Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd - [2023] NNTTA 37

NATIONAL NATIVE TITLE TRIBUNAL

Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd and Another [2023] NNTTA 37 (6 November 2023)

Applications No:

DO2023/0002; DO2023/0003

IN THE MATTER of an inquiry into expedited procedure objection applications

- and -

Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (DCD2014/003; DCD2014/006)
(native title party/Top End)

- and -

Baudin Resources Pty Ltd

(grantee/Baudin)

- and -

Northern Territory of Australia

(Government party)

DETERMINATION THAT THE ACT (EL33330) IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACT (EL33331) IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	6 November 2023

Catchwords:	Proposed grant of exploration licences – expedited procedure objection applications – intention to reduce licence area – mere intention not enough – site of particular significance on one licence – likelihood of interference with site
Legislation:	Aboriginal Land Rights (Northern Territory) Act1976 (Cth) (Land Rights Act) s 3 Heritage Act 2011 (NT) (Heritage Act) Mineral Titles Act 2010 (NT) (Mineral Titles Act) Mining Management Act 2001 (NT) (Mining Management Act) ss 4, 35, 36 Native Title Act 1993 (Cth) (the Act) ss 29, 30, 32, 237 Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act) s 3
Cases:	Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 131 (*Griffiths v BHP) Champion v Western Australia* [2005] NNTTA 1; (2005) 190 FLR 362 (*Champion v Western Australia) Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd* [2013] NNTTA 86 (*Cosmos v Croydon Gold) Daisy Lungunan on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd* [2012] NNTTA 24 (*Lungunan v Geotech International) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal CorporationRNTBC* (2014) 227 FCR 182; [2014] FCA 1335 (*FMG v Yindjibarndi) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia* [2015] FCA 560; (2015) 233 FCR 96 (*Hale v Western Australia) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another* [2015] NNTTA 49 (*Hale v Mings Mining Resources) Kevin Allen & Ors on behalf of Nyamal #1 v Diversified Asset Holdings Pty Ltd* [2020] NNTTA 32 (*Allen v Diversified Asset Holdings) Shirley O’Keefe on behalf of the Karrkarrkuwaja (Kalkalkuwaja) Group, The Mangurinji Group and the Kujuluwa Group v Northern Territory of Australia* [2014] FCA 154 (*O’Keefe v Northern Territory) Shirley Purdie & Others on behalf of Yurriyangem Taam v Raz Resources Pty Ltd* [2020] NNTTA 50 (*Purdie v Raz Resources) Smith v Western Australia* (2001) 108 FCR 442; [2001] FCA 19 (*Smith v Western Australia) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni* [2019] NNTTA 53 (*Tjiwarl v Gianni) Tony Cutta (on behalf of the Karrkarrkuwaja (Karrkarrkuwaja) Group, The Jukutayi Palyarinji Group, The Walanyja Group and the Kurtinja Group) v Northern Territory of Australia* [2014] FCA 157 (*Cutta v Northern Territory) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Fiddler’s Creek Mining Company Pty Ltd & Another* [2022] NNTTA 59 (*Top End v Fiddler’s Creek Mining Company) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Kess Diamond Marstella & Core Uranium Pty Ltd and Another* [2023] NNTTA 25 (*Top End v Kess Diamond Marstella) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another* [2016] NNTTA 16 (*Tjurabalan v Rich Resources Investments) Ward v Western Australia* (1996) 69 FCR 208; [1996] FCA 1452 (Ward v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (*Yindjibarndi v FMG) Yinhawangka Aboriginal Corporation RNTBC & Another v Korab Resources Limited & Another* [2022] NNTTA 69 (*Yinhawangka v Korab Resources*)
Representatives of the native title party:	Shekira Cardona, Martyn Gray, Todd Herskope and Eleanor Kay, Northern Land Council

Representative of the grantee party:

Bradly Torgan, Ward Keller

Representative of the Government party:

Jennifer Laurence, Department of Industry, Tourism and Trade

REASONS FOR DETERMINATION

This is a decision about whether the expedited procedure described in s 237 of the Act applies to the grant of two exploration licences sought by Baudin.
The Government party gave public notification of the proposed grants, and included a statement that it considers the grants attract the expedited procedure process. The effect of giving such a notice is that unless a native title party lodges an objection, the acts may be done without first requiring all the parties to negotiate in good faith.
The area of the proposed licences overlaps the land and waters subject to the following native title determinations:
(a)O’Keefe v Northern Territory; and
(b)Cutta v Northern Territory.

Top End is the prescribed body corporate for the native title holders under those determinations. Accordingly, Top End is the registered native title body corporate in relation to land and waters that will be affected by the grant of the licences.[1]
[1] See s 30 of the Act.
On this basis, Top End lodged an objection to the Government party’s inclusion of the expedited procedure statement for the grants.[2]
[2] See s 32(3) of the Act.
My task is to consider if the proposed grants satisfy s 237.[3] This section provides that 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.
[3] See s 32(4) of the Act.
In this matter Top End only makes contentions in respect of the land and waters overlapping EL33330. They contend the grant of that licence would be an act which is likely to interfere with sites of particular significance to the native title holders, offending s 237(b). Top End do not make any contentions in relation to sub sections 237(a) or (c) of the Act, or in relation to EL33331 whatsoever.
As the objection in relation to EL33331 has not been pursued and there is no evidence before me to suggest s 237 does not apply, my determination is that the grant of EL33331 to Baudin is an act attracting the expedited procedure.
The issue in this inquiry is then: is the grant of EL33330 likely to interfere with areas or sites of particular significance to the native title holders in accordance with their traditions?
For the reasons outlined below, my determination is that the grant of EL33330 to Baudin is not an act attracting the expedited procedure.

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

Under s 237(a), the Tribunal must consider whether the grant of a licence is likely to inference directly with the native title party’s community or social activities. The interference contemplated in s 237(a) must be substantial in its impact upon community or social activities and is not the same as the nature of interference under s 237(b).[4] Trivial impacts or impacts which are not relevant to the carrying on of such activities, are outside the scope. I must also have regard to the context of any interference by considering constraints which may already be imposed on community and social activities by third parties and external regulation.[5]
[4] See FMG v Yindjibarndi at [75].
[5] See Smith v Western Australia at [27] and Griffiths v BHP at [56].
The Tribunal takes a commonsense approach to evidence.[6] In this matter Top End do not make any contentions in relation to s 237(a) and there is nothing before me which indicates the grant of the licences is likely to directly interfere with the native title party’s community and social activities.Accordingly, I am unable to find there is any likelihood of interference under s 237(a) in respect of either licence.

Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title party, in accordance with their traditions?

[6] See Ward v Western Australia at [26].

The relevant principles for consideration of s 237(b) were summarised in Yindjibarndi v FMG as follows:[7]
(a) the area or site must be of special or more than ordinary significance to the native title holders (applying Carr J’s explanation in Cheinmora v Striker Resources at 34). In this regard I note it is well established that a site or area may be of particular significance without being recorded on the Government’s cultural heritage register (see Little v Lake Moore Gypsum at [67]);
(b) if an area or site is of particular significance, it must be known and must able to be located and the nature of its significance explained to the Tribunal (referring to Western Australia v McHenry);
(c) even slight interference to a relevant area or site may be unacceptable in the context of s 237(b) but the interference must involve actual physical intervention;

(d) generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. Examples given in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence etc’; and
(e) there must be a real chance or risk of interference with the area or site (referring to Smith v Western Australia and Little v Western Australia, adopting the “real risk” approach).
[7] Yindjibarndi v FMG at [17].

Top End provided a statement of contentions and witness statements of Louise Ward, a senior jungkayi[8] for the Karkarrkuwaja estate group, and her son John Ward, a Karkarrkuwaja man. Top End’s evidence focuses on two sites they contend are within the licence area and of particular significance to the native title party, referred to as 10 Mile Flat and the Sinkhole. They also make a bare contention there are several sites near the licence area that are of particular significance to the native title holders, but no further detail is provided in relation to such sites.

10 Mile Flat

[8] Top End describe this term to mean a traditional owner role with particular responsibility for sites. See NTP contentions at [18].

Mr Ward describes 10 Mile Flat as a very important men’s only restricted site located within the licence area.[9] His evidence details that this site is sacred, and the old people would sing there for ceremonial purposes.[10] He also details the site was used for initiation ceremonies for young men.[11] Ms Ward confirms the site is ‘a special place for the men under our law’.[12]
[9] Witness Statement of John Ward dated 11 May 2023 (JW Statement) at [21], [28].
[10] Ibid at [24].
[11] Ibid at [30].
[12] Witness Statement of Louise Ward dated 10 May 2023 (LW Statement) at [21].
Mr Ward's evidence surrounding the ceremonial rituals associated with 10 Mile Flat is detailed. He describes visiting the site as a little boy with the old people, who he identifies as a part of his mother's family. He talks about visiting the site with his uncle and father, and tells of the protective ceremony they would undertake because it is a special place of ceremony ‘[t]hey would rub a leaf, put it under their arm, rub it over me, blow smoke over me and then I could walk around it [the site] ok’.[13] Mr Ward’s evidence is that as a male traditional owner for the area, he can perform this ritual to others. He details that the purpose of the protective smoking ceremony is to warm you up ‘so that the old people (spirits) can't take you away’.[14]
[13] JW Statement at [25].
[14] Ibid at [36].
Mr Ward also provides evidence as to what happens if someone doesn't follow the traditional laws surrounding the site; if someone doesn't sing the right song, or perform the smoking ceremony, or goes where they shouldn't, then he says they are at risk of going mad and getting lost.[15] In her evidence Ms Ward confirms that the site is ‘dangerous - we might get mad and take off’.[16] Ms Ward also gives evidence 10 Mile Flat should not be dug because there are people buried there and at night their spirits protect the place, describing how her grandfather and his brother are still walking around there ‘protecting that place’.[17]
[15] Ibid at [27], [34] and [38].
[16] LW Statement at [26].
[17] LW Statement at [43].
Baudin contends that based on off-site research already conducted, it intends to amend the application for EL33330 to reduce the size of the tenement, by removing the area west of Tablelands Highway, where 10 Mile Flat is located, from the application. Baudin says that because of the intended reduction it will not be conducting on-site exploration activities in the vicinity of 10 Mile Flat, which they contend eliminates the real chance of risk or interference with the site.[18]
[18] Baudin contentions at [46].

In its contentions the Government party accepts that 10 Mile Flat is a site of particular significance to the native title party.[19] However, they also contend that based on the evidence of Mr and Ms Ward, providing a grantee follows the cultural protocols in place and obtains permission, it would be possible for a grantee to enter onto the area of the site.[20]
[19] GVP contentions at [45].
[20] Ibid at [49].
Although in some circumstances the existence of cultural protocols may be relevant, it is not the focus of this inquiry. Per s 237(b), in this matter I am required to consider whether an area or site of particular significance exists in the licence area, and if one or more areas or sites of particular significance do exist, whether the grant of the licence is likely to result in interference with such areas or sites. Even slight interference to a relevant area or site may be unacceptable in the context of s 237(b).[21]
[21] Yindjibarndi v FMG at [17].

There is no evidence before me that Baudin intends to follow any required cultural protocols, nor is there any evidence that the native title party would be prepared to conduct such protocols in these circumstances.
The Top End reply contends that whilst Mr Ward’s evidence outlines the traditional law, custom and cultural protocol that must be followed when approaching sacred sites such as 10 Mile Flat, access (if granted) is not the same as permission to explore.[22] I accept this contention.
[22] Reply at [7].
Based on the evidence before me, I accept that 10 Mile Flat is a site of particular significance to the native title party.

The Sinkhole

Top End also assert that another site located within the licence area, referred to as the Sinkhole, is a site of particular significance. The site is identified as located near the boundary of Anthony Lagoon and Brunette Downs, close to the Tablelands Highway, and south from the Calvert Road intersection.[23]
[23] LW Statement at [30]-[31].
Ms Ward details that the site is a Dreaming site:
[y]ou’re not allowed to go too close because there might be a snake in there and it will swallow you up. The old people they knew about that sinkhole too… [l]ike I said before, that place is part of a Dreaming and if they don’t go with permission, they might get swallowed up by a snake.[24]
[24] LW Statement at [33], [45].
Mr Ward refers to the Sinkhole as a place he visits to take a look at.[25] Mr Ward does not provide any additional detail as to why the site is of particular significance to the native title holders.
[25] JW Statement at [40].
Baudin and the Government party contend the evidence provided by Top End is insufficient to establish the Sinkhole as a site of more than ordinary or particular significance.[26]
[26] Baudin contentions at [54]. GVP contention at [53].
The Government party contends that the evidence is that the Sinkhole is a Dreaming site, but there is no further evidence regarding the significance of the site to the native title party. They assert that a contention that a site is a Dreaming site does not, of itself, establish that it is of special or more ordinary significance to the native title holders.[27]
[27] GVP contentions at [53].
The Tribunal has previously found that sites and areas forming a part of a Dreaming track or songline are of particular significance for the purposes of s 237(b).[28] However, the particular significance of a site or area associated with a Dreaming track or songline must be sufficiently explained. The fact that a site is connected to a Dreaming track or songline alone is insufficient, its particular significance to the native title holders in accordance with their traditions must also be explained.
[28] See Allen v Diversified Asset Holdings; Yinhawangka v Korab Resources; Tjurabalan v Rich Resources Investments; Top End v Kess Diamond Marstella.
In this matter, the evidence before me is insufficient to establish the Sinkhole as a site of more than ordinary or particular significance to the native title holders in accordance with their traditions.

However as set out above, I accept that 10 Mile Flat is a site of more than ordinary or particular significance to the native title holders in accordance with their traditions. I must now make a predictive assessment as to whether the grant of the licence is likely to interfere with this site of particular significance.

Is the grant likely to interfere with such sites?

When considering the likelihood of interference, I must first return to Baudin’s contention it intends to amend the application for EL33330 to reduce the size of the tenement by removing the area west of Tablelands Highway where 10 Mile Flat is located, and that therefore there will be no real chance of risk or interference with the site.[29] This contention was also relied upon by the Government party in its own contentions.[30]
[29] Baudin contentions at [46].
[30] GVP contentions at [59].
As set out in the matter Hale v Western Australia,[31] when considering s 237(b), the scope of the inquiry is the whole of the area specified in the s 29 notice. I am unable to base my determination in this matter on an intended amendment to reduce the licence area, I must consider the whole of the area specified in the s 29 notice in relation to EL33330.
[31] Hale v Western Australia
There are many Tribunal decisions where parties have sought to lead evidence based on a proposed ‘excision’ or other reduction in the licence area and this has not been accepted.[32] Further, an intention to reduce the licence area is not the same as reducing the area or applying to reduce the area through an excision request or similar means. No matter how well-meaning a grantee is, a statement of intention, either to reduce an area or not explore certain areas, can change.[33] In this matter I do not accept that there is no real chance of risk or interference with 10 Mile Flat arising from the grantee’s contention that they intend on apply to reduce the grant. Such an intention is non-binding and non-enforceable.

The Northern Territory regime

[32] See Purdie v Raz Resources; Hale v Mings Mining Resources.

[33] See Tjiwarl v Gianni at [67] and [106].

Baudin's evidence is that the year one work programme will consist primarily of off-site research, and on-site geological and regolith mapping, with geological mapping usually involving the collection of a select number of rock chip samples from the surface. In year two, Baudin contends geological mapping will continue, with other low impact on-site activities including soil sampling and geophysical surveying. For the remainder of the grant, Baudin contends that what will occur will be result dependent. As a result, the Tribunal has limited evidence before it of Baudin’s operations beyond year two. What is contended is that if the results of years and one and two are positive, years three and four will involve exploration drilling, with further drilling likely to occur again in years five and six if those drilling results are promising.[34]
[34] Baudin contentions at [8]-[14].
What Baudin contend, in essence, is that the extent to which any rights granted will be fully exercised, will be dependent on results, particularly the results obtained during years one and two. Considering the limited evidence, and this contention made by the grantee, the issue of likelihood must be assessed by reference to the regulatory regime in force in the Northern Territory, and assuming that whatever legal rights that would be given to Baudin under the licences will be exercised to the maximum legal extent beyond year two. Such rights will be the rights available to Baudin and they have not asserted any clear intention to limit such rights, other than the intention to reduce the area of the application (which I deal with above at [32] to [34]).
The grant of a licence under the Mining Titles Act authorises the holder the exclusive right to explore for minerals in the licence area and to conduct activities in connection with such exploration, including (but not limited to) digging pits, trenches and holes, sinking bores and tunnels, geological survey, rock sampling, drilling, and removal and testing of ore or other substances, for an initial term not exceeding six years with the option to apply for renewal(s).
In addition to the Mining Titles Act, the following legislation and associated regulations are relevant when considering the regulatory regime in place in the Northern Territory:
a)Sacred Sites Act;
b)Mining Management Act;
c)Land Rights Act; and
d)Heritage Act.
The specific rights and conditions that a holder of an exploration licence must comply with are set out in the Mining Titles Act, which operates alongside the Mining Management Act. Before carrying out mining or exploration work causing substantial disturbance a grantee must apply for an Authorisation, accompanied by a Mining Management Plan relating to the activities.[35] In summary, substantial disturbance under s 35 of the Mining Management Act includes activities such as:
[35] See Mining Management Act ss 4, 35, 36.
(a)land clearing;
(b)earthworks such as cutting, filling, excavating, or trenching;
(c)above-ground works such as building access tracks and roads, buildings, bridges, railways, pipelines, telephone and power lines, conveyors and airstrips;
(d)underground works such as digging tunnels and wells or laying pipelines, conduits and cables;
(e)water works such as building dams, impoundments, canals, drainage works, or the alteration of river or creek banks, water courses and shore lines;
(f)extraction of resources from the surface of the land, underground, riverbeds or undersea mining and quarrying;
(g)stockpiling of materials such as ore, overburden, waste materials and by-products;
(h)exploration works involving seismic lines, drill pads, drill holes - including vacuum, auger and RAB [rotary air blasting], grids, tracks, costeans and camp establishment;
(i)active remote sensing and seismic techniques in water;
(j)drilling and blasting; and
(k)any activity that is likely to have a significant impact on plants or animals.
It is well established that the presumption of regularity applies when making the predictive assessment required by s 237 of the Act. Unless there is evidence to the contrary, the Tribunal will act on the basis that the Government will exercise its powers, including making discretionary decisions, properly and in accordance with the law; and that a grantee party will not act contrary to the law and regulatory regime, including conditions imposed governing the exercise of any granted rights.
There is no evidence before me to displace that presumption of regularity. Nevertheless, even acting within the boundaries of the law, the grant of an exploration licence enables a grantee to do various activities, including drilling, sinking bores and digging pits.
The Government party has provided evidence of the template conditions applicable to the grant of exploration licences in the Northern Territory, referred to as the ‘First and Second Schedule Conditions’. In particular, the Second Schedule deals with the requirements for consultation with native title parties, including convening meetings, site protection and substantial disturbance (amongst other matters). The Government party points me to the condition that a grantee must have regard to representations made by the native title holders at a consultation meeting, including dealing with access procedures.[36] Although consultation is required, and the grantee must have regard to representations, there is no obligation to stop activities if the native title party says there will be interference with, or disturbance to, sites, or if access is not granted.
[36] GVP contentions at [62].
The Government party also contends that upon grant they would direct Baudin’s attention to their obligations under the Sacred Sites Act and Land Rights Act, and that notice, together with the effect of the regulatory regime and conditions of grant, would mean that no defence would be available to Baudin in the event of interference.[37] However, as contended by Top End, I must consider whether interference itself is likely, rather than what defences are available should interference occur.[38]
[37] GVP contentions at [31].
[38] Top End v Fiddler’s Creek Mining Company at [37].
Top End also submit that without conducting surveys in the licence area Baudin may inadvertently disturb a site, as without conducting a survey or obtaining an Aboriginal Areas Protection Authority (AAPA) Authority Certificate a grantee cannot know the exact location of sites of particular significance.[39] Baudin do not indicate they intend on conducting surveys, but do note their obligations to consult the AAPA register and prior Authority Certificates for the licence to avoid areas, until such time as an Authority Certificate or other legally appropriate consent may be obtained.[40] Whilst the Tribunal, in undertaking its predictive assessment, can have regard to the attitude of a grantee party to enter into a heritage protection agreement, and other evidence directed towards their attitude to the protection of Aboriginal heritage and sites, the weight to be given to those matters will depend on the overall circumstances.[41]
[39] Reply at [31].
[40] GP contentions at [37].
[41] See Champion v Western Australia at [29]-[35]; Yindjibarndi v FMG at [32].
The Government Party’s evidence includes an AAPA Abstract Record detailing the existence of two recorded sacred sites and three restricted works areas recorded within the licence area. Section 3 of the Sacred Sites Act defines sacred site to mean ‘a sacred site within the meaning of the Land Rights Act.’ Section 3 of the Land Rights Act provides:
"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 the sites and restricted work areas identified in the abstract are located in the vicinity of the Tablelands Highway. A restricted work area is an area subject to an issued Authority Certificate that had restrictions imposed on the kinds of activities that were permitted (or not permitted). I have not been provided with any additional material regarding these restricted areas, or the basis upon which the restrictions were placed.
Baudin acknowledges its legal obligations regarding the AAPA known sites, and contends it has no current intention to undertake exploration in the vicinity of those sites.[42] I note that this intention is clarified as a current intention, reinforcing the position that the full extent of any rights granted may be utilised in the future, after the grantee assesses and considers the results.
[42] GP contentions at [42].
Baudin also makes contentions in relation to whether the recorded AAPA sites appear to correlate with the sites of particular significance contended by Top End. As the grantee correctly contends it cannot be assumed that a registered site is of particular significance without more. In this matter I do not make any findings in relation to whether the AAPA recorded sites correlate with the evidence put for the native title party. Rather, whilst I note and have regard to the existence of the recorded sites, my decision in this matter is made giving weight to the specific evidence put before me by Top End in relation to sites of particular significance, in particular 10 Mile Flat.
Section 237(b) is directed to the likelihood of interference, not its scale, and interference that may appear trivial to a person not a member of a native title party, may be substantial having regard to the native title party’s traditions.[43]
[43] FMG v Yindjibarndi at [75].
As set out above, I must consider the whole of the area specified in the s 29 notice in relation to EL33330 when considering the likelihood of interference. I do however note Baudin’s contention that it does not intend to explore west of the Tablelands Highway. As discussed above, intentions as to where to explore may change and are non-binding on the grantee, but even putting that aside there is not enough detail before me regarding Baudin’s exploration program to satisfy me that interference with 10 Mile Flat is unlikely. For example, access routes and methods, particularly beyond year two, are not provided, nor is there any evidence before me in relation to where on the licence the exploration drilling may occur or target. These matters may be the subject of more detailed good faith discussions between the parties under the normal negotiation procedure set out in the Act.
In this matter, I am satisfied there is a likelihood of interference with an area or site of particular significance to the native title party located within the area of licence EL33330. The evidence before me was not sufficient to establish the Sinkhole as a site of more than ordinary or particular significance, however, based on the evidence I accept that 10 Mile Flat is a site of particular significance to the native title holders in accordance with their traditions. Weighing up all the evidence in this matter, I also find there is a likelihood the grant of EL33330 will interfere with this site of particular significance.

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

The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters. The relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned.[44]
[44] See Cosmos v Croydon Gold at [29]; Lungunan v Geotech International at [50].
Top End do not make any contentions in relation to s 237(c) and there is nothing before me which indicates the grants of the licences are likely to involve major disturbance to any of the land or waters concerned. On this basis I am unable to find major disturbance is likely.

Determination

The determination of the Tribunal is that the grant of EL33330 to Baudin is not an act attracting the expedited procedure.
The determination of the Tribunal is that the grant of EL33331 to Baudin is an act attracting the expedited procedure.

Lisa Eaton
Member
6 November 2023