Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd & Another - [2022] NNTTA 51

NATIONAL NATIVE TITLE TRIBUNAL

Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd & Another [2022] NNTTA 51 (22 July 2022)

Application Nos: DO2021/0016, DO2021/0017

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (DCD2020/007, DCD2020/0008)

(native title party)

- and -

Baudin Resources Pty Ltd

(grantee party)

- and -

Northern Territory of Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Ms H Shurven, Member

Place: Melbourne

Date: 22 July 2022

i)

CORRIGENDUM

Correction to the Expedited Procedure Determination made on 22 July 2022. Paragraph 84 now reads as follows:

I find the grant of exploration licence EL32581 to Baudin Resources Pty Ltd is an act which attracts the expedited procedure. I find the grant of exploration licence EL32703 to Baudin Resources Pty Ltd is not an act which attracts the expedited procedure.

Helen Shurven
Member
27 July 2022

NATIONAL NATIVE TITLE TRIBUNAL

Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd & Another [2022] NNTTA 51 (22 July 2022)

Application Nos:

DO2021/0016, DO2021/0017

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

- and -

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

Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (DCD2020/007, DCD2020/0008)

(native title party)

- and -

Baudin Resources Pty Ltd

(grantee party)

- and -

Northern Territory of Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Member H Shurven
Place:	Melbourne
Date:	22 July 2022
Catchwords:	Native Title — Expedited procedure — Northern Territory — two exploration licences — s 237 of the Native Title Act 1993 (Cth) — operation of the Northern Territory regulatory regime — determination that the act is not an act attracting the expedited procedure — determination that the act is an act attracting the expedited procedure
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3 Heritage Act 2011 (NT) ss 111-113 Mineral Titles Act 2010 (NT) ss 11, 26, 27, 31, 102, 105, 118 Mining Act (NT) (Repealed) Mining Management Act 2001 (NT) ss 10, 35, 36, 37 Native Title Act 1993 (Cth) ss 29, 32, 237 Northern Territory Aboriginal Sacred Sites Act 1989(NT) ss 3, 5, 22, 27, 33, 34, 35, 36
Cases:	FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (FMG v Yindjibarndi) Foster on behalf of the Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Groups v Northern Territory of Australia (Helen Springs Pastoral Lease Proceeding) [2020] FCA 1551 (Foster v Northern Territory) Henderson on behalf of the Bamayu (Wurwanawanji–Yarrayarra), Bamayu (Titirlku), Marlinja, Ngapa Jangirulu, Walanypirri and Wilyuku Groups v Northern Territory of Australia (Powell Creek Pastoral Lease Proceeding) [2020]FCA 1550 (Henderson v Northern Territory) Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 Silver v Northern Territory [2002] NNTTA 18 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title party:	Eleanor Kay, Northern Land Council

Representative of the grantee party:

Bradly Torgan, Ward Keller

Representatives of the Government party:

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

REASONS FOR DETERMINATION

The Government of the Northern Territory (the Territory) proposes to grant exploration licences EL32581 and EL32703 to Baudin Resources Pty Ltd (Baudin/grantee party/GP). The Territory gave public notice of this proposal, as required by s 29 of the Native Title Act (Cth) (the Act/NTA). Included in each notice is a statement that the Territory considers the proposed grants attract the expedited procedure, which is described as follows in s 237 of the Act:
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.
An objection was made to the National Native Title Tribunal by The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (Top End) against the application of the expedited procedure to the grant of the proposed licences. Top End was appointed as the prescribed body corporate for the native title party who have rights and interests in that area of land. The appointment of Top End and information about the native title party is outlined in the Federal Court decisions of Henderson v Northern Territory and Foster v Northern Territory.
The objections were made on the basis of all limbs of s 237. During the inquiry, the native title party confirmed they did not pursue s 237(a) or s 237(c). On a common sense reading of the available information regarding s 237(a) and (c), I could find nothing that would offend those limbs. As such, the remainder of this determination focusses on s 237(b). I have been appointed by the President of the Tribunal to determine whether the proposed grants attract the expedited procedure (see s 32 of the Act).
The proposed licences are adjacent to each other, and the following details are pertinent to this inquiry:
(a)Exploration licence EL32581 is south-west of the geographical feature of Lake Woods/Powell Creek. It is just over 492 square kilometres in size, with non-exclusive native title rights and interests held by Top End.
(b)Exploration licence EL32703 is south of the geographical feature of Lake Woods/Powell Creek. It is just over 753 square kilometres in size. Top End hold predominantly non-exclusive native title rights and interests in the area, and a portion of exclusive native title rights and interests. EL32703 surrounds, but does not include, the Aboriginal community outstation of Jangirulu.
Native title party rights and interests
The native title rights and interests which are held by the native title party are described in Federal Court decisions (see [2] above), and may be summarised as follows, subject to the clarifying clauses in the decisions:
(9) ...the native title rights and interests…are the rights of possession, occupation, use and enjoyment to the exclusion of all others, including the right to access and take for any purpose the resources of those areas
(10/11)...the rights to:
(a)access, remain on and use the areas;
(b)access and to take for any purpose the resources of the areas; and
(c)protect places, areas and things of traditional significance.
(15) Without limiting the native title rights and interests described in clauses 9, 10 and 11 in any way, and without purporting to exhaustively describe the activities which those rights authorise or permit, the rights and interests referred to in clause 10…[enable the native title party] to:
(a)   travel over, move about and access those areas;
(b) hunt and fish on the land and waters of those areas;
(c)   gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) take and to use the natural water on those areas, but this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease/Pastoral Lease No. 948;
(e)   live and camp on the areas, and to erect shelters and other structures on those areas;
(f) light fires for domestic purposes;
(g) conduct and participate in the following activities on those areas:
(i)     cultural activities;
(ii)    cultural practices relating to birth and death, including burial rites;
(iii)   ceremonies;
(iv)   meetings;
(v)     teaching the physical and spiritual attributes of sites and places on those areas that are of traditional significance;
(h) maintain and protect sites and places on those areas that are of traditional significance;
(i)    be accompanied onto the land and waters by persons who, though not native title holders, are:
(i)   people required by traditional law and custom for the performance of ceremonies or cultural activities on those areas;
(ii)    people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; and
(iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas.

The Northern Territory Regulatory Regime

The regulatory regime in the Northern Territory centres around the following legislation (and associated regulations):
·Mineral Titles Act 2010 (NT) (MTA)
·Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act)
·Mining Management Act 2001 (NT) (MMA)
·Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act)
·Heritage Act 2011 (NT)
An exploration licence in the Northern Territory is granted under s 27 of the MTA. A grant (see s 26 of the MTA) entitles the holder:
·the right to occupy the relevant area;
·the exclusive right to conduct exploration for minerals in the area and other activities specified in s 31; and
·the exclusive right to apply for a mineral lease for all or part of the area.
Section 31 of the MTA provides the holder is allowed to conduct the following authorised activities:
(1)An EL gives the title holder the right to conduct activities in connection with exploration for minerals, including the following:
(a)digging pits, trenches and holes, and sinking bores and tunnels, in the title area;
(b)activities for ascertaining the quality, quantity or extent of ore or other material in the title area by drilling or other methods;
(c)the extraction and removal of samples of ore and other substances from the title area in amounts reasonably necessary for the evaluation of the potential for mining in the area.
(2)Despite subsection (1)(c), the title holder may remove larger samples of ore and other substances from the title area if the Minister:
(a)is satisfied it is appropriate in the circumstances to do so; and
(b)has authorised the removal.
The specific rights of the holder of an exploration licence and conditions that a holder of an exploration licence must comply with are set out in the MTA (as outlined throughout this decision). The MTA operates with the MMA. Before mining or substantial disturbance relating to exploration work commences in the Northern Territory, the grantee must apply for an Authorisation to carry out such activities, under the MMA (ss 4, 35). The Authorisation application must be accompanied by a Mining Management Plan (MMP) relating to the activities (s 36 of the MMA). Where the activities do not involve substantial disturbance of the site, an Authorisation is not required.
Baudin’s contentions (at 39) notes that ‘some current planned exploration activities for years 1 and/or 2 will require an Authorisation and MMP approved by the Minister’ (emphasis in original). Ms James (at 15) outlines that part of the MMP process includes indicating if sacred sites exist on the relevant area, and that minimum MMP standards include employee and contractor training and induction in relation to the management of risks associated with sacred sites.
Substantial disturbance under s 35 of the MMA includes activities such as:
·land clearing
·earthworks such as cutting, filling, excavating, or trenching
·above-ground works such as building access tracks and roads, buildings, bridges, railways, pipelines, telephone and power lines, conveyors and airstrips
·underground works such as digging tunnels and wells or laying pipelines, conduits and cables
·water works such as building dams, impoundments, canals, drainage works, or the alteration of river or creek banks, water courses and shore lines
·extraction of resources from the surface of the land, underground, riverbeds or undersea mining and quarrying
·stockpiling of materials such as ore, overburden, waste materials and by-products
·exploration works involving seismic lines, drill pads, drill holes - including vacuum, auger and RAB [rotary air blasting], grids, tracks, costeans and camp establishment
·active remote sensing and seismic techniques in water
·drilling and blasting
·any activity that is likely to have a significant impact on plants or animals.
The MMA (s 40) sets out what must be in a MMP, which may be summarised as including:
·a description of proposed mining activities
·plans of current and proposed mine workings and infrastructure
·details of environmental management systems
·a plan and costing of closure activities, and
·other information or plans required by the department.
Sites can be recorded or registered under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT). The Aboriginal Areas Protection Authority (the Authority) maintains a record of all sacred sites that it has identified in the Northern Territory. All sacred sites in the Northern Territory are protected by the Sacred Sites Act whether they are known or not. The sites that are listed in the record fall into two main categories:
·Registered Sites – sites which Aboriginal custodians have asked the Authority to protect, which have been assessed by the Authority and entered into the Register of Sacred Sites (which makes information about the location, boundaries and custodians of a sacred site publicly available). The Territory contentions notes (at 25) there are no registered sites under the Aboriginal Areas Protection Authority (the Authority), although there are recorded sites.
·Recorded Sites - sites which have been made known to the Authority from a variety of sources and where the Authority has not been able to assess the accuracy of the information. The Territory contentions note (at 26) the recorded sites under the Territory regime are not referenced in the native title party contentions.
I do not find that distinction of great assistance to my assessment of whether or not a site is of particular significance under s 237(b) of the Act. What I must focus on are the sites which the native title party have asserted are of particular significance, and make an assessment of those.
The Authority is established under s 5 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act). In November 2021 (in Territory Document 3), the Authority indicated there are restricted work areas in the areas of the proposed licences which are provided for in previously issued Authority Certificates. I do note that this documentation was qualified to outline it ‘was not necessarily an exhaustive list and there may be other sites’. That letter from the Authority also noted that ‘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 Authority (refer ss 22 and 25 of the Act, also see ss34 and 35 [the (Sacred Sites Act)]’.
Party materials refer to the relevance of an Authority Certificate. An Authority Certificate protects sacred sites by setting out conditions for using or carrying out works of an explorer, for example, on an area of land. One question I need to consider is the extent to which such mitigates against interference with a site of particular significance, as envisaged by s 237(b). As noted in the Top End reply (at 30), the Authority’s explanatory notes to their Abstract of Records states that ‘You cannot rely on an Authority Certificate that was issued to another person’. Baudin has not asserted the previous Authority Certificates were issued to their company. An Authority Certificate may be issued if an agreement has been reached between the Aboriginal custodians of any affected sites and the applicant for the Authority Certificate.
The Sacred Sites Act outlines the offences under that Act which prohibits certain activities related to sacred sites (see ss 33-35), and the defences available (see s 36). The prohibitions to certain activities may not apply to a person who holds and complies with an Authority Certificate (see for example s 22, which sets out what an Authority Certificate is). As outlined in s 25, the effect of the Authority Certificate includes being able to ‘enter and remain on that part or those parts of land the subject of an Authority Certificate...and do such things on the land as are reasonably necessary for carrying out that work or making that use of the land’.
A ‘restricted work area’, which is also referenced in party materials, is an area identified in an issued Authority Certificate – it shows an area which had restrictions on the type of activities that were or were not permitted in that area.
In relation to the Heritage Act, the Territory contentions (at 37) refer to ss 111-113, noting that this Act ‘protects, inter alia, Aboriginal archaeological places, objects and relics by making it an offence to damage such a place or object and removing part of a heritage place or object’. However, no party has specifically asserted this Act applies to the sites referred to in this inquiry, or outlined how this Act applies, apart from references to conditions to be applied to the grant of the proposed licences.
More on the regulatory regime is outlined in my consideration of interference (at [51]-[83] below.

Party Materials

Baudin provided contentions, mapping and an affidavit from their Exploration Manager, Sarah James. Ms James outlines that she previously held the position of Senior Exploration Geologist with Baudin.
Top End provided contentions and a reply to the Territory and Baudin materials, as well as mapping and the witness statements of Pompey Raymond and Dick Foster Ngamijarri Jangala. Mr Raymond is a senior man and native title holder and speaks on behalf of the native title party for the area of EL32581. Mr Foster is a senior man and native title holder and speaks on behalf of the native title party for the area of EL32703. Ms Eleanor Kay, representing Top End, has filed an affidavit outlining the circumstances of the preparation and settling of the witness statements, and I am satisfied as to the difficulties in having the witnesses sign the documents, given the remoteness, Covid restrictions, and technological issues. I accept the veracity of both witness statements.
The Territory materials for the proposed licences include:
·     Topographical and tenure maps
·    Abstract of Records from the Aboriginal Areas Protection Authority (the Authority/AAPA) (Abstract/s)
·    Baudin’s exploration licence application documents to the Territory
·     Conditions applicable to the grant of an exploration licence
·     Information about current and historic overlapping titles for the relevant areas

Conditions to be imposed on the grant of the proposed licences include those contemplated under ss 32 and 85 of the MTA, and those often referred to in party materials as first and second schedule conditions to the grant. Under s 105 of the MTA, the relevant Minister can cancel an exploration licence for various reasons, including contravention of a condition by the grantee party, and under s 147 penalties can apply for a breach. However, it must be noted that interference for the purposes of s 237 of the Act might not equate to a breach of a condition, and even if it does, the interference would likely have already occurred, rendering s 105 of the MTA less relevant for the purposes of an expedited procedure objection inquiry.

Baudin’s proposed activities

Baudin’s applications for the proposed licences (as required by ss 27 and 118 of the MTA and included in the Territory materials), were for a 6 year period, and the explorer will be looking for various metals. Proposed activities on each licence include: surveys (such as seismic, geochemical and airborne) to provide ‘targets that warrant drilling’; mapping; and rock chip and orientation soil sampling. No activities are outlined beyond year two on these applications. This is confirmed in Baudin’s contentions, and detail of the first two years of activity is provided in Ms James’ affidavit, together with general information about year three to six. On the basis of the materials provided, I have proceeded on the assumption that Baudin will exercise the full suite of rights available to them on grant of the proposed licences.
Baudin’s contentions (at 45-46) outline that ‘the AAPA abstract shows one recorded sacred site with a restricted work area on EL32581, located in the far north-eastern corner of the tenement’. This recorded site was not specifically referenced by the native title party in their initial inquiry materials in respect of its relationship with the AAPA, however, I have concluded it is likely this is the Walanypirri site (Hassett Bore) (see my consideration below at [45]-[50]). Baudin assert the entirety of EL32581 is covered by Authority Certificates available for public inspection and this is confirmed in mapping attached to the Authority’s Abstract (however, I note my comments at [15] above regards Authority Certificates).

SITES OF PARTICULAR SIGNIFICANCE

The legal principles which apply to this inquiry in general, and in relation to s 237(b), are summarised in Yindjibarndiv FMG (at [14], [17(a),(b),(d),(e)]-[18]) and I adopt those for the purposes of this decision.The native title party argue there are a number of sites of particular significance, as outlined below.
Territory contentions (at 24) argue the evidence regarding sites is too general to allow a conclusion they are sites of particular significance. They argue (at 39) that the ‘evidence does not specifically identify the locations of the sites nor are sufficient reasons provided as to why those sites are of more than ordinary significance to the Native Title Party’.
The Territory (at 57-59) outline their reasons as to why the sites described by Top End should not be found to be of particular significance, including that:
·apart from the Walanypirri site, the sites are not geographically located
·s 237(b) focuses on sites or areas of particular significance and not ‘sacred sites’
·some of the evidence goes more to community and social activities which are more relevant to s 237(a) than to s 237(b)
·assertions about dreamings passing through, or taking care of sites and knowing of them, are too general to support a conclusion of particular significance.
I deal with these assertions by the Territory in my consideration of each site at [31]-[50] below.

Punparkipunarta (related to EL32703)

The Punparkipunarta site and its location within EL32703 is described by Mr Foster (at 20 and 23). He specifically locates the site as being ‘in that area the explorer wants to look in’ (at 20) and describes the pathway of the Ngapa (rain) dreaming, including that it comes ‘through the Punparkipunarta site’ (at 24). Mr Foster describes that his personal totem comes from the Ngapa dreaming (at 9), and that the site is a Ngapa rain dreaming site, made of rocks on the side of a creek, between Jangirulu and Old Burke Station (at 23). He describes the pathway of the dreaming, that the dreaming travels through Punparkipunarta, and that he was taught about the site and the dreaming through inter-generational teaching (at 23-25). I am satisfied from the description of the dreaming pathway that it runs from the Old Burke ruins just outside of the proposed licence (to the south), up through the proposed licence. Mapping shows a number of creeks in the vicinity of the pathway as described. Mr Foster explains that permission is needed and there are protocols to be followed to visit the site, which he outlines (at 26-27).
The Top End reply (at 10) outlines how Mr Foster was taught about that place through intergenerational teaching, and that he and his sons continue on in that tradition. Baudin state (at 49 and 57) that aspects such as frequency of use of the site, by whom and for what purpose has not been made out. However, I find this is more relevant to s 237(a) than to s 237(b). For the latter, what I must focus on is whether or not the act of the grant of a proposed licence is likely to interfere with areas or sites of particular significance, in accordance with the native title holders traditions.
The Territory adopts (49)–(51) of the Baudin contentions in relation to this site, which refers to a lack of specificity of location, and information related to the use of the site. Baudin argue I should draw a negative inference from the lack of information provided by Top End. Baudin argue the only thing Top End have established is that ‘Punparkipunarta is a site on the Ngapa rain dreaming’ and ‘The mere fact that the Ngapa rain dreaming passes through an area is not sufficient to establish particular significance’. The Territory assert (at 41-42) the significance of the site’s link with the Ngapa dreaming is not made out by ‘simple association’, and outlines there is little explanation of the dreaming story and features associated with the dreaming, such as the site Punparkipunarta.
I am satisfied the dreaming path runs through the proposed licence, that the site is associated with the dreaming and that it is located on the proposed licence. I accept that certain permissions and protocols are required in relation to that site in accordance with native title party traditions, and this suggests to me it is a site which is of more than ordinary significance to the native title party. I consider this more under interference. It would have assisted had mapping given an approximate location on the licence, although I appreciate there are cultural sensitivities and I accept Mr Foster’s assertion that Punparkipunarta is on the licence. This assertion is consistent with features he outlines which exist on the licence, and the dreaming pathway. I am satisfied the evidence goes beyond mere assertion, albeit narrowly, for me to conclude this is a site of particular significance to the native title party.

Jangirulu (related to EL32703)

Mr Foster (at 28-32) provides a description of the Jangirulu site as a sacred spring within EL32703, just outside the outstation area (which is also known as Jangirulu, as confirmed in the Top End reply (at 15)) – for example, he states ‘It has been explained to me that the explorers can’t look around the Jangirulu outstation area. But that Jangirulu site is just outside that outstation area, it is in the area the explorer wants to look in’. Mr Foster describes that the old people had a ceremony ground at the outstation area of Jangirulu and that the rain dreaming travels through the site of Jangirulu up to the Lake Woods area (at 31). The Top End reply emphasises the area is of particular significance as it relates to ceremonial traditions of the native title holders (at 16).
The Territory adopts (52)–(55) of the Baudin contentions in relation to this site. They argue (at 43-44) it is not clear the site is within the exploration licence area, but rather assert it is more likely ‘within the community living area on NT Portion 2904 for the reasons stated by the Grantee Party at [52] – [54] of the Grantee Party Contentions’. If the site is outside that community living area, then it is within the boundary of EL32703, and the Territory argues in the alternative that ‘any particular significance attributed to the site was historic at the time ceremony was conducted there as explained by Mr Foster and it no longer retains that status’ (referring to Mr Foster’s evidence at 29). The Territory also repeats its contentions that the evidence is too general and does not establish this site is one of particular significance (at 44).
Mr Foster has been clear that the sacred spring is just outside the outstation area, and that it has important meaning in the context of the traditions of the native title party and is associated with Punparkipunarta, which is associated with the same rain dreaming. From Mr Foster’s description, I do not accept the Territory or Baudin’s argument that the significance has been lost. I accept the Jangirulu site is associated with that dreaming whose pathway is described and such pathway is consistent with features on mapping provided by parties during the inquiry. I conclude this is a site of particular significance to the native title party and that it is within the area available to Baudin on grant of the proposed licence - Mr Foster clearly separates the site from the outstation.

Muturru (related to EL32703)

Mr Foster (at 33) describes the Muturru site as a hill on the north-west side of Renner Springs, and that the hill can be seen from Renner Springs – he does not assert the site is on the proposed licence. Mr Foster (at 34-36) refers to the men only Kangawarla dreaming and its travel path, and that it is an important site for men’s business. The information about the travel pathway is broad, and given that Renner Springs is approximately 20 kilometres from the proposed licence, I cannot be confident of the location of the dreaming pathway or the site. Mr Foster outlines he has responsibilities to run ceremony for the dreaming associated with the site, and I appreciate the lack of detail may relate to the stated sensitivities associated with the site and the dreaming. Mr Foster explains he holds the knowledge of the site, which he intends to pass on to the right person (at 35). The Top End reply (at 18) argues that Mr Foster has set out the location of the site sufficiently, and that it is associated with men’s business.
Baudin states (at 49 and 57) that aspects such as frequency of use of the site, by whom and for what purpose has not been made out. However, as I noted above with respect to other areas, this is more relevant to s 237(a) than to s 237(b). For the latter, what I must focus on is whether or not the act of the grant of a proposed licence is likely to interfere with areas or sites of particular significance, in accordance with the native title holders traditions, and whether or not a site is of particular significance.
Given the broad nature of the evidence in relation to this site, I have not concluded it is a site of particular significance for the purposes of s 237(b).

Bamayu (related to EL32703)

Mr Foster (at 4 and 37) outlines that Bamayu is a ‘sacred site’ close to and just outside the area of EL32703 - he describes he went through the law there and it was a ‘very important ceremony place’ (at 17). Mr Foster (at 37) states it is ‘only a couple hundred metres away from north eastern boundary of the Tenement, about half way down’. He states it is close to the road going out to Jangirulu and is not easily identified (at 38). Mr Foster (at 41-42) describes the site as a spring and some trees near the old telegraph station, where ceremonies used to be held. He asserts (at 44-46) there is a rock near Bamayu that is butterfly dreaming, which requires cultural protocols to pass, and that the Kangawarla dreaming also comes through Bamayu. Mr Foster outlines (at 39) that if people damage the site, they would kill the spirit and there would be consequences for traditional owners.
The Top End reply (at 24) outlines that:
The NTP submits that Bamayu is a site of particular significance for the purposes of s 237(b) for the reasons set out in Mr Foster’s evidence, namely that Kangawarla dreaming is associated with this site and Mr Foster is Kurtungurlu in ceremony for Kangawarla, he was born at the site, went through ceremony there, and it is a ceremony ground. The particular significance of the site is further evidenced by Mr Foster’s statements about the native title holders’ traditional laws and customs in relation to the site, and the restrictions on visiting the site except where those laws and customs are followed and the consequences when those laws and customs are not followed.
The Territory adopts (62)–(63) of the Baudin contentions in relation to this site, noting it is accepted this is not within the proposed licence. While the Territory accepts this site may be of significance to Mr Foster, given his evidence, and given it is said ‘to be where the Kangawarla dreaming and Malimali dreaming pass through’, they argue the evidence is too general to support a conclusion that this site is of particular significance (at 49-52).
Given the detail provided about the features of this site, its location being identified, its relevance to the native title party traditions and Kangawarla dreaming, and the consequences to the native title party should cultural protocols not be followed, I conclude Bamayu is a site of particular significance.

Walanypirri (Pelican dreaming) site (related to EL32581)

Mr Raymond (at 20, 35, 37, 39-40) asserts this is an ‘important’ site within EL32581. He explains (at 43) that if a stranger went close to the Walanypirri site at Hassett Bore they might get sick - something bad might happen, for example, they might have an accident. Mr Raymond (at 35) identifies this place as lots of big white and black rocks at Hassett Bore – ‘The rocks are inside the little fenced yard for the bore, on the west side, only about 3 or 4 metres from the bore’.
Mr Raymond also explains (at 36) that the Pelican dreaming associated with this area travelled from Cattle Creek at Wavehill to the Walanypirri site near Hassett Bore. I note that mapping shows Hassett Bore to be inside EL32581, in the north east corner of the proposed licence. Mr Raymond explains the pathway of the Pelican dreaming in some detail and I am satisfied it travels through Hassett Bore on the proposed licence.
The Territory adopts (59)–(61) of the Baudin contentions in relation to this site, and accepts the site ‘is at Hassett Bore, clearly within EL(A)32581 and located in the northern extremity of the boundary of the Proposed Tenement’. The Territory argues ‘this would seem to be in a similar location to the recorded site depicted on the AAPA records at GVP Doc 3 which shows a recorded site with a restricted work area’. The Territory asserts that even though this site is said to be associated with the Pelican dreaming (at 56), the evidence is too general to support a conclusion it is a site of particular significance.
Baudin’s contentions (at 45) outline that the Authority Abstract shows one recorded sacred site and restricted work area on EL32581, located in the far north-eastern corner of the tenement. Baudin’s contentions (at 59-61) accept that ‘Mr Raymond identifies the Walanypirri site as "inside the little fenced yard for [Hasset Bore], on the west side, only about 3 or 4 metres from the bore", and that ‘Hassett Bore is identified as bore RN005687…in the very northeast of EL32581 corresponds to a recorded sacred site and restricted work area on the AAPA Abstract provided by the Government Party’.
The Top End reply (at 22) argues that the native title party ‘has not been provided with sufficient information to establish whether the recorded site...is Walanypirri’.
Given the detail provided about the Walanypirri site, the information provided about the location, and its significance to the native title party, I conclude it is a site of particular significance, which is distinguished from other sites and areas. I also conclude it is likely this is the same site which is recorded on the AAPA and covered by a restricted work area under an issued Authority, although it does not appear that Authority or restricted work area relates to this grantee party.

INTERFERENCE

Top End contentions (at 39) outline that ‘visiting these sacred sites without the permission of the native title holders and without following the proper cultural protocols could cause harm, including sickness, or death, in accordance with the traditional laws and customs of the native title holders’. I now assess their arguments in relation to interference with those sites I have concluded are of particular significance in accordance with s 237(b), namely:
·     Punparkipunarta (related to EL32703)
·     Jangirulu (related to EL32703)
·     Bamayu (related to EL32703)
·     Walanypirri (Pelican dreaming) site (related to EL32581)
In terms of interference, I assume parties will act within the Northern Territory regulatory regime – the question I need to address is whether, acting within this regime, there is likely to be interference with any of the sites of particular significance.
Top End contentions (at 41) outline that:
Given the nature of the sites of particular significance, in the absence of consultation and cooperation with native title holders, the Grant is highly likely to result in interference with those sites under the native title holders’ traditional laws and customs. This remains the case, despite the fact that the Tribunal may accept that the GP understands its obligations under the relevant statutory regime. Consultation with the native title holders, permission to go on country and enter the sites and observance of traditional laws and customs is required to avoid interference with sites of particular significance.
The Territory contentions (at page 3, and at 60-69) summarise their arguments in respect of interference being unlikely, and Baudin make similar arguments throughout their contentions (for example, 25-40) – these arguments include as follows:
·the protections afforded by the Territory’s regulatory regime
·the rights conferred on Baudin by the grants, and that Baudin could conduct such activities ‘so as to avoid interference with sites or areas of ‘particular significance’
·‘the extensive standard conditions that apply to exploration licences concerning the Grantee Party’s interactions with native title holders and minimising effects on native title interests and sites’, including condition 5 of Schedule 1, and condition’s 1, 6(a), 6(c), 7, 8, and 25 of Schedule 2 – I note the Baudin contentions (at 35-37) also assert some of these conditions as providing protections for sites of particular significance
·‘the presumption of regularity’, which assumes ‘the Government Party will exercise its powers and make decisions properly and in accordance with the law, and that a Grantee Party will not act contrary to the law and the regulatory regime, including conditions imposed, which govern the exercise of the rights under the grant’
·Baudin’s work program and likely activities
·‘any concerns held by the Native Title Party that sites are unmarked and workers may go through them without knowing can be addressed through consultations with the Grantee Party’ by virtue of the conditions to be imposed.
The Territory emphasise (at 27) the rigour of their regime, noting the comments in Silver v Northern Territory [2002] NNTTA 18; 169 FLR 1 at [156]:
...the Northern Territory has in place a well advanced, integrated and pro-active legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which, to a very large degree, has succeeded in dovetailing native title considerations into the fabric of the decision making process
However, it is worth noting that Silver v Northern Territory went on to say (at [157]):
It is of importance that section 24(e) [of the Mining Act, now repealed and replaced by the Mineral Titles Act which has similar provisions] provides that all exploration licences are subject to the statutory condition that no program of substantial disturbance will be permitted without the approval of the Secretary...
Obviously the fact that the Secretary can allow substantial disturbance to occur is of itself an issue. The government party has provided extensive material on how this process is managed, and emphasises the importance placed on rehabilitation. As previously noted, rehabilitation is a matter that can properly be taken into account, but it is not always an answer to the issue of major disturbance. Some disturbance may be so major that no matter what rehabilitation is proposed the land or waters may never recover or be made good again...

The question is whether, even when acting within the regulatory regime, the activities of an explorer are likely to cause interference with sites of particular significance of the relevant native title party. The assessment of interference is done in the context of the relevant native title party traditions, as expressed in the inquiry.
McKerracher J considered these issues in an appeal from a Tribunal decision of mine, in FMG Pilbara v Yindjibarndi. For example, (at [39]-[40]), the Judge outlined:
It must be emphasised that the task of the Tribunal in such an application is to make a predictive analysis. In this instance it was to take into account its apparent reliance upon the evidence given for [the grantee party] as to the precautions it would take and balance those against the nature and importance of the particular site in terms of the evidence given. That is clearly the approach it has taken and, in my view, it is the correct approach.
There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise. The task for the Tribunal is to make the predictive analysis as to whether the interference is likely to arise and to make a finding in relation to interference.
It is worth noting in full McKerracher’s further comments in that decision (at [71]-[76]):
The State complains that the Tribunal did not explicitly consider, and made no findings about, the nature of the likely impact or effect of [the grantee in that matter] proposed activities on any of the areas or sites, including whether and how the significance of any of the sites would be diminished by the proposed activities. According to the State, no examples were drawn upon by the Tribunal to illustrate how the sites might be affected in even the smallest way. The State complains that the Tribunal failed to carry out a fact based risk assessment as required by the Full Court in Little [Little v Oriole Resources Pty Ltd (2005) 146 FCR 576], and failed to consider relevant factors mandated by the word ‘interfere’.
Further, or alternatively, the State contends that the Tribunal considered that trivial impacts, or impacts which did not affect the significance of areas or site, were sufficient to engage s 237(b) NTA.
In the event that it is found that the Tribunal did carry out a predictive assessment, the State then argues that the Tribunal failed to apply the correct standard of probability, namely, a ‘real chance or risk’ of interference. It merely found that ‘inadvertent interference may occur’.
Dealing with the latter point briefly, taking the conclusion reached by the Tribunal entirely in context, it appears to me that it has applied the correct standard and, more particularly, that the sense in which it used the words ‘may occur’ was entirely consistent with there being a ‘real chance or risk’ in its assessment.
Dealing with the more substantive point, in my view, the nature of interference referred to under s 237(a) NTA is not the same as the nature of interference referred to under s 237(b) NTA. The risks addressed in the two subsections are quite different. The range of community and social activities referred to in s 237(a) NTA is very broad, whereas s 237(b) NTA is directed only at areas or sites of ‘particular significance’. It follows that interference that may be trivial in the context of a social activity may be substantial in the context of a site of ‘particular significance’. That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions. This, as suggested in Parker, may require an evaluation of the extent of particular significance of the site.
As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
The Territory argues (at 28) the Sacred Sites Act protects sites that are ‘sacred to Aboriginals or is otherwise significant 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’ (referring to the Sacred Sites Act s 3 and Land Rights Act s 3). They outline (at 29) the protections include the below prohibitions, and outline the penalties that apply if those protections are contravened, in summary:
·Prohibition on entry: s 33 of the Sacred Sites Act provides that a person (including bodies corporate) shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the Act or the Land Rights Act
·Prohibition on works: s 34 of the Sacred Sites Act provides that a person shall not carry out work on or use a sacred site
·Prohibition on desecration: s 35 of the Sacred Sites Act provides that a person shall not desecrate a sacred site
·Contravention of authority or Minister’s certificate: s 37 of the Sacred Sites Act provides that a person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister’s certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence.
·Contravention of s 69(1) of the Land Rights Act makes it an offence for a person to enter or to remain on a sacred site.
·The HeritageAct includes protection of Aboriginal archaeological places, objects and relics by making it an offence to damage such a place or object and removing part of a heritage place or object.
The Territory outlines the ways in which the provisions of the Sacred Sites Act and Land Rights Act, and the obligations under those provisions, are brought to the attention of a grantee party, including the conditions to be applied to a grant. The Territory also explains the mechanism of an Authority Certificate under the Sacred Sites Act, where the application for a certificate is received by the Aboriginal Areas Protection Authority (the Authority) who ‘must consult with custodians of sacred sites on or in the vicinity of the land to which the application relates’ (emphasis in original). The Authority Certificate can only be issued ‘if the work or use of the land could proceed or be made without there being a ‘substantive’ risk of damage to or interference with a sacred site on or in the vicinity of the land or an agreement has been reached between the custodians and the applicant’.
The Territory argues (at 31-32) that ‘the test applied by the AAPA before issuing an authority certificate, namely that there is not a substantive risk of interference or damage, is similar to that posed by s 237(b) of the NTA’ (emphasis in original). The Territory explains that ‘Not only does the site protection regime identify and protect sites, it adds additional protection through exclusion zones where appropriate (regardless of whether the site is registered or recorded)’.
The Territory challenges Top End’s statement about their regulatory regime (at 45 of Top End’s contentions for example), explaining that:
the process undertaken by the AAPA includes consulting with custodians to ensure accurate records of the locations of sites when reported. The majority of the Proposed Tenement areas have been covered by previous authority certificates as recently as 2011 which would have involved such consultations.
Top End argue that the information held on their records shows ‘sacred sites’ which do not appear on the AAPA Abstract of records provided in GVP Doc 3’. However, the Territory argue Top End have not adduced any evidence ‘other than the generic descriptions given by the lay witnesses’. I am satisfied that the evidence provided is not in the nature of lay witnesses, but rather from senior members of the native title party community who have particular and specialised knowledge of the country for which they speak.
The Territory assume the Authority consultations have been conducted ‘presumably’ with native title holders over the past 30 years, and it is open to them apply under s 27 of the Sacred Sites Act to the APAA to have a site registered. The Top End reply (at 33-34) argues that:
The consultation requirement...offer minimal protection to potential interference by the GP with sites of particular significance to the native title holders. Consultation is not sufficient to prevent interference to sites of particular significance because there is no requirement for the GP to act upon any requests or concerns raised by the native title holders at such a meeting.
Secondly, consultation need only occur if activities proposed are not reconnaissance, a matter which is left to the discretion of the title holder and for which no guidance is provided in the conditions.
The Territory contentions (at 30) outline that the effect of the regulatory regime, together with the conditions on exploration licences, is to put Baudin on notice of their obligations under the Sacred Sites Act and Land Rights Act, such that no defence would be available to Baudin in the event of interference. However, I must consider whether interference itself is likely, rather than what defences are available should interference occur.
Given McKerracher J’s comments in FMG Pilbara v Yindjibarndi, I must consider carefully the likely activities of a grantee party, together with the regulatory regime, and the nature of the sites of particular significance.
Baudin has indicated its activities, in the first year, will include rock sampling (considered to be non-ground disturbing) and crews of 2-4 people walking over selected areas for 3-5 days and over several visits (Ms James at 4-5). In the first or second year a seismic survey across the two proposed licences is likely to take place (Ms James at 11), which I understand may be substantial disturbance under s 35 of the MMA
In the second year, activities are also likely to include soil sampling and mapping, the former which:
involves taking a small amount of soil from the ground in a systematic way, such as in a grid pattern over a defined area every 100 to 200 meters. A soil sampling crew would likely be 2 to 4 people traveling by either ATV [All Terrain Vehicle] or a four-wheel-drive vehicle. I expect geological mapping during year 2 to take 5 to 7 days and a soil sampling program to take from 2 to 3 weeks (Ms James at 7-8).
I assume vehicles will use existing tracks as is proposed in year 1, and crews in year 2 will be at least walking off those tracks, as in year 1, so they can cover the grid pattern. It is not entirely clear if activity such as soil sampling falls into the category of ‘substantial disturbance’ (for example, see [11] above referring to ‘extraction of resources from the surface of the land’). The soil sampling may, but travelling on the surface of the land by foot would not fall into that category.
Drilling will occur in later years depending on what is found from these initial exploration activities, and it is estimated up to a total of 5 drill holes across the entirety of the licences would be made in years 3 and 4 if results from years 1-2 were positive, with further drilling in years 5 and 6, again depending on previous year’s results (Ms James at 12-13). The drill holes are described (Ms James at 14) as:
A mineral exploration diamond drill hole is approximately 10 cm in diameter. The diameter of the drill hole will reduce gradually down the hole. The total area impacted by a drill hole is approximately 15 to 25 square meters, which accounts for vehicle parking and a small sump to capture any water that comes to the surface during drilling.
Ms James notes (at 15, emphasis in original):
Baudin understands that it must have an approved Mining Management Plan (MMP) before it can establish seismic lines or undertake any ground-disturbing activity, including drilling.
Looking at the regulatory conditions, I note that much of the focus is on minimising harm or interference. Condition 5 of Schedule 1 focuses on the responsibilities of compliance and consequences of interference. There are a number of conditions which outline a grantee party to ‘have regard’ to their representations made during consultations with a native title party and requirements to consult (for example, Conditions 6(a)-(c) of Schedule 2), but nothing regards the outcome of such.
Other conditions referred to in the Baudin and Territory materials, such as Condition 25 of Schedule 2, go to issues after interference, such as rectification or rehabilitation. And Condition 7 and 8 respectively, of the same Schedule, focus on personnel and contractor education and the requirement ‘Prior to carrying out any work in the licence area the title holder [grantee party] must consult with the Aboriginal Areas Protection Authority and inspect the Register of Sacred Sites. A title holder wishing to carry out work may apply for an Authority Certificate’.
In the context of the Territory’s regulatory regime, and the native title party’s traditions, my assessment of the likelihood of interference in relation to each of the sites of particular significance is outlined at [73]-[81] below.

Punparkipunarta

Mr Foster (at 26-27) explains how this site could be interfered with in accordance with the native title holders’ traditions. This includes that if a stranger wanted to visit the site they would need to ask permission from the traditional owners, who would then need to accompany the stranger to the site, break branches and do clearing activities and then speak in language to the country and the spirit. This is emphasised in the Top End reply (at 11). Mr Foster distinguishes what needs to be done in relation to this site, which he refers to as a sacred site, with the surrounding areas, and explains how the rain dreaming is connected up to Lake Woods through sites such as Punparkipunarta.
Mr Foster clarifies (at 52) that ‘It would make people [traditional owners] sick if someone went to Punparkipunarta...without permission. Their [traditional owners] spirit might get sick or die’. Whoever damaged the site would get in trouble (at 53) as well as the traditional owners.
I am satisfied that even taking account of the Territory’s regulatory regime, for the area of Punparkipunarta, Baudin would, at a minimum, be able to enter and remain on the site. I am satisfied that given what has been outlined in the evidence, such would be interference in the context of the native title party traditions for this area.

Jangirulu

The evidence in relation to what constitutes interference in accordance with the native title party traditions is similar to that provided for Punparkipunarta – strangers need permission to visit (at 47), and a stranger may be able to walk past without knowing it was a ‘sacred site’ (at 49). Speaking in the proper way and with permission is a traditional requirement, as with Punparkipunarta. This is not surprising given the evidence outlines Punparkipunarta and Jangirulu form part of the same dreaming pathway and so are intimately interconnected. Evidence (at 53) is that if either of these sites ‘got damaged by a stranger, whoever did the damage would get in trouble. Also, the traditional owner’s might get in trouble for the damage too’. Further information is provided (at 54-55) that ‘There was damage to a sacred site at [another area] and a worker passed away. A lot of traditional owners got very sick after that site was damaged...some of them passed away. We still feel very bad about that site damage. It was very bad for the traditional owners’.
Based on the available evidence, I am satisfied that Jangirulu is likely to suffer from interference in the context of the native title party traditions for this area, in respect of s 237(b) of the Act.

Bamayu

It appears this site is not within the grant of EL32703. Nevertheless, in relation to interference, the Top End reply (at 25) outlines that:
...there is a very real chance that the GP could interfere with the Bamayu site considering it is close to the road going to the Jangirulu CLA, and this is one of the only roads leading to this section of the tenement so it is likely that the GP would use the road if they intend to access this part of the tenement. The NTP cannot draw a conclusion about whether or not this is the intention of the GP based on the evidence provided by the GP.
The Territory argues, as does Baudin, that the site will not be subject to interference as it is not on the area to be granted where Baudin will conduct exploration activities. Baudin states (at 63) there ‘is insufficient evidence to connect the exploration activity with a real chance or risk of interference with an area or site of particular significance’. I accept that argument, as some mapping appears to show more than one track providing access to this proposed licence, including those which come from the Stuart Highway which runs the full length of the proposed licence near the eastern boundary.
While the map in Document 4B from the Territory shows only one road in the general vicinity of the description of this site, even were Baudin to use that road, and assuming that road is the one which is near Bamayu, the grantee is unlikely to go off road in places outside the proposed licence, given it is not authorised to conduct exploration activity anywhere but within the boundaries of the granted area. Bamayu is outside the granted area, and I conclude it is unlikely to suffer from interference by activities of Baudin.

Walanypirri (Pelican dreaming) site

The Top End reply (at 22) outlines that if the recorded site in the Territory documents (see Document 3, for example) is the Walanypirri site, its status as a recorded site with a restricted work area would not protect it from potential interference by Baudin. I do note the rocks of this site are inside the bore fence. Mr Raymond refers to someone getting sick if they are not authorised to be near this site, and repercussions should someone damage the site (at 43-44). Mr Raymond’s evidence (at 41) focuses on the native title party rules and traditions applying to ‘visiting the site Walanypirri’.
As noted above, this site corresponds to a recorded site (see [13] above), and as such, under s 19F of the Sacred Sites Act, the Authority itself must consult with the custodians of sacred sites on or in the vicinity of the land to which the application relates that are likely to be affected by the proposed use or work. Condition 6(a) of the Second Schedule Conditions also outlines that:
The title holder [Baudin] shall, prior to the commencement of exploration activities other than reconnaissance, convene a meeting on the licence area (or the nearest convenient locality) with registered native title claimants or holders to explain the exploration activities.

Given the site is behind a fence, that Baudin are on notice of the previous Authority Certificate and restricted work area over the Hassett Bore area, and the Authority itself must consult with the native title party, I do not consider the Walanypirri site is likely to suffer from interference from the exploration activities of Baudin.

Determination

I find the grant of exploration licence EL32581 to Baudin Resources Pty Ltd is not an act which attracts the expedited procedure. I find the grant of exploration licence EL32703 to Baudin Resources Pty Ltd is an act which attracts the expedited procedure.

Ms Helen Shurven
Member
22 July 2022