Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Fiddler's Creek Mining Company Pty Ltd
[2022] NNTTA 54
•8 August 2022
NATIONAL NATIVE TITLE TRIBUNAL
Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Fiddler’s Creek Mining Company Pty Ltd & Another [2022] NNTTA 54 (8 August 2022)
Application No: | DO2021/0010 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (DCD2012/004, DCD2012/005, DCD2012/010, DCD2013/014, DCD2018/005)
(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
Tribunal: | Member H Shurven |
Place: | Melbourne |
Date: | 8 August 2022 |
Catchwords: | Native Title — Expedited procedure — Northern Territory — exploration licence — s 237 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 |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 237 |
Cases: | Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti) Barney Ellaga (On behalf of the Murrunggun Kunakingka Group and the Guyal Bardi Bardi Group) v Northern Territory of Australia and Telstra Corporation Limited (ABN 33 051 775 556)[2012] FCA 665 (Ellaga v Northern Territory) Jimmy Wavehill (On behalf of the Longreach Birdum Group) v Northern Territory of Australia, Maryfield Station Pty Ltd (ACN 102 227 252) and Telstra Corporation Limited (ABN 33 051 775 556) [2012] FCA 666 (Wavehill #1 v Northern Territory) Jimmy Wavehill (On behalf of the Longreach Birdum Group, The Burdal Yarrkala Group, The Guyal Wurrungguy Group and The Murrumggum Kunakingka Group) v Northern Territory of Australia, Best-Rural Pty Ltd (ACN 001 939 975) and Telstra Corporation Limited (ABN 33 051 775 556) [2012] FCA 671(Wavehill #2 v Northern Territory) Jimmy Wavehill (on behalf of the Wubalawun Group and the Badpa (Daly Waters) Group) v Northern Territory of Australia and Cave Creek Station Pty Ltd, Rohan Mcdonald Sullivan, Sally Anne Sullivan, Thomas George Henry Stockwell and Beverley Ellen Stockwell [2013] FCA 1081 (Wavehill #3 v Northern Territory) Wavehill (on behalf of the Wubalawun Group) v Northern Territory of Australia [2018] FCA 1602 (Wavehill #4 v Northern Territory) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd & Another [2022] NNTTA 51 (Top End v Baudin) WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources[2012] NNTTA 17 (WF v Emergent Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Harriet Roberts, Northern Land Council |
| Representative of the grantee party: | Holly Edgar, Australian Mining & Exploration Services |
| Representatives of the Government party: | Stewart Bryson & 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 licence EL32805 to Fiddler’s Creek Mining Company Pty Ltd (Fiddler’s Creek/grantee party/GP). The Territory gave public notice of this proposal, as required by s 29 of the Native Title Act (Cth) (the Act). Included in the notice is a statement that the Territory considers the proposed grant attracts 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 licence. 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 a prescribed body corporate and information about the rights and interests of the native title parties in this inquiry is outlined in the Federal Court decisions of Ellaga v Northern Territory, Wavehill #1 v Northern Territory, Wavehill #2 v Northern Territory, Wavehill #3 v Northern Territory and Wavehill #4 v Northern Territory.
The objection was 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 grant attracts the expedited procedure (see s 32 of the Act).
The proposed licence is in Larrimah, and is just over 711 square kilometres in size, with non-exclusive native title rights and interests held by Top End.
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
Fiddler’s Creek provided their proposed works programme for years one and two, exploring for base and precious metals, related products and bitumen. They noted they intend in year one to conduct geochemistry analysis, and in year two any targets defined from this will be drill tested. I assume the grantee will exercise the full suite of rights they have at their disposal given the lack of detail regards future year activities.
Top End provided contentions, mapping, a statement from Alan Maroney and a reply to the grantee and Territory materials. Mr Maroney outlines his authority to speak for the country of this proposed licence.
The Territory materials for the proposed licence include:
· Topographical and tenure maps
· Abstract of Records from the Aboriginal Areas Protection Authority
· The exploration licence application
· Conditions applicable to the grant of an exploration licence
· Information about current and historic overlapping titles for the relevant areas
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.Top End contentions (at 15-16) argue there is a waterhole called Birdum associated with a named dreaming which is a site of particular significance. Top End refers me to Mr Maroney’s statement for detail of the site.
Mr Maroney (at 6-7) outlines he is responsible for the country of the proposed licence, and that Birdum is significant for the named dreaming, and it ‘is a waterhole’ (at 11). I do not name the dreaming as it is clear (for example, at 12) that the dreaming has gender restricted and cultural sensitivities, and that publication of information may be problematic for the native title holders. The native title party contentions (at 16) confirms some details of the significance of the site cannot be shared. I appreciate that Mr Maroney (at 21) outlines that some previous exploration at the Birdum site caused seasonal interference and so ‘we try not to advertise our [named] dreaming’, which also explains a reluctance to provide information about particular significance. Where cultural or other sensitivities are relevant to an inquiry, a party may apply for non-disclosure orders under s 155 of the Act to be made over evidence so such detail is not published in the decision.
While it is asserted a) Birdum is a waterhole on the proposed licence south-east of Larrimah, b) it is associated with an important dreaming, and c) it is one of the biggest sites on the native title party country (Mr Maroney at 11), I am not clear where the dreaming intersects with the site, or the pathway of the dreaming through the proposed licence. It may be that it is related to the creek of a similar name which runs through the proposed licence. However, that is speculation and there is nothing further to identify the site. I appreciate this lack of detail is likely to be because of the cultural and gender sensitivities associated with the dreaming (Mr Maroney at 14, for example). However, I must be careful not to stray into speculation, and to base my conclusions on factual evidence.
The Top End reply (at 5-8) also outlines the sensitive nature of the dreaming and the site. The reply (at 10) outlines that the Tribunal can make a determination that a site is of particular significance without precise identification ‘where the evidence is otherwise compelling’. However, in this matter, while there is information about why the area is sensitive, which goes to interference in context of native title party traditions, there is little information about the particular significance of the area, or the location of the area which is asserted to be of particular significance, apart from information such as is it a waterhole south-east of Larrimah. I do not find that evidence compelling.
The Territory and Fiddler’s Creek argue there is insufficient information from the native title party for me to conclude there are sites of particular significance on the proposed licence.
As is noted in Barnes v AngloGold Ashanti (at [49]), the Tribunal:
has repeatedly found that in order to satisfy the requirements of s 237(b) of the [Act] in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance.
This approach is further outlined in WF v Emergent Resources (at [45]):
…the native title party is required to provide sufficient detail and specificity to allow the Tribunal to make the predictive assessment in accordance with s 237(b)... Mere reference to the existence of a…place without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites or areas of particular significance on the proposed licence…
I appreciate that the site is of importance to the native title party, and to Mr Maroney and his family and the native title party community. However, there simply is insufficient evidence for me to conclude Birdum is a site of particular significance for the purposes of s 237(b) of the Act. As such, I do not need to consider interference with a site of particular significance for the purposes of this inquiry.
Determination
I find the grant of exploration licence EL32805 to Fiddler’s Creek Mining Company Pty Ltd is an act which attracts the expedited procedure.
Ms Helen Shurven
Member
8 August 2022
0
0
0