EL; and
b. the exclusive right to conduct exploration for minerals in the title area and other activities specified in s 31; and
c. the exclusive right to apply for a mineral lease for all or part of the title area.
Section 31(1) of the MTA provides that the holder of an exploration licence has the right to:
·      dig pits, trenches and holes, and sink bores and tunnels, in the title area;
·     ascertain the quality, quantity or extent of materials in the title area by drilling or other methods; and
·     extract and remove samples from the title area in amounts reasonably necessary for the evaluation of the potential for mining in the area.
Section 31(2) provides that the holder may remove samples in larger quantities if the Minister is satisfied that it is appropriate and has authorised the removal.
The underlying land tenure is Pastoral Lease 1203 – Banka Banka West Station.
The abstract indicates the proposed licence area contains 2 recorded sites, meaning they are sites known to the AAPA but not registered as ‘sacred sites’ under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act). This may be because further research is required or because a formal application under s 27 of the Sacred Sites Act has not been made.
For the purposes of the Sacred Sites Act a ‘sacred site’ is ‘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’ (Sacred Sites Act s 3, Aboriginal Land Rights (Northern Territory) Act 1976 (NT) s 3). A person is only permitted to enter and remain on a sacred site, carry out works on a sacred site, or make use of a sacred site in accordance with an Authority Certificate granted by the AAPA (Sacred Sites Act s 22).
The abstract shows that one of the recorded sites is surrounded by a restricted work area, meaning that in issuing an Authority Certificate for a previous activity, the AAPA placed restrictions on the kind of activities which were permitted. The second site has not been subject to a previous authority certificate.
Restrictions placed on works can vary. The Authority Certificate, which provides the details for a site, may prohibit any work in the area or prevent certain activities, such as ground disturbing work, damage to trees, or the removal of sand or gravel. The conditions in a certificate are specific to each application and depend on the works proposed.
In the Work Program provided by the Territory, Scriven proposes targeting ‘Gold, manganese and base metals’. In year one Scriven intends to undertake a program of ‘geological mapping & geophysics’ and ‘Office Studies’ with a minimum expenditure of $5,000. In year 2 Scriven also intends to add a drilling program targeting sites identified in year one, with a total minimum annual expenditure of $9,000. No information is provided in the work program concerning Scriven’s proposed activities in years 3-6.
The Scriven affidavit provides that the year one geological mapping will involve ‘surface rock chip sampling, stream sediment sampling and soil sampling’ and ‘[g]eophysical surveying’ which involves ‘placing a machine on the surface and taking readings in a systematic fashion’ (Scriven affidavit [5]-[6]). During year one, access to the proposed licence will be by four wheel drive vehicle ‘keeping to existing tracks where possible’ and Mr Scriven expects no more than 6 people will be present at one time (Scriven affidavit [7]).
Mr Scriven explains that any drilling program will depend on the results of year one (Scriven affidavit [8]). Drilling would involve truck mounted drilling rigs, with a drill hole of approximately 8-20 centimetres depending on the drilling method, and an additional area 20 square metres of temporary disturbance (Scriven affidavit [9]). Drill holes would be blocked after any drilling and Mr Scriven does not anticipate any more than 6 people being present at any one time during a drilling program (Scriven affidavit [10]-[11]).
Mr Scriven states that it is not anticipated that crews would camp on the proposed licence area, given it is in proximity to suitable commercial camping facilities (Scriven affidavit [14]). Exploration after year 2 will depend on results from years 1 and 2, however will likely involve additional geophysical surveying and potentially further drilling (Scriven affidavit [15]).

Consideration

In conducting this inquiry I must look at what is likely to result from the grant of the licence and decide whether there is a real chance or risk of the interference or disturbance as outlined in s 237 of the Act and therefore whether it is an act that attracts 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, 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 NTA).

Predictive assessment for s 237

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

What sites or places are on the proposed licence?

An area or site need not be registered to be of particular significance for s 237(b) of the NTA, as the Tribunal must consider the evidence provided in each matter on its merits (see Yindjibarndi v FMG at [119]-[120], [126] and the cases therein). For a site to be of ‘particular significance’ under s 237(b), it must be known, able to be located and the nature of its significance explained to the Tribunal (Yindjibarndi v FMG at [17]).
The native title party identifies two sites of particular significance within the proposed licence: the Mitti Site and the Yalkawarra Site (NTP contentions [24]).

The Mitti Site

Leon Stokes provides that the Mitti site is a waterhole ‘around 10 minutes' drive west of Mitti Bore… on Banka Banka West Pastoral Lease in the exploration licence application area’ (L Stokes statement [13]). Mitti Bore can be seen on the mapping provided by the Territory and the native title party. He explains that the Mitti site is ‘where Kangawarla, little laughing boys were playing around’, is ‘very important for the Kangawarla story’ and ‘[p]eople have been living right next to the waterhole since a long time ago’ (L Stokes statement [14], [16]). Mr Stokes was taught about the site and how to care about it by his father and other law men and has visited many times to care for it and country (L Stokes statement [15], [17]-[20]).
Diane Stokes explains the Mitti site ‘represents the totem for the owners of this country, the little short man dreaming, or the laughing man’ (D Stokes statement [10]). She notes that if people damage the site, visit without her and her brothers or visit without permission then something will happen to them and the Kangawarla totem is ‘a very dangerous dreaming’ (D Stokes statement [15]-[16]).
In terms of location, Ms Stokes refers to a map attached to her statement and states ‘[i]f you have a look at the map, from that Mitti waterhole on top where the rock is, the hill goes further north west to Milyalyarra. That’s where the totem Kangawarla travelled along on that hill’ (D Stokes statement [11])
Mr Foster provides that the ‘Kangawarla dreaming came straight through that site Mitti’, that he will check on it and talk to the spirits whenever he has the chance and that it ‘would make people sick if they went… [there] without permission’ (D Foster statement [26]-[28], [31]).
Scriven submits that the information provided by the native title party suggests the Mitti site may be associated with the northernmost of the two sacred sites recorded in the Territory’s initial mapping (Scriven contentions [60]). Nevertheless Scriven contends that the native title party has provided insufficient material concerning the use of the Mitti site (Scriven contentions [61]). Assessment of particular significance is not necessarily focussed on use however.
The Territory adopts the Scriven contentions regarding the Mitti site and submits the Mitti site is actually located outside the proposed licence area (Territory contentions [36], [42]-[43]). The Territory submits if a site is outside the licence area ‘then it is not a site of particular significance relevant for the purposes of s 237(b)’ (Territory contentions [44]).
This would appear to be an incorrect statement of law (see Silver v Northern Territory at [89], [113]). A place can be found to be of particular significance whether it is located within the tenement or not. Instead, if the native title party can establish that a place outside of a tenement is of particular significance, it must demonstrate how the site would be ‘directly and physically affected by exploration activities’. This can include off site activities where they are an integral part of activities on site or downstream impacts as a result of activities within a tenement. (Silver v Northern Territory at [89]). I examine the location of Mitti at [55].
The Territory takes issue with multiple components of the evidence from the native title party. In response to the repeated use of the term ‘sacred’, the Territory asserts that s 237(b) is concerned with significant not sacred sites and that attempts to attach the word sacred without explanation cannot be accepted at face value (Territory contentions [64](b)). While it’s correct that s 237(b) is concerned with places of particular significance, a place can be regarded as being both sacred and of particular significance or alternatively, a place that is not regarded as sacred may still be regarded as a place of particular significance. Issues around the use of the word sacred are perhaps reserved for the Territory regulatory regime itself however, in which sacred has a particular definition.
The Territory also contends that the fact a dreaming may have passed through a site is alone not enough for it to be recognised as significant (Territory contentions [64](c)). I agree with this submission from the Territory; the particular significance of a place needs to be established in more specific terms.
The Territory contends that ‘any claim that the site is of particular significance due to the story concerning secret men’s only knowledge has not been made out on the evidence’ (Territory contentions [64](d)). This relates to the statements of Ms and Mr Stokes who express limitations to what they can depose on the Kangawarla dreaming by stating ‘[s]ome parts of this story are for men only so I cannot share them’ (L Stokes statement [14]) and ‘I cannot talk about this as it is for men’ (D Stokes statement [16]). They do however, provide a body of information for this particular place while expressing they cannot speak in more detailed terms.
The Territory further contends that the ‘contemporaneous’ evidence only shows three people knowing of the site and that they visit ‘infrequently’ (at [64](e)). I am uncertain what the expectations of the Territory may be on the numbers of deponents required. In matters before the Tribunal however, evidence from key deponents is more routine than the broader sweep that may be seen in native title litigation. Additionally, the frequency of visitation is not necessarily an indicator of particular significance; many places of particular significance are visited by very few people very seldomly due to cultural restrictions.
There is some conjecture related to the location of the Mitti site. The Territory submits the Mitti site is located outside the proposed licence (Territory contentions [36], [42]-[43]). In support of this contention the Territory notes that the maps annexed to the witness statements identify a ‘Mitty waterhole’ which lies approximately a kilometre to the west of, and outside, the proposed licence area (Territory contentions [36]).
The native title party submits that the ‘Mitty waterhole’ identified on the maps accompanying the witness statement is not the site identified as ‘Mitti’ in the statements themselves (NTP reply contentions [14]) although no alternative is marked on the maps. The native title party points to the statement of Mr Foster which provides at [24] that the Mitti site is ‘in the area the explorers want to look around in’ and the statement of Mr Stokes which provides at [13] the Mitti site is ‘on Banka Banka West Pastoral Lease in the exploration licence application area’.
I note that the L Stokes statement also provides that the Mitti site is a waterhole 10 minutes drive west of Mitti Bore (at [13]). Reviewing the map attached to the Leon Stokes statement shows that the mapped ‘Mitty Waterhole’ is, as the crow flies, approximately 10 kilometres directly due west of a place identified as Mitty Bore (LS Annexure 1), which would place it in the vicinity described by Mr Stokes.
Ms Stokes, referring to the same map which is also attached to her statement says ‘[i]f you have a look at the map, from that Mitti waterhole on top where the rock is, the hill goes further north west to Milyalyarra’ (D Stokes statement [11]). The Territory contends:
The location of the Mitti waterhole being on or near a hill which travels north west is consistent with the location depicted of Mitty Waterhole on the topographical mapping. The contour lines on the topographical map shows an elevated region consistent with the description given by Dianne Stokes (Territory contentions, [62]).
I have formed the view that the information provided contains the requisite specificity for the location of the site, but that the site is located outside of the proposed licence area. I make this finding based on the mapping attached to the statements of each of the native title party deponents and the descriptions provided within the statements of Ms Stokes at [11] of her statement and Mr Stokes at [13] of his statement. In this, I have also come to the view that the ‘Mitty Waterhole’ depicted on the maps accompanying the statements of the native title party witnesses is the same as the ‘Mitti’ site described by these same witnesses.
While the native title party contends the site is within the proposed licence (NTP reply contentions [14]), based on the materials before me I am satisfied it is located in excess of one kilometre to the west of the proposed licence.
Given this finding on location, despite the contentions of the Territory and Scriven, I am also satisfied of the evidence provided by the native title party of the particular significance of the Mitti site. As such, I am satisfied the Mitti site is a place of particular significance in accordance with the traditions of the native title party.

The Yalkawarra Site

Mr Foster provides that in ‘that area the explorers want to look is a sacred site called Yalkawarra’ which he has been to many times, last visiting about 3 or 4 years ago (D Foster statement [21]). He explains that there is a west side Yalkawarra and an east side Yalkawarra, with this being Yalkawarra west, and that the Kunapa dreaming, a dog dreaming, passes through the site (D Foster statement [21]-[22]).
Both the Territory and Scriven contend the native title party has provided insufficient information about the location of the site to respond or to assess the significance and likelihood of interference (Territory contentions [65], Scriven contentions [58]-[59]). The Territory and Scriven also contend that the evidence suggests that the Yalkawarra is not of significance apart from the fact that the Kunapa dreaming passes through it, which is not enough in itself to establish particular significance (Territory contentions [68], Scriven contentions [59]). The Territory also contends the location of Yalkawarra cannot be determined with any degree of certainty (Territory contentions [65]).
Having examined the materials before me, I have formed the view that the evidence related to Yalkawarra is presented in overly broad terms. I am unable to ascertain the specific particular significance of the Yalkawarra site and am unable to ascertain a location with a reasonable level of precision. As such, I am unable to determine that Yalkawarra is a site of particular significance.

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

The Scriven affidavit outlines the activities that are expected to take place on the proposed licence as discussed in paragraphs [37]-[40] of this determination. The native title party contends that as the sites are not marked, and the information provided concerning the area of Scriven’s proposed activities is limited, physical interference with the sites is likely (NTP contentions [32]-[36]). In this instance the native title party contends, noting the site access restrictions discussed in the witness statements, unauthorised access may constitute interference for the purposes of s 237(b) (NTP contentions [38]-[40]). This contention is consistent with FMG v Yindjibarndi at [76].
Any interference to be considered in this determination would relate to the Mitti site, which I have found to be of particular significance in accordance with the traditions of the native title party. I am also satisfied, given the materials before me, that the Mitti site is located approximately 1 kilometre to the west of the proposed licence.
Having considered the contentions and evidence, I am satisfied there is unlikely to be interference with the Mitti site. This is based on the location of the site outside of the proposed licence and the description of the activities of Scriven.
The activities would generally be considered low impact, however drilling is capable of creating significant disturbance to sites of particular significance, as are its downstream effects in the case of pollution or contamination where they may occur. Additionally, access to tenements is capable of causing interference to places of particular significance that are not situated on the tenement itself.
I am satisfied that neither will be the case here. Given the evidence provided by Scriven, I am satisfied there will be no physical ingress near or within the Mitti site when accessing the proposed licence, access looks to be via existing road ways to the east of the proposed licence. Additionally, I am satisfied that exploration activities do not present a real or likely risk of interference to the Mitti site based on the evidence provided in regard to the proposed activities. These will be confined to the area of the proposed licence, be of a relatively limited nature and are accompanied by a number of conditions that in my view, mitigate on site and downstream risks.

Section 237(a): is the grant of the licence likely to interfere directly with the native title party’s community or social activities?

In Tullock v Western Australia at [106], Deputy President Sumner concluded ‘the ordinary meaning of ‘to interfere’ in the context of s 237(a) is action which has the effect of hampering or affecting adversely any community activities of the native title holders. To meet the threshold of interference, the interference ‘must be substantial in its impact upon community or social activities. That is to say trivial impacts … are outside the scope of the kind of interference contemplated by this section’ (Smith v Western Australia at [26]).
While the Tribunal may take into account the non-physical or spiritual aspects of a community activity in assessing the risk and impact of interference upon it, there must also be evidence the relevant act is likely to result in direct physical interference with the activity itself (see Silver v Northern Territory at [50]-[62]).

What activities occur in the proposed licence area?

Top End submits that native title holders continue to visit, hunt and gather bush tucker and, camp in the proposed licence area and (NTP contentions [17]).
Ms Stokes provides that ‘[e]very month or two’ she visits sites including the Mitti site to ‘check everything is okay and make sure they are safe’ (D Stokes statement [12]).
Mr Stokes provides he ‘often go[es] hunting all around that country on Banka Banka West... We also go camping on our country and visit sacred sites’ (L Stokes statement [9]-[10]). Mr Stokes provides that he has visited the Mitti site near the proposed licence many times, most recently last year, and that when visiting they ‘have to drag bushes on the country and talk to the country (L Stokes statement [20]-[21]). He is concerned that mining companies would ‘spoil the water and hunting areas’ and states they ‘would feel very uncomfortable camping out there if explorers were around’ (L Stokes statement [12]).
Mr Foster discusses a number of activities that used to occur in or near the proposed licence area including holding ceremony at Banka Banka Station, approximately 6 kilometres to the north east, and Morphett Creek, which runs broadly east-west through the proposed licence (D Foster statement [16], Annexure 1).
Mr Foster provides he continues to go out on that country ‘whenever [he] can’ to care for sites and go hunting (D Foster statement [18], [26], [28]). Mr Foster discusses visiting Yalkawarra and Mitti and the activities that need to occur while visiting (D Foster statement [21]-[27], part. [28]). He last visited Yalkawarra 3-4 years ago and he visited Mitti last year (D Foster statement [21], [27]). Mr Foster provides he ‘would not want to go camping and hunting there or to visit our sites’ if the explorer was on that country (D Foster statement [20]).

Is the grant of the licence likely to interfere directly with the native title party’s community and social activities in a substantial way?

The native title party contends that the proposed licence ‘is an area of the native title holders’ country which is accessed regularly’ with native title holders living ‘nearby’ in Tennant Creek and the Warrego road block community (NTP contentions [19]). Tennant Creek looks to be approximately 80 kilometres to the south of the proposed licence and Warrego road is approximately 60 kilometres south at its closest. The native title party submits that exploration activities by Scriven ‘may disrupt the movement habits of the wildlife’ which is ‘likely’ to affect the willingness of native title holders to undertake the community activities outlined in the evidence (NTP contentions [20]).
I have examined the activities of Scriven in the previous section. Scriven also notes the regulatory regime and, in particular, the second schedule conditions which will be imposed on any grant (Scriven contentions [29]). These conditions require any grantee party ‘minimise’ their interference as well as convening a meeting with native title holders prior to beginning exploration, and having regard to any concerns which are raised (Scriven contentions [30]). Contravention of these conditions can result in cancellation of title and financial penalties, and Scriven contends that this regime ‘helps ensure’ that their activities will not be likely to interfere with the relevant social or community activities (Scriven contentions [31]-[34]).
Scriven submits that the native title party contentions show the proposed licence forms a relatively small part of the area the social and community activities are said to take place and it is unclear the extent to which some of the activities actually take place on the proposed licence (Scriven contentions [35]-[36]). Scriven also notes the social and community activities described by the native title party are ‘short term and periodic’. (Scriven contentions [37]-[39]). The Territory adopts these contentions (Territory contentions [34]) and further contends that the level of generality make it difficult to establish a risk of interference (Territory contentions [36]).
The Territory also submits that any exploration activities would be targeted, localised and intermittent and that the proposed licence is a limited area of the broader determination area (Territory contentions [39](a)-(f)). The Territory notes the standard conditions which would be placed upon the grant point against there being a real chance of interference (Territory contentions [39](g)).
Additionally, in relation to activities that may take place at the Mitti site, the Territory submits it is located outside the proposed licence, a contention I have agreed to previously. As such, the Territory contends, there can be no interference as the grant would give Scriven no rights in relation to that area (Territory contentions [37]).

In reply the native title party contends that the evidence shows that native title holders ‘frequently access the tenement’ and that where the witnesses refer to other knowledge holders and family members it can ‘reasonably be presumed’ these people are also members of the estate groups (NTP reply contentions [8]-[13]).
Finally Top End contends that while the Territory proposes to impose certain conditions upon the grant of the proposed licence, this will not sufficiently prevent interference (NTP reply contentions [30]). While the conditions require consultation, Top End contend they do not then require Scriven to take those concerns into account and do not apply at all when dealing with ’reconnaissance’ which is left to the discretion of the title holder (NTP reply contentions [31]).
Having considered the material before me, I have formed the view that the evidence submitted by the native title party concerning social and community activities is general in nature and has not established their active manifestation, as contemplated in Silver v Northern Territory on an area specific or limited to the proposed licence. That is, I accept what is described as being community and social activities for the purposes of s 237(a), however these activities would appear to occur over a broader area and not be specific to the area of the proposed licence.
In relation to the Mitti site, I accept the social and community activities described are specific to this site. As I have made the finding that this site is located approximately 1 kilometre to the west of the proposed licence however, I am not of the view that the activities proposed to be undertaken by Scriven will directly interfere or have a substantial impact on these community and social activities (see Smith v Western Australia [23], [26]). This is due to the location of the site, the type of activities to be undertaken and the regulatory regime of the Northern Territory.

Section 237(c): is the grant of the licence likely to involve major disturbance to the area of the licence?

In its contentions, Top End states that it ‘does not make any contentions in relation to sub section 237(c) of the NTA’ (at [5]) nor does it provide evidence in relation to this subsection. As such, there is no factual material before me which indicates the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). Therefore, applying the approach outlined in Ward v Western Australia at [26] I find that major disturbance under s 237(c) is unlikely.

Determination

I find the grant of EL32706 to Scriven Exploration Pty Ltd is an act attracting the expedited procedure.

Mr Glen Kelly
Member
28 April 2023