Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Fiddler's Creek Mining Company Pty Ltd - [2022] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Fiddler's Creek Mining Company Pty Ltd & Another [2022] NNTTA 59 (26 August 2022)

Application Nos:

DO2021/0011, DO2021/0012, DO2021/0014

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (DCD2012/004, DCD2012/009, DCD2013/011)

(native title party)

- and -

Fiddler's Creek Mining Company 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:	26 August 2022
Catchwords:	Native Title — Expedited procedure — Northern Territory — three exploration licences — s 237(a) and s 237(b) of the Native Title Act 1993 (Cth) — operation of the Northern Territory regulatory regime — determination that the act is an act attracting the expedited procedure for two licences - determination that the act is not an act attracting the expedited procedure for one licence
Legislation:	Heritage Act 2011 (NT) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3, 69 Native Title Act 1993 (Cth) ss 29, 32, 237 Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 3, 33, 34, 35, 37
Cases:	Ellaga v Northern Territory of Australia [2012] FCA 665 (Maryfield Pastoral Lease) Ellaga v Northern Territory of Australia [2012] FCA 670 (Kalala Pastoral Lease) Morgan v Northern Territory of Australia [2013] FCA 1078 (Sunday Creek Pastoral Lease) May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 113(Rosas v Northern Territory) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd & Another [2022] NNTTA 51 (Top End v Baudin) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title parties:	Harriet Roberts, Northern Land Council
Representative of the grantee party:	Holly Edgar, Australian Mining & Exploration Title Services Pty Ltd
Representatives of the Government party:	Stewart Bryson and Ruby Rayner 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 EL32748, EL32749 and EL32751 to Fiddler's Creek Mining Company Pty Ltd (Fiddler’s Creek/grantee party). The Territory gave public notice of this proposal, as required by s 29 of the Native Title Act (Cth) (the Act). 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 parties who have rights and interests in that area of land. Information about the native title parties, including the rights and interests they hold, is outlined in the Maryfield Pastoral Lease (DCD2012/004), Kalala Pastoral Lease (DCD2012/009) and Sunday Creek Pastoral Lease (DCD2013/011) Federal Court decisions.
The objections were made on the basis of all limbs of s 237, and were initially applied to five tenements that are adjacent or in close proximity to each other. Ultimately objections against the application of the expedited procedure to two of the tenements were withdrawn by Top End, leaving the three tenements which are subject to this inquiry. During the inquiry, the native title parties confirmed they did not pursue s 237(c). On a common sense reading of the available information regarding s 237(c), I could find nothing that would offend that limb. As such, the remainder of this determination focusses on ss 237(a) and 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 following details are pertinent to this inquiry with respect to each licence:
(a)Exploration licence EL32748 is just over 822 square kilometres in size, with non-exclusive native title rights and interests held by Top End, as described in the relevant Federal Court determinations.
(b)Exploration licence EL32749 is also just over 822 square kilometres in size, with non-exclusive native title rights and interests held by Top End, as described in the relevant Federal Court determinations.
(c)Exploration licence EL32751 is just over 746 square kilometres in size, with non-exclusive native title rights and interests held by Top End, as described in the relevant Federal Court determinations.

The Northern Territory Regulatory Regime

I adopt my comments and reasoning from Top End v Baudin in relation to the Territory regulatory regime (at [6]-[9], [11]-[15] and [17]-[18]).

Party Materials

Top End provided contentions and mapping, with the statements of Mr Thomas Farrell and Mr Steven Anderson in support, as well as a reply to the Territory and Fiddler’s Creek materials. Mr Farrell and Mr Anderson are native title holders who speak for the areas of the proposed licences.
Fiddler’s Creek provided contentions and the exploration rationale and work programmes for each proposed licence. They clarify in their materials they will be conducting exploration works for base and precious metals, rather than for hydrocarbons or oils. They also note Fiddler’s Creek ‘acknowledges and respects the statements made by Mr Anderson for the Lijiwina sacred site and Mr Farrell for the Kunakinga, White Cliff and Marrikin [sites]’. These are the sites which are asserted by the native title parties to be of particular significance, and I consider them below under s 237(b) of the Act.
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)
·    Heritage database extracts
·    Fiddler’s Creek 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

Fiddler’s Creek proposed activities

The grantee party submissions outline that in year 1 geochemical samples will be taken, and in year 2 there will be 2 drill holes made for testing purposes. The same information is provided for each of the proposed licences in terms of likely activities. No further information is provided beyond year 2. I accept the native title parties argument in their reply (at 9-10) that the grantee may exercise the full rights available to it under the proposed grants, albeit noting their intention is to ‘meet with Mr Anderson and Mr Farrell before any exploration works commence to obtain advice on areas where exploration should not occur’.

IS THERE LIKELY TO BE INTERFERENCE WITH THE CARRYING ON OF COMMUNITY OR SOCIAL ACTIVITIES OF A NATIVE TITLE PARTY - Section 237(a)?

The Tribunal balances a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Yindjibarndi v FMG at [16]). The test is outlined in Rosas v Northern Territory (at [67]):
The leading case on the proper interpretation of section 237(a) is Smith v WesternAustralia [2001] FCA 19; (2001) 108 FCR 442. French J made these observations about the proper interpretation of this paragraph (at 451):
"The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section."
If the evidence about the alleged activities is general and unspecific, then this is insufficient to find that the grant will create such direct or substantial interference (Freddie v Western Australia at [13]).
Mr Anderson refers to intergenerational teaching (at 9) and refers to ELA32751 in broad terms in relation to social and community activities, however, the main focus of his evidence is in relation to s 237(b) which I outline in my consideration of that limb below.
Mr Farrell speaks for ELA32748 and ELA32749. He outlines hunting activities at places on ELA32749 (at 21-23, 51) which are inside and outside the proposed licence, and rules to follow regarding the trees at the place inside the proposed licence (at 22, 30 and 54). Bush medicine can be gathered from the place on that licence and some of the surrounds (at 26-31). Gathering wood and making tools is also an important community and social activity (at 32-38) and intergenerational teaching is referenced by Mr Farrell as being important to the community. Reference to these activities is made only in broad terms to the site on ELA32749 and little reference is made to ELA 32748. It appears these activities are conducted widely across the native title parties determined lands, and while specific places are noted, they are either off the licences, or on the licences. However, it does not appear social and community activities are conducted intensively on the licences, such that exploration activities would be likely to interfere with same substantially, even taking into account the native title parties hunting, gathering and other relevant rights and interests as outlined in each of the Federal Court determinations (see [2] above).
The Territory argues (at 20 and 32) there are no nearby Aboriginal communities to the proposed licences, and that only Mr Farrell’s statement addresses s 237(a). The Territory argue (at 30 and 32) that the activities an explorer is authorised to conduct, and the ‘localised and periodic’ nature of such, is not likely to interfere with community and social activities of the native title party. The Territory argues (at 31) the community and social activities outlined are ‘not concrete and specific in nature’ and are ‘general in nature, short term, intermittent and indeterminate in their location’. The Territory argues (at 32-33) that the activities are conducted over a much wider area than the proposed licences, and the frequency or duration of their conduct is also not outlined.
The Top End reply (at 6) argues that ‘even exploration activity which is limited in duration, impact area and ground disturbance has the potential to impact the community or social activities of the native title holders’. Mr Farrell is concerned (at 42) that noises and drilling/hammering in the ground would scare away wildlife and interfere with hunting. I must assess community and social activities in the context of s 237(a) and the interference must be direct and substantial. Given the broad nature of the activities, and the size of the proposed licences, and given that exploration activities are unlikely to be conducted over the whole of a licence at any one time, I do not believe exploration activities would lead to substantial and direct interference.

IS THERE LIKELY TO BE INTERFERENCE WITH ANY AREAS OR SITES OF PARTICULAR SIGNIFICANCE, IN ACCORDANCE WITH THE TRADITIONS OF A NATIVE TITLE PARTY - Section 237(b)?

The legal principles which apply to an expedited procedure objection 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.

Are there any sites of particular significance?

Both Mr Farrell and Mr Anderson’s statements address s 237(b). They assert the following are sites of particular significance on the proposed licences, as follows:
·White Cliff (related to ELA32748)
·Marrakin (just outside of ELA32749)
·Lijiwina (related to ELA32751)
·Kunakinga waterhole (related to ELA32749)
An overall comment from my consideration of the evidence in relation to these sites is that dreamings are asserted to travel through the proposed licences, and intersect with or be associated with each of these sites. I am careful not to reference the dreamings as there appears to be cultural sensitivities associated with them, however, I have assessed the information provided and outline sufficient detail so my reasoning and conclusions are clear.

White Cliff

Mr Farrell describes White Cliff (at 55) very broadly as an ‘important place’ associated with a named dreaming. However, there is little further information about this site and I could not conclude it is a site of particular significance in accordance with the native title party traditions. I have no doubt it is of importance to the native title party but it has not reached the threshold of a site of particular significance for the purposes of s 237(b) in this inquiry.

Marrakin

In relation to Marrakin, Mr Farrell (at 23, 57-60) confirms it is approximately one kilometre from ELA32749, just outside the eastern boundary, and is the focus of hunting and gathering activity (as outlined in my consideration of s 237(a) above). The site is described briefly, and there is little information about how or why it is a site of particular significance with respect to a proposed licence in this inquiry, or in accordance with the traditions of the native title party.

Lijiwana

Mr Anderson describes Lijiwana as being between Larrimah and Daly Waters, which is a distance of over 60 kilometres, with some of that area covered by EL32752 mainly, and some not covered by any of the proposed licences. It is said that this site is on EL32751, although EL32751 is not directly in between Larrimah and Daly Waters, as the crow flies. Other areas which reference the location of Lijiwana, such as the Buchanan Highway, do not appear on mapping related to E32751. I understand there are cultural sensitivities with this site, which may have contributed to the limited information provided about the location of the site, and its particulars. Given the information which has been provided, I understand it is an important site, however, I cannot conclude it is a site of particular significance for the purposes of s 237(b).

Kunakinga waterhole

Kunakinga is referenced by Mr Farrell (for example, at 21, 48- 49, 61) as an important area of country for the native title party and is connected to the main dreaming for the native title party in this area. It is asserted there are Kunakinga places which are important places in accordance to the native title party traditions, and one is a waterhole in ELA32749. Mr Farrell references a Kunakinga waterhole site in relation to Larrimah, and provides the distance and time it would take to get to the waterhole, which are consistent. Mr Farrell also references the Kunakinga waterhole site to the ‘Nutwood Highway’ – I note the Nutwood Downs Road runs through the proposed licence and near to a waterhole on the proposed licence which is placed consistently with the distance and time from Larrimah. I conclude the ‘Nutwood Highway’ is likely to be the Nutwood Downs Road. I note there are other bores and waterholes on this proposed licence, however, the Kunakinga waterhole is the one which Mr Farrell has described as being important and sacred.
The dreaming runs through Kunakinga country and ‘there are rules we have to follow’ (Mr Farrell at 22). The trees in the area of the sacred Kunakinga waterhole can’t be touched ‘so you can’t get sugarbag from inside that waterhole place, you have to go outside a bit’ (at 30). It is described by Mr Farrell as a sacred place (at 47), and he is not allowed to swim there (at 67).
Top End, in their reply contentions (at 20), submit the evidence of the association of the dreaming ‘and the importance of this dreaming in relation to native title holders’ connection to culture and country, as well as the evidence of cultural protocols that must be followed when visiting the site clearly demonstrates the particular significance of the Kunakinga site’. I also note the rights and interests held by the native title party on this proposed licence, as outlined in Kalala Pastoral Lease, including those related to places of ‘significance’ under traditional law and custom and to ‘conduct activities necessary to give effect’ to these rights.
The Territory notes (at 35) the Aboriginal Areas Protection Authority Abstract of Records, shows a number of registered and recorded sites in the proposed licences, but none have been identified by the native title party as being of particular significance. The Territory also argues (at 36-37) that the information and evidence provided regarding the sites which are asserted to be of particular significance is broadly cast, and there is no information about the sites in relation to the traditions of the native title party. I accept that is the case for White Cliff, Marrakin and Lijiwina. In the statements of Mr Farrell and Mr Anderson for these sites that reluctance to provide information about native title party traditions in relation to these areas is most likely because the sites are gender restricted to men – the Territory accepts that proposition (at 39).
Fiddler’s Creek do not make any specific submissions as to whether or not they accept this site is of particular significance to the native title party.
In relation to the Kunakinga waterhole, I appreciate there are cultural sensitivities regarding this site. However, the evidence provided is more fulsome than for the other sites asserted in this inquiry, and the evidence and assertions are consistent with features which exist on ELA32749 and surrounds. I am satisfied the evidence goes beyond mere assertion, albeit narrowly, for me to conclude the Kunakinga waterhole is a site of particular significance to the native title party. As such, I consider interference with this site.

Is there likely to be interference with any sites of particular significance?

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 44) 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 traditional law and custom. 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 enter country and observance of ceremonial ritual is required to avoid interference with sites of particular significance.

The Territory contentions on interference (at 50-56) assert that interference is unlikely, arguing that the regulatory regime will provide sufficient protection, including the standard and other conditions placed on the grant of such a licence. Fiddler’s Creek make similar arguments in their contentions. For example, their contentions (at page 1) state:
Fiddlers will obtain an Abstract of Records from the NLC [Northern Land Council] to see where current recorded sacred sites are, to ensure planned field works will not impact on any sacred site. Fiddlers will ensure that all sacred sites are not impacted on during exploration activities. Fiddlers are also happy to meet with Mr Anderson and Mr Farrell before any exploration works commence to obtain advice on areas where exploration should not occur.
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 42-44) the Sacred Sites Act and other legislative instruments in the Northern Territory 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 45-52) 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 (at 47 for example). The Territory also explains (at 45-47) 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 47) 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 (at 48) that ‘Not only does the site protection regime identify and protect sites, it adds additional protection through exclusion zones where appropriate’.
The Territory explains (at 49) 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 numerous previous authority certificates which would have involved such consultations.
The Territory (at 49) assume the Authority consultations have been conducted but it is not clear with whom such occurred, if they occurred and when they occurred, over what areas. The Top End reply (at 15) argues that:
...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 46) outline that the effect of the regulatory regime, together with the conditions on an exploration licence, puts Fiddler’s Creek on notice of their obligations under the Sacred Sites Act and Land Rights Act, such that no defence would be available to the grantee 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 any sites of particular significance.
The proposed exploration activities are outlined above (at [7]), exploring for base and precious metals. It is said drill holes will be made for testing purposes, but there is at this early stage no guidance about where such holes may be made, or where further exploration activities may occur once target areas are located. I appreciate Fiddler’s Creek intend to meet with Mr Farrell and Mr Anderson before exploration works commence, but there is no binding agreement about where, when and how such a meeting would occur, or what ‘explorations works’ means. There is no information from the explorer about how they will access the proposed licence where the Kunakinga waterhole is, how many people will access the area, or what level of disturbance would be caused in the area of the Kunakinga waterhole.
As I noted in Top End v Baudin (at [9]):
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 [Mineral Titles Act2010 (NT)].... The MTA operates with the MMA [Mining Management Act 2001 (NT)]. 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.
As I also noted in Top End v Baudin, activities such as travelling on the surface of the land by foot would not fall into the category of ‘substantial disturbance’.
Looking at the regulatory conditions to be imposed by the Territory, 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 Territory materials (at 28 for example), 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.
Mr Farrell outlines the particular significance of the Kunakinga waterhole in terms of the rules that need to be followed in the native title party traditions (at 54) including not touching things or moving rocks there, or cutting trees. The Territory (at 24) appear to accept that the trees cannot be touched at this area because of the sacredness of the area and its association with the dreaming.
Mr Farrell states that he and other members of the native title party must be consulted before this site is accessed, and there are consequences if the rules associated with the site are broken (Mr Farrell’s affidavit at 61, 63, 65-66, 70-71, 73). I also note the rights and interests the native title party hold on this proposed licence. While the Territory argues (at 36-37) the information provided is insufficient to show the traditions which explain the sites particular significance, I accept there is just enough information and evidence to demonstrate the types of activity which could interfere with the Kunakinga waterhole as a site of particular significance, and that the site is tied to the traditions of the native title party.
In the context of the Territory’s regulatory regime, and the native title party’s traditions and sensitivity of the Kunakinga waterhole as outlined by Mr Farrell, I am satisfied that even taking account of the Territory’s regulatory regime Fiddler’s Creek 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 the Kunakinga waterhole. Following the reasoning of McKerracher J in FMG Pilbara v Yindjibarndi, what may appear to be inconsequential activity in the area of the Kunakinga waterhole to Fiddler’s Creek, is likely to be substantial interference from the native title party point of view.

Determination

I find the grant of exploration licence EL32748 to Fiddler’s Creek Mining Company Pty Ltd is an act which attracts the expedited procedure.
I find the grant of exploration licence EL32749 to Fiddler’s Creek Mining Company Pty Ltd is not an act which attracts the expedited procedure.
I find the grant of exploration licence EL32751 to Fiddler’s Creek Mining Company Pty Ltd is an act which attracts the expedited procedure.

Ms Helen Shurven
Member
26 August 2022