Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Green Critical Minerals Limited & Anor
[2024] NNTTA 5
•2 February 2024
NATIONAL NATIVE TITLE TRIBUNAL
Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Green Critical Minerals Limited & Anor [2024] NNTTA 5 (2 February 2024)
Application No(s): | DO2022/0016; DO2022/0017 |
IN THE MATTER of an inquiry into expedited procedure objection applications
Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (DCD2012/006; DCD2012/012)
(native title party/Top End)
- and –
Green Critical Minerals Limited (formerly Chase Mining Corporation Limited)
(grantee/Green Critical Minerals)
- and –
Northern Territory of Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member Lisa Eaton |
Place: | Perth |
Date: | 2 February 2024 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – is the grant likely to interfere with areas or sites of particular significance – consideration of sites outside area of determined native title – impact of removal of blocks from application during inquiry process – likelihood of interference – the acts are not acts attracting the expedited procedure |
Legislation: | Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) s 3 Heritage Act 2011 (NT) (Heritage Act) ss 111, 112, 113 Mineral Titles Act 2010 (NT) (Mineral Titles Act) Mining Management Act 2001 (NT) (Mining Management Act) ss 4, 35, 36 Native Title Act 1993 (Cth) (the Act) ss 29, 30, 31, 32, 237 Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act) ss 3, 25, 33, 34, 35, 36, 37 |
Cases: | Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 131 (Griffiths v BHP) Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 (Champion v Western Australia) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) C Inc v Australian Crime Commission [2010] FCAFC 4 (C Inc v Australian Crime Commission) Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd [2013] NNTTA 86 (Cosmos v Croydon Gold) Daisy Lungunan on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (Lungunan v Geotech International) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC (2014) 227 FCR 182; [2014] FCA 1335 (FMG v Yindjibarndi) Hale on behalf of the Bunuba #2 Native Title Claim Group v Western Australia [2015] FCA 560; (2015) 233 FCR 96 (Hale v Western Australia) Kevin Allen & Ors on behalf of Nyamal #1 v Diversified Asset Holdings Pty Ltd [2020] NNTTA 32 (Allen v Diversified Asset Holdings) Les Tullock on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22; (2011) 257 FLR 320 (Tullock v Western Australia) Raymond v Northern Territory of Australia [2012] FCA 667 (Mungabroom determination) Raymond v Northern Territory of Australia [2012] FCA 683 (Beetaloo determination) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (Smith v Western Australia) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another [2016] NNTTA 16 (Tjurabalan v Rich Resources Investments) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Fiddler’s Creek Mining Company Pty Ltd & Another [2022] NNTTA 59 (Top End v Fiddler’s Creek Mining Company) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Kess Diamond Marstella & Core Uranium Pty Ltd and Another [2023] NNTTA 25 (Top End v Kess Diamond Marstella) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Lucky Break Operations Pty Ltd [2019] NNTTA 125 (Wanjina-Wunggurr v Lucky Break Operations) Ward & Ors v Northern Territory [2002] NNTTA 104; (2002) 169 FLR 303 (Ward v Northern Territory) Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (Ward v Western Australia) Wood v West [2008] WASCA 242 (Wood v West) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (Yindjibarndi v FMG) Yinhawangka Aboriginal Corporation RNTBC & Another v Korab Resources Limited & Another [2022] NNTTA 69 (Yinhawangka v Korab Resources) |
| Representative of the native title party: | Kip Frawley, Northern Land Council |
| Representative of the grantee party: | Danielle Alchin, Australian Mining & Exploration Title Services Pty Ltd |
| Representatives of the Government party: | Jennifer Laurence, Department of Industry, Tourism and Trade Nicola Gollan of counsel |
REASONS FOR DETERMINATION
This is a decision about whether the expedited procedure described in s 237 of the Act applies to the grant of two exploration licences[1] sought by Green Critical Minerals.
[1] EL33229 and EL33230.
The Government party gave public notification of the proposed grants, and included a statement that it considers the grants attract the expedited procedure process. The effect of giving such a notice is that unless a native title party lodges an objection, the acts may be done without first requiring all the parties to negotiate in good faith.
The area of the proposed licences overlaps the land and waters subject to the following native title determinations:
(a)Mungabroom determination;[2] and
(b)Beetaloo determination.[3]
[2] Raymond v Northern Territory of Australia [2012] FCA 667 (Mungabroom determination).
[3] Raymond v Northern Territory of Australia [2012] FCA 683 (Beetaloo determination).
Top End is the prescribed body corporate for the native title holders under those determinations. Accordingly, Top End is the registered native title body corporate in relation to land and waters that will be affected by the grant of the licences.[4]
[4] See s 30 of the Act.
On this basis, Top End lodged an objection to the Government party’s inclusion of the expedited procedure statement for the grants.[5]
[5] See s 32(3) of the Act.
My task is to consider if the proposed grants satisfy s 237.[6] This section provides that a future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
[6] See s 32(4) of the Act.
A description of the legal principles applicable to s 237, which I adopt for this inquiry, were set out in FMG v Yindjibarndi and are summarised below:[7]
(a)the Tribunal is required to make a predictive assessment of what was likely to occur;
(b)there must be a real chance or risk of interference with the area or site;
(c)the interference must involve actual physical intervention;
(d)slight interference to a relevant area or site may be unacceptable;
(e)the presumption of regularity applies when making the predictive assessment required;
(f)the Tribunal must consider the evidence provided in a particular matter to decide whether the protective regime is adequate in that case.
[7] FMG v Yindjibarndi at [13].
Top End contend the grant of the licences would be acts which are likely to interfere with sites of particular significance to the native title holders, offending s 237(b). They have not made any contentions in relation to s 237(a) or (c).
For the reasons outlined below, my determination is that the grant of the licences to Green Critical Minerals are not acts attracting the expedited procedure.
Section 237(a): Is the grant of the licence likely to interfere directly with the native title party’s community or social activities?
Under s 237(a), the Tribunal must consider whether the grant of a license is likely to interfere directly with the native title party’s community or social activities. The interference contemplated in s 237(a) must be substantial in its impact upon community or social activities and is not the same as the nature of interference under s 237(b).[8] Trivial impacts or impacts which are not relevant to the carrying on of such activities are outside the scope. I must also have regard to the context of any likely interference by considering constraints which may already be imposed on community and social activities by third parties and external regulation.[9]
[8] Ibid at [75].
[9] See Smith v Western Australia at [27] and Griffiths v BHP at [56].
I do note there is an Aboriginal community Lija Mukumparla located in the southern corner of EL33230. Mr O’Keefe describes the community and the land and waters in the vicinity of the community as ‘Lija Muwarpti Country’.[10] As the Tribunal has done in earlier matters, I infer that community and social activities occur on and in the vicinity of this community.[11] Top End has not provided any evidence or contentions of such community and social activities, instead focusing their evidence in this inquiry on sites of particular significance to the native title holders.
[10] Statement of Robert O’Keefe dated 30 May 2023 (RO Statement) at [13].
[11] See for e.g. Tullock v Western Australia at [87], [89].
The Tribunal takes a commonsense approach to evidence and parties exercising evidentiary choice.[12] Top End do not make any contentions in relation to s 237(a) and there is no evidence before me which indicates the grant of the licences is likely to substantially, or directly, interfere with the native title party’s community and social activities.Accordingly, I am unable to find there is any likelihood of interference under s 237(a).
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title party, in accordance with their traditions?
[12] See Ward v Western Australia at [26].
Are there areas or sites of particular significance in the licence area?
An area or site of particular significance is one of special or more than ordinary significance to the native title holders in accordance with their traditions.[13]
[13] See Cheinmora v Striker Resources at 34-35.
The relevant principles for consideration of s 237(b) were summarised in Yindjibarndi v FMG as follows:[14]
(a) the area or site must be of special or more than ordinary significance to the native title holders (applying Carr J’s explanation in Cheinmora v Striker Resources at 34). In this regard I note it is well established that a site or area may be of particular significance without being recorded on the Government’s cultural heritage register (see Little v Lake Moore Gypsum at [67]);
(b) if an area or site is of particular significance, it must be known and must able to be located and the nature of its significance explained to the Tribunal (referring to Western Australia v McHenry);
(c) even slight interference to a relevant area or site may be unacceptable in the context of s 237(b) but the interference must involve actual physical intervention;
(d) generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. Examples given in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence etc’; and
(e) there must be a real chance or risk of interference with the area or site (referring to Smith v Western Australia and Little v Western Australia, adopting the “real risk” approach).
[14] Yindjibarndi v FMG at [17].
An explanation of a site’s particular significance need not be lengthy; however, it does need to go beyond mere claim and the nature of the significance in accordance with the native title party’s traditions must be explained.[15]
[15] Wanjina-Wunggurr v Lucky Break Operations at [21].
Top End contends there are six (6) sites of particular significance within the area of the licenses, each linked to one of three (3) Dreamings, as follows:
(a)Karapapa (Fish Dreaming);
(b)Pirtyatiju and Sinkhole (Black Headed Python Dreaming); and
(c)Karnjara, Lija, and Muwartpi (Travelling Bird Dreaming).
The Government party contends the evidence:
(a)does not establish the sites as being of particular significance within the meaning of s 237(b) of the Act;[16] and
(b)in the alternative, fails to establish the grant of the licenses will likely result in interference with those sites.[17]
[16] Statement of contentions of the Government party dated 3 July 2023 (GVP contentions) at [71]-[77].
[17] Ibid [78]-[83].
Further, the Government party contends the Karnjara, Lija and Muwartpi sites, all linked to Travelling Bird Dreaming, fall outside the area of determined native title and are therefore not relevant to this inquiry.[18] They argue that while these sites may fall within the area of EL33230:[19]
… they do not fall within the area which is subject to the native title determination in respect of which the Native Title Party is the registered native title body corporate, as they are located on the cadastre land, not the land in NTP 308 (which is subject to the Mungabroom Determination).
[18] Ibid [21]-[27], [29].
[19] Ibid [27].
Top End submits the Tribunal should reject the Government party’s contentions in respect of this issue as it has previously found sites outside an area of determined native title can be relevant to an inquiry.[20]
[20] Statement of contentions in reply of the native title party dated 10 July 2023 (NTP reply) at [23]-[27].
As held in Yinhawangka v Korab Resources, there is nothing in the Act which specifically requires that a particular site be located within the native title party’s area of claimed or determined native title.[21] Whilst such a fact may be persuasive, it is not determinative. As per s 237(b), what I must consider is whether the evidence demonstrates that an area or site is of particular significance to the native title party in accordance with their traditions. Such areas or sites may be located outside of determined or claimed native title boundaries.
[21] Yinhawangka v Korab Resources at [162].
I find that Top End are not prevented from advancing an objection under s 237(b) in relation to the Karnjara, Lija and Muwartpi sites.
The Government party’s evidence included an Aboriginal Areas Protection Authority (AAPA) Abstract Record (map) which shows five (5) recorded sacred sites and eight (8) restricted works areas located within the area of EL33229, and one (1) recorded sacred site and three (3) restricted works areas located within the area of EL33230.
Section 3 of the Sacred Sites Act defines sacred site to mean ‘a sacred site within the meaning of the Land Rights Act.’ Section 3 of the Land Rights Act provides:
“sacred site” means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.
According to the AAPA abstract:
(a)a recorded sacred site is a site that is known to the Authority but has not been registered and includes recorded sacred burial sites. The Authority may hold the information required to register the site should this become the wishes of the custodians. Alternatively, a recorded sacred site may still require further research to obtain all necessary information. The recorded coordinate point for a sacred site is a reference point only and does not necessarily indicate the location or extent of any specific site feature; and
(b)a restricted work area relates to an area identified in an issued Authority Certificate. It is an area that had restrictions on the kind of activities that were permitted (or not permitted) in the area.
Based on the evidence before me, there may be correlations between some of the recorded sites and restricted work areas, and the sites identified by the native title holders in this inquiry. However, Top End’s contentions state that it is unable to confirm any such correlations without further engagement with the native title holders.[22] Top End do contend that the AAPA Abstract supports their submission that the licence areas, in particular the area around Karapapa to the north of EL33229, is a site rich area empowering the Tribunal to make a decision consistent with the decision made in Ward v Northern Territory.[23]
Karapapa (Fish Dreaming)
[22] Statement of contentions of the native title party dated 19 May 2023 (NTP contentions) at [32].
[23] NTP reply at [10].
The evidence of Mr Raymond places this site on the northern part of EL33229.[24] It is described as a ‘Fish Dreaming’ water hole and a sacred site.[25] Mr Raymond deposes that his father, Old Tom, and his grandfather, Murulungunji, told him about the fish hole and he would learn about the sites in business, during initiation. He details that the Fish Dreaming travels along a creek and ‘he bin stop there, at Karapapa, and then he goes travelling on the same creek to Walangkuja, another waterhole. That’s maybe another 5 or 10 kilometres. That fish he goes up and comes back this way and pulls up at Beetaloo.’[26]
[24] Statement of Pompey Raymond dated 19 May 2023 (PR Statement) at [31].
[25] Ibid at [31] and [34].
[26] Ibid at [33].
Mr O’Keefe does not give any evidence in relation to the Fish Dreaming and the Karapapa site. I note this site and the related Fish Dreaming track is located in the top northern part of EL33229 and the evidence of Mr O’Keefe does not address this area whatsoever. Mr O’Keefe does discuss the Black Head Python Dreaming and spending some time at Mungabroom station in his evidence; however, I note this Dreaming and the station do not extend to the top northern part of EL33229 where Karapapa is located.[27]
[27] RO Statement at [15]-[18].
The Government party contends:[28]
… it is unclear whether when Mr Raymond refers to “sacred sites” he is talking about the Karapapa site, or the other sites mentioned in the passage, such as the “big mob tree” or the “Walangkuja” waterhole.
[28] GVP contentions at [61].
On my reading of the evidence, Mr Raymond is referring to all the sites he says are part of the Fish Dreaming, including Karapapa.
The Government party also contends the evidence ‘does not explain the nature of why the sites are considered to be sacred by the native title holders, beyond the generic description that “all the business happened there for Aboriginal people years ago”’.[29] I disagree with this contention.
[29] Ibid [75].
Mr Raymond’s description of the site and use of the term ‘business’ must be considered in the context of the evidence as a whole.[30] Mr Raymond details the protocols for entry onto sites, including those associated with the Fish Dreaming such as Karapapa, and the consequences for interference with such sites, both of which go beyond a generic description.[31] Mr Raymond’s evidence also addresses the nature of the site in terms of its connection with the Fish Dreaming, and details how he would ‘learn about these sites in business, during initiation’.[32] Importantly, this reference to business gives further context to his use of the term ‘business’ where referenced by the Government party. The reference to business here, alongside the term initiation, makes it plain that Mr Raymond is referring to lore/law business being associated with Karapapa and the Fish Dreaming. A contextual reading of his evidence does not indicate the use of term is intended to be interpreted differently. The Tribunal’s adoption of a commonsense approach to evidence further supports this contextual and logical reading of the evidence as a whole.
[30] See Wood v West; C Inc v Australian Crime Commission.
[31] PR Statement at [46]-[48].
[32] PR Statement at [31] – [34].
The Tribunal has previously found that sites and areas forming a part of a Dreaming track or songline are of particular significance for the purposes of s 237(b).[33] However, the particular significance of a site or area associated with a Dreaming or songline must be sufficiently explained. The fact that a site is connected to a Dreaming or songline alone is insufficient, its particular significance to the native title holders in accordance with their traditions must also be explained.
[33] See Allen v Diversified Asset Holdings; Yinhawangka v Korab Resources; Tjurabalan v Rich Resources Investments; Top End v Kess Diamond Marstella.
It is also not enough that the site simply be of significance to the native title holders. As held in Cheinmora v Striker Resources that would leave the word ‘particular’ with no work to do.[34]
[34] Cheinmora v Striker Resources at 34.
I accept that Karapapa is a site located on the licence, it is known and able to be located. The evidence before me also establishes the site is significant beyond its association to the Dreaming. When considering the evidence of Mr Raymond read as whole, the native title party has explained the site’s significance as a waterhole and a place where traditional business occurred, and also details the protocols for entry onto the site and the consequences for interference. Based on the evidence before me I accept it is a site of more than ordinary or particular significance to the native title holders in accordance with their traditions.
Pirtyatiju and Sinkhole (Black Headed Python Dreaming)
In relation to the sites associated with the Black Headed Python Dreaming the Government party again contends, in summary, that the evidence does not describe the importance of these sites beyond association with the Black Headed Python Dreaming and does not adequately describe the location.[35] I do not accept this contention in relation to the Pirtyatiju site.
[35] GVP contentions at [64], and [76]-[77].
Mr O’Keefe gives evidence that the Black Headed Python Dreaming goes through EL33229 and has a site linked to it also on the licence called Pirtyatiju.[36] He explains the significance of the site and the consequences of any interference: [37]
If a mining company went near that site, or other important sites, they might do damage. As an owner for that place, I might get punished by that Dreaming. All of my family connected to the Black Headed Python would get punished. The mining people, they might get punished too.
[36] RO Statement at [11] and [17].
[37] Ibid at [18].
Although Mr O’Keefe gives evidence regarding the Black Headed Python Dreaming and Pirtyatiju he does not make any reference to the Sinkhole site.[38]
[38] Ibid.
Mr Raymond describes Pirtyatiju as another water hole located on EL33229 that you travel to from Karapapa, following the Black Headed Python, or Mulyukuna, Dreaming track.[39] He also gives evidence that about 20 kilometres east from Pirtyatiju is the Sinkhole where the python ‘went and made another hole’ located on EL33230.[40]
[39] PR Statement at [35]-[36].
[40] Ibid at [38].
Mr Raymond talks about the ‘old men’ he worked with, Old Nat, Old Tom (his father), Old Albert, Old Reg Madson, Old Hector, teaching about the Karapapa, Pirtyatiju, and the Sinkhole sites.[41]
[41] Ibid at [39].
Based on the evidence before me, I accept that Pirtyatiju is a site located on the licence and is a site of particular significance to the native title holders in accordance with their traditions.
However, there is not enough evidence before me to reach the same conclusion in relation to the Sinkhole. Mr Raymond’s description of the Sinkhole is very brief, detailing it is ‘a sinkhole where that snake went and made another hole’.[42] There is no further description of the site specifically, or its particular importance to the native title holders, in the evidence before me. The Sinkhole is also not addressed whatsoever in the evidence of Mr O’Keefe where he talks about the Black Headed Python Dreaming and the other related Dreaming track site Pirtyatiju.
[42] Ibid at [38]
I accept the Sinkhole is located on the licence area, however the native title party has not sufficiently explained the particular significance of the site beyond its connection to the Black Headed Python Dreaming.
Karnjara, Lija, and Muwartpi (Travelling Bird Dreaming)
Mr O’Keefe gives evidence about the Travelling Bird Dreaming. He says he is very worried about the waterholes south of Lija Mukumparla, located on EL33230, where the Travelling Birds go through, as ‘they are important places for the Dreaming and as rock holes. If the mining company disturbed those places, that might mean animals cannot drink at the waterholes. That would be bad for Country.’[43]
[43] RO Statement at [23].
Mr Raymond gives detailed evidence in relation to the Karnjara, Lija, and Muwartpi sites, which he describes as sacred sites consisting of three waterholes running along the same creek on the southern part of EL33230, near Lija Mukumparla. He talks about the sites being created by a Lighting Dreaming back in creation time by the creation being, the Rain Man, who gave the sacred sites their names.[44] He details: [45]
Those waterholes – Karnjara, Lija and Muwartpi – are important sites because of the Travelling Birds Dreaming. All those birds go through there. The skin name for those birds is Kulankuriti (Dove), Yalkungkurdi (Brolga), Kulkapati (Turkey) and Kilwubwini in Jingili or Kalwalwana in Wambaya. That’s language names for those big mob of Travelling Birds.
[44] PR Statement at [24].
[45] Ibid at [25].
The Government party contends that:
(a)the Karnjara, Lija and Muwartpi sites are clustered around Lija Mukumparla, and the native title party has not established it is the holder of native title in relation to the lands where the community or the sites are located;[46] and
(b)in the alternative, the evidence does not establish that these sites are sites of particular significance, noting that there is not any specific evidence going to the importance of the sites, beyond their association with the Travelling Birds Dreaming.[47]
[46] GVP contentions at [71].
[47] Ibid at [72].
The evidence of both Mr O’Keefe and Mr Raymond described the sites as located on EL33230 adjacent to Lija Mukumparla. I accept this evidence and I accept that the sites are located on the licences. For the reasons set out above at [18] to [21], I have also found that Top End are not prevented from advancing an objection under s 237(b) in relation to the Karnjara, Lija and Muwartpi sites.
In terms of the particular significance of the sites, in his evidence Mr Raymond outlines the prerequisites and protocols for entry onto the lands, and the consequences of interference with sites and country more generally.[48] Mr Raymond also explains the cultural protocols in some detail, including the roles and responsibilities of the mangaya and junggayi, and the potential consequences of not following protocol and damage to the sites.[49]
[48] PR Statement at [40]-[49].
[49] Ibid at [46]; see also [47] and [49].
Based on the evidence before me, I accept that the Karnjara, Lija, and Muwartpi sites are located on the licences and are of particular significance to the native title party.
If yes, is the grant likely to interfere with such sites?
I have found Karnjara, Lija, Muwartpi, Pirtyatiju and Karapapa sites are sites of particular significance to the native title holders in accordance with their traditions. The question which then arises is whether the grant of the permit is likely to interfere with these sites.
The nature of each area or site, the evidence of what would constitute interference, and the activities proposed by the grantee are relevant to my predictive assessment regarding the likelihood of interference.[50]
The Northern Territory regime and the proposed activities
[50] See Smith v Western Australia at [23] and Silver v Northern Territory at [30].
The grant of an exploration licence under the Mineral Titles Act authorises the holder the exclusive right to explore for minerals in the licence area and to conduct activities in connection with such exploration, including (but not limited to) digging pits, trenches and holes, sinking bores and tunnels, geological survey, rock sampling, drilling, and removal and testing of ore or other substances, for an initial term not exceeding six (6) years with the option to apply for renewal(s).
In addition to the Mineral Titles Act, the following legislation and regulations are relevant when considering the regulatory framework in the Northern Territory:
(a)Sacred Sites Act;
(b)Mining Management Act;
(c)Land Rights Act; and
(d)Heritage Act.
The specific rights and conditions that a holder of an exploration licence must comply with are set out in the Mineral Titles Act, which operates alongside the Mining Management Act. Before carrying out mining or exploration work causing substantial disturbance a grantee must apply for an Authorisation, accompanied by a Mining Management Plan relating to the activities.[51] In summary, substantial disturbance under s 35 of the Mining Management Act includes activities such as:
[51] See Mining Management Act ss 4, 35, 36.
(a)land clearing;
(b)earthworks such as cutting, filling, excavating, or trenching;
(c)above-ground works such as building access tracks and roads, buildings, bridges, railways, pipelines, telephone and power lines, conveyors and airstrips;
(d)underground works such as digging tunnels and wells or laying pipelines, conduits and cables;
(e)water works such as building dams, impoundments, canals, drainage works, or the alteration of river or creek banks, water courses and shore lines;
(f)extraction of resources from the surface of the land, underground, riverbeds or undersea mining and quarrying;
(g)stockpiling of materials such as ore, overburden, waste materials and by-products;
(h)exploration works involving seismic lines, drill pads, drill holes – including vacuum, auger and RAB [rotary air blasting], grids, tracks, costeans and camp establishment;
(i)active remote sensing and seismic techniques in water;
(j)drilling and blasting; and
(k)any activity that is likely to have a significant impact on plants or animals.
The Government party provided template conditions applicable to the grant of exploration licences in the Northern Territory, identified as the ‘First and Second Schedule Conditions’. The Second Schedule deals with the requirements for consultation with native title parties, including convening meetings, site protection and substantial disturbance (amongst other matters). This Schedule would require the grantee consult with the native title party and provides for complaints to be made to the relevant Minister, however there is no obligation for the grantee to stop exploration activities if the native title party claims the activities will result in disturbance to sites.
The Government party contends the First and Second Schedule Conditions ‘would prevent the Grantee Party from causing interference with any site of particular significance to the native title holders.’[52] They also contend the Sacred Sites Act would provide ‘significant protections’ by prohibiting:[53]
(a)entry on to a sacred site (though exceptions do apply, particularly where a person holds and complies with an Authority Certificate);[54]
(b)carrying out of works on a sacred site;[55]
(c)desecration of a sacred site;[56] and
(d)contravention of an Authority or Minister’s Certificate.[57]
[52] GVP contentions at [35].
[53] Ibid at [37].
[54] Sacred Sites Act s 33. As outlined in s 25, the effect of an 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’.
[55] Ibid s 34.
[56] Ibid s 35.
[57] Ibid s 37.
Defences are available under s 36 of the Sacred Sites Act, and it is generally a defence where there are no reasonable grounds for a defendant to suspect that the site was a sacred site. The Government party contends that it would issue a letter to the grantee confirming the grant of the licenses and directing attention to the provisions of the Sacred Sites Act and Land Rights Act. The effect of this letter, together with the conditions to be imposed on the grant of the licenses, is contended to put Green Critical Minerals on notice of their obligations under the Sacred Sites Act and Land Rights Act, such that no defence would be available to Green Critical Minerals in the event of interference.[58] However, I must consider whether interference itself is likely, rather than what defences are available should interference occur.[59]
[58] GVP contentions at [38].
[59] Top End v Fiddler’s Creek Mining Company at [37].
The Government party contentions also refer to ss 111-113 of the Heritage Act and submit it ‘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’.[60] However, no party has specifically put contentions going to the facts and circumstances of this inquiry, in particular how the Heritage Act applies and may serve to reduce the likelihood of interference.
[60] GVP contentions at [39].
Under the Government party’s Second Schedule Conditions, a holder of a mineral exploration license is required to consult with the AAPA and inspect the Register of Sacred Sites prior to undertaking works. The native title party submits that this process does not provide accurate information about such sites, and inspection of the register would only list sites that have been registered or recorded by AAPA, the accuracy of which is not guaranteed.[61] The native title party further submits the Northern Land Council’s (NLC) sacred sites data shows multiple sites in locations which do not appear on the AAPA Abstract provided by the Government party in this matter.[62] However, Top End have not put such evidence before me to enable me to consider it in this inquiry.
[61] NTP contentions at [42].
[62] Ibid at [44].
Top End submits the Government party’s Second Schedule Conditions are not sufficient to protect sites and would likely result in interference with areas or sites of particular significance.[63]
[63] Ibid [43], [46]-[49].
Green Critical Minerals’ brief contentions outline its intended work program to conduct exploration activities on the licenses ‘primarily for shallow rare earth minerals, but may also explore for deeper deposits, most likely containing copper and gold’.[64] Green Critical Minerals contends Phase 1 will occur in the first year of the licenses and will include surface sampling of soil on wide spacings, with access to sampling sites via existing station tracks and seismic lines using vehicles, motorbikes, and a small mustering helicopter.[65] Phase 2, in the second year, is contended to involve selection of sites (dependant on the results of the first phase) for initial drilling using a percussion rig, with most holes being approximately 40m deep and located along existing or new tracks cleared with a grader or other equipment.[66] During Phase 2, the grantee also notes that a temporary camp would be established on the licences for approximately three weeks. Phase 3 is contended to involve significant disturbance in localised areas and would see an increase in the number of drillholes, deeper drilling, the clearing of new access tracks, and potentially local geophysical surveys, all dependant on the results of Phase 2. A temporary camp would also need to be established for up to approximately four months during Phase 3.[67]
[64] Letter from Dr Leon Pretorius dated 2 June 2023 (GP contentions) at 1.
[65] Ibid.
[66] Ibid.
[67] Ibid.
Green Critical Minerals contends ‘[t]he clearing and the on-site selection of drill sites is to be monitored by a representative of the relevant Aboriginal Group,’ with the proposed plan of Phases 2 and 3 to be sent to the relevant Land Council at least two months prior.[68] This appears to be an invitation for one person representing the native title holder to act as a monitor, although no further details are provided as to precisely what role the monitor is intended to play. For example, there does not appear to be any commitment by the grantee to move a selected drill site should the monitor indicate the site is unsuitable. Green Critical Minerals also appear to commit to pay for the monitors fees and accommodation, as well as the Land Council charges for administration of the protocols.[69]
[68] Ibid at 2.
[69] Ibid.
Green Critical Minerals also contend they ‘will obtain an up-to-date Abstract of Records from the AAPA to see where current recorded sacred sites are, to ensure planned field works will not impact on any sacred sites’ and ‘will ensure that all sacred sites are not impacted on during exploration activities.’[70]
[70] Ibid.
It is well established that the presumption of regularity applies when making the predictive assessment required by s 237 of the Act. Unless there is evidence to the contrary, the Tribunal will act on the basis that the Government will exercise its powers, including making discretionary decisions, properly and in accordance with the law; and that a grantee party will not act contrary to the law and regulatory regime, including conditions imposed governing the exercise of any granted rights.
There is no evidence before me to displace that presumption of regularity. Nevertheless, even acting within the boundaries of the law, the grant of an exploration licence enables a grantee to do various activities, including drilling, sinking bores, and digging pits. Indeed, here the grantee has confirmed there will be significant disturbance in localised areas of the licences.
Mr O’Keefe has given evidence that going near sacred sites would constitute interference from the native title holder’s perspective, explaining that if a mining company went near important sites, they might do damage and he and his family might get punished, the mining people might get punished too.[71]
[71] RO Statement at [18]-[19].
There is no evidence before me to indicate any willingness on the part of Green Critical Minerals to enter into a heritage protection agreement with the native title party in relation to the grants of the licenses. This is also a factor relevant to my consideration of the likelihood of interference.[72]
[72] See Champion v Western Australia at [29]-[35]; Yindjibarndi v FMG at [32].
The native title party gives evidence that if the grantee does not consult with them, they may not know where the important sites are and may cause damage.[73] Top End also contends that entry into, and strict adherence with, a negotiated heritage agreement is the only way of satisfactorily addressing the native title party’s concerns regarding interference with sites.[74] The approach of the Tribunal is generally, where it appears that an agreement between the parties is required in order to render interference or disturbance unlikely, that seems to be a clear sign that the matter is one where negotiations under s 31 are appropriate and the expedited procedure should not apply.[75]
[73] RO Statement at [21].
[74] NTP reply at [31].
[75] Tjiwarl v Gianni at [106].
In relation to Green Critical Minerals’ evidence and contentions, Top End contends the grantee’s work program:[76]
(a)provides minimal detail about its proposed exploration activities during the first two years of the licenses;
(b)does not capture all the activities authorised to be conducted under the licenses; and
(c)provides no detail of the proposed locations of the activities.
[76] NTP contentions at [30].
In such circumstances, Top End submits the Tribunal should proceed in this inquiry on the basis that Green Critical Minerals will exercise all rights available to it under the licenses to their maximum extent.[77] The Government party accepts this proposition, albeit noting the presumption of regularity that applies in the absence of evidence to the contrary.[78] As set out above, there is nothing before me to displace that presumption.
[77] Ibid [31].
[78] GVP contentions at [41]-[42] and [83].
I agree with Top End that the grantee’s evidence provides no detail of the proposed locations of the activities, further it does not address the question of access to and across the licence areas.
Section 237(b) is directed to the likelihood of interference, not its scale, and interference that may appear trivial to a person not a member of a native title party, may be substantial having regard to the native title party’s traditions.[79]
Removal of blocks from the licences
[79] FMG v Yindjibarndi at [75].
In July 2023, Green Critical Minerals applied to vary the application areas for the licenses by reducing the licence areas as follows (Reduced Licence Areas):
(a)EL33229 reduced from 200 blocks to 189 blocks; and
(b)EL33230 reduced from 200 blocks to 184 blocks.
Green Critical Minerals made this application after the native title party had filed its evidence, including its contentions in reply, and the reduction in areas appears to be applied for in response to areas and sites of significance raised by Top End in this inquiry. However, Top End contend the grantee has failed to reduce the application area for the licences in a way that addresses all the areas or sites of particular significance to the native title party likely to be interfered with by the grant.
The Government party confirmed the application for the Reduced Licence Areas was actioned and is now in effect. No party disputed this assertion.
As set out in the matter Hale v Western Australia,[80] when considering s 237(b), the scope of the inquiry is the whole of the area specified in the s 29 notice. Although I must consider the area as notified, the Reduced Licence Areas is relevant for my consideration of the likelihood of interference under s 237(b).
[80] Hale v Western Australia at [119].
All parties were afforded the opportunity to make further contentions in relation to the impact of the Reduced Licence Areas on the matters to be considered by the Tribunal in this inquiry. Both the Government party and native title party made such contentions.
The Government party contends the blocks Green Critical Minerals requested be removed align with all the recorded sacred sites and some of the restricted work areas recorded in the AAPA Abstract. They further submit the Reduced Licence Areas supports the contention that the grant of the licenses would not be likely to result in interference with any sites of particular significance to the native title holders within the meaning of s 237(b) of the Act.[81]
[81] Supplementary contentions of the Government party dated 2 August 2023 at [4] and [6].
In response Top End contend, in summary, that the Reduced Licence Areas do not remove from the area of the licenses:[82]
(a)all recorded sacred sites or restricted works areas in the AAPA Abstract; or
(b)the Pirtyatiju, Sinkhole, or Karnjara sites; and
(c)without conducting a survey or obtaining an updated AAPA Authority Certificate, the native title party cannot determine whether the removed blocks on the southeast corner of EL33230 have removed the sites of Lija and Muwarpti.
[82] Further contentions in reply of the native title party dated 8 August 2023 (NTP further reply) at [2], [4], [5], [11]; Further supplementary contentions of the native title party dated 7 December 2023 (NTP supplementary contentions) at [3].
Based on the mapping and evidence before me I am not satisfied that the Reduced Licence Area has resulted in the removal of sites of particular significance from the licence areas, namely Pirtyatiju, Lija and Muwarpti. It is not clear to me whether the Reduced Licence Areas removes Karapapa from the licence areas. Top End contend the entirety of ‘Sacred Site C2020/072’, which I take to mean the site underlying AAPA restricted works area C2020/072, is not removed by the reduction.[83] I also note C2020/072 is in the vicinity of where Karapara is described as located. Top End do not specifically contend C2020/072 is the Karapapa site, but they do contend that this site, and other AAPA recorded sites and restricted works areas are not excised, either in full or not at all, by the Reduced Licence Areas.[84] Based on the mapping and evidence before me I accept this contention.
[83] NTP further reply at [4].
[84] NTP further reply at [4]-[5]; NTP supplementary contentions at [2].
Further, without detailed evidence regarding how the grantee plans to access and traverse the licence areas, I am not satisfied that sites Karnjara, Lija, Muwartpi, Pirtyatiju and Karapapa are not likely to be impacted by the grants despite the Reduced Licence Areas. Without clear evidence from the grantee as to how they intend on accessing the licences, it appears based on the mapping evidence before me that many of the removed areas will still need to be traversed to enable Green Critical Minerals to conduct the works it has outlined. Indeed, a large area of removed blocks effectively splits EL33229 into two portions.
I have carefully considered all the evidence in this matter, and I am satisfied there is a likelihood of interference with an area or site of particular significance to the native title party located within the area of the licences. As set out above, the evidence before me was sufficient to establish Pirtyatiju and Karapapa, located on EL33229, and Karnjara, Lija, and Muwartpi sites, all located on EL33230, as sites of more than ordinary or particular significance to the native title holders in accordance with their traditions. I also find there is a likelihood the grant of the licences will interfere with these sites of particular significance.
Section 237(c): Is the grant of the licence likely to involve major disturbance to any part of the licence area?
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters. The relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned.[85]
[85] See Cosmos v Croydon Gold at [29]; Lungunan v Geotech International at [50].
As noted above in my consideration of s 237(a), the Tribunal takes a commonsense approach to the evidence.
Top End do not make any contentions in relation to s 237(c) and there is nothing before me which indicates the grants of the licenses are likely to involve major disturbance to any of the land or waters concerned. On this basis I am unable to find major disturbance is likely.
Determination
The determination of the Tribunal is that the act, being the grant of exploration license EL33229 to Green Critical Minerals Limited (formerly Chase Mining Corporation Limited), is not an act attracting the expedited procedure.
The determination of the Tribunal is that the act, being the grant of exploration license EL33230 to Green Critical Minerals Limited (formerly Chase Mining Corporation Limited), is not an act attracting the expedited procedure.
Lisa Eaton
Member
2 February 2024
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