Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Kess Diamond Marstella & Core Uranium Pty Ltd
[2023] NNTTA 25
•24 August 2023
NATIONAL NATIVE TITLE TRIBUNAL
Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Kess Diamond Marstella & Core Uranium Pty Ltd and Another [2023] NNTTA 25 (24 August 2023)
Application No: | DO2022/0006 |
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 (DCD2011/003; DCD2011/006)
(native title party)
- and -
Kess Diamond Marstella & Core Uranium Pty Ltd
(grantee party)
- and -
Northern Territory of Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Lisa Eaton |
Place: | Perth |
Date: | 24 August 2023 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with the carrying on of community and social activities – presumption of regularity – absence of detailed evidence as to the nature, extent, location, and duration of grantee party activities – assumption that grantee party will use full suite of rights – whether act likely to interfere with sites or areas of particular significance – area rich with sites – act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Land Rights (Northern Territory) Act1976 (Cth) s 3 Heritage Act 2011 (NT) Mineral Titles Act 2010 (NT) Mining Management Act 2001 (NT) ss 4, 35, 36 Native Title Act 1993 (Cth) ss 29, 31, 32, 109, 151, 237 Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 3, 33, 34, 35 Pastoral Land Act 1992 (NT) |
Cases: | Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 131 (Griffiths v BHP) Andrews v Northern Territory [2002] NNTTA 170; (2002) 170 FLR 138 (Andrews v Northern Territory) Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield, [2012] NNTTA 27 (Bunuba v Western Australia) Ben Ward and Others on behalf of the Miriuwung & Gajerrong People/Ausquest Limited/Northern Territory [2002] NNTTA 41 (Ward v Ausquest) 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 (Cheinmora v Striker Resources) Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd [2013] NNTTA 86 (Cosmos v Croydon Gold) Daisy Lungunan on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (Lungunan v Geotech International) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal CorporationRNTBC (2014) 227 FCR 182; [2014] FCA 1335 (FMG v Yindjibarndi) Hughes v Western Australia (2003) 182 FLR 362; [2003] NNTTA 69 (Hughes v Western Australia) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (Hale v Mings Mining Resources) Kevin Allen & Ors on behalf of Nyamal #1 v Diversified Asset Holdings Pty Ltd [2020] NNTTA 32 (Allen v Diversified Asset Holdings) 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) Long v Northern Territory of Australia [2011] FCA 571 (Auvergne Pastoral Lease Determination) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74 (Miriuwung Gajerrong v Seaward Holdings) Monadee v Western Australia [2003] NNTTA 38; (2003) 174 FLR 38 (Monadee v Western Australia) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd [2020] NNTTA 56 (Ngarlawangga v FMG) Paddy v Northern Territory of Australia [2011] FCA 574 (Bullo River Pastoral Lease Determination) Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (Smith v Western Australia) 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 Baudin Resources Pty Ltd & Another [2022] NNTTA 51 (Top End v Baudin) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Lucky Break Operations Pty Ltd [2019] NNTTA 125 (Wanjina-Wunggurr v Lucky Break Operations) Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (Wanjina-Wunggurr v Western Australia) Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (Ward v Western Australia) Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 (Western Australia v Smith) Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (Western Australia v McHenry) Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64 (Yanunijarra v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (Yindjibarndi v FMG) Yinhawangka Aboriginal Corporation RNTBC & Another v Korab Resources Limited & Another [2022] NNTTA 69 (Yinhawangka v Korab Resources) |
| Representatives of the native title party: | Ms Shekira Cardona and Mr James Bainbridge, Northern Land Council |
| Representatives of the grantee party: | Mr Michael Cavanagh and Mr Tom O’Malley, Core Uranium Pty Ltd |
| Representative of the Government party: | Ms Ruby Rayner, Solicitor for the Northern Territory |
REASONS FOR DETERMINATION
This is a decision about whether the expedited procedure described in s 237 of the Native Title Act 1993 (Cth) (the Act) applies to the grant of exploration licence E33023 (licence) to Kess Diamond Marstella and Core Uranium Pty Ltd (Core/grantee party). Based on the material before me, I understand that following any grant Kess Diamond Marstella will hold a 10% interest in the licence and Core will hold a 90% interest. Core is the primary grantee party for this matter.
The proposed licence is for a project referred to as the ‘Kessberlite Project’. The licence is sought under the Mineral Titles Act 2010 (NT) (MTA) for a term of six years commencing from the date of grant.
In accordance with s 29 of the Act, the Government of the Northern Territory (the Territory) gave public notice of its intention to grant the licence on 12 January 2022 (notification day).
The notice included a statement that the Territory considers the proposed grant of the license is a future act attracting the expedited procedure.
Section 237 of the Act 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.
If the notice given under s 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure, unless a native title party lodges an objection, the act may be done without first requiring all the parties to negotiate in good faith in accordance with the normal negotiation procedure set out in s 31 of the Act.
The effect of lodging an objection was described by the Full Bench in Yanunijarra v Western Australia as follows: [1]
In this scheme, the importance of an objection lodged pursuant to s 32(3) is apparent. It is by the lodging of an objection that native title parties can test the Government party’s decision that the act attracts the expedited procedure so that the normal negotiation procedure outlined in s 31 is not required. If there is no objection lodged, or if the arbitral body determines that the Government party has properly assessed the act as attracting the expedited procedure, the native title parties will have no right to negotiate with respect to the doing of the act and the act may be undertaken validly.
[1] Yanunijarra v Western Australia at [17].
Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (Top End) holds native title on trust for the Gajerrong-Ngalinjar, Ngarinyman-Wulayi, Ngarinyman-Nyiwanawam, Gajerrong-Pulthuru, Gajerrong-Ngalinjar, Gajerrong-Gurrbijim, and the Gajerrong-Djarradjarrany peoples (Auvergne and Bullo group/native title party) under the following determinations (Determinations):
(a)Long v Northern Territory of Australia [2011] FCA 571 (NTD5/2010) (Auvergne Pastoral Lease Determination) for estate groups the Gajerrong-Ngalinjar group, the Ngarinyman-Wulayi group, and the Ngarinyman-Nyiwanawam group; and
(b)Paddy v Northern Territory of Australia [2011] FCA 574 (NTD8/2010) (Bullo River Pastoral Lease Determination) for estate groups the Gajerrong-Pulthuru group, the Gajerrong-Ngalinjar group, the Gajerrong-Gurrbijim group, and the Gajerrong-Djarradjarrany group.
The proposed licence comprises 625.7637 sq kms located in Pinkerton, Northern Territory, and is overlapped by the Auvergne Pastoral Lease Determination by 87.98% and the Bullo River Pastoral Lease Determination by 11.10%.
On 21 February 2022, Top End lodged an objection on behalf of the Auvergne and Bullo group to the Territory’s inclusion of the expedited procedure statement (objection).
The President of the National Native Title Tribunal (Tribunal) has appointed me to constitute the Tribunal for the purposes of considering the objection and determining, under s 32(4) of the Act, whether the grant of the licence is an act attracting the expedited procedure.
For the reasons set out below, my determination is that the grant of the licence is not an act attracting the expedited procedure.
Issues
Pursuant to s 237, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to:
(a)interfere directly with the Auvergne and Bullo group’s community or social activities in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance to the Auvergne and Bullo group, in accordance with their traditions (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve major disturbance to any part of the licence area (s 237(c)).
A description of the legal principles applicable to s 237 was summarised neatly by McKerracher J in FMG v Yindjibarndi:[2]
1.the Tribunal was required to make a predictive assessment of what was likely to occur: YAC v FMG (at [15(a)]); Smith (on behalf of the Gnaala Karla Booja People) v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (at [23] per French J); Parker v Western Australia [2008] FCAFC 23; (2008) 167 FCR 340 (at [8] per Moore J);
2.there must be a real chance or risk of interference with the area or site: YAC v FMG (at [17(e)]);
3.the interference must involve actual physical intervention: YAC v FMG (at [17(c)]);
4.slight interference to a relevant area or site may be unacceptable: YAC v FMG (at [17(c)]);
5.the presumption of regularity applies when making the predictive assessment required: YAC v FMG (at [102]);
6.the Tribunal must consider the evidence provided in a particular matter to decide whether the protective regime of the Aboriginal Heritage Act 1972 (WA) (AH Act) is adequate in that case: YAC v FMG (at [120]).
[2] FMG v Yindjibarndi at [13], footnoted references directly set out.
I adopt those principles for the purpose of this determination.
In this matter the Auvergne and Bullo group have not made any contentions in relation to s 237(c). Accordingly, there are two issues primarily relevant to my determination, namely whether the grant of the licence is likely to:
(a)directly interfere with the Auvergne and Bullo group’s community and social activities; and/or
(b)interfere with areas or sites of particular significance to the Auvergne and Bullo group in accordance with their traditions.
The inquiry
Following lodgement of the objection, Member Shurven was initially appointed to constitute the Tribunal for the purposes of this inquiry. On 24 October 2022, this matter was then reallocated from Member Shurven to Member Cooley.
All parties provided evidence in accordance with the Tribunal’s directions as amended from time-to-time.
The Territory provided contentions (Territory contentions); topographical, tenure and historical mapping; Aboriginal Areas Protection Authority (AAPA) Abstract Record; licence application and work program; and First and Second Schedule Conditions to grant.
Top End’s evidence comprised contentions (NTP contentions) and a statement of Mr Laurie Roberts (Roberts Statement), who identifies himself as a Ngarinyman man and senior traditional owner (ngurrumala) of Wurlayi country going across the plains of the East and West Baines Rivers, Auvergne Station, and into the Newcastle Range and Judbara/Gregory National Park, an area Mr Roberts says overlaps most of the proposed licence.[3] Mr Roberts also describes himself as a ceremonial expert with ritual authority over his country including the licence area.[4] These facts are not disputed by the parties and I accept Mr Roberts has authority to speak for the area the subject of the licence. Top End also provided a reply (NTP reply).
[3] Roberts Statement at [2]-[3].
[4] Ibid at [7].
Core relies upon the evidence provided by the Territory and made its own contentions, containing what it described as a statement from Mr Michael Kavanagh identified as Core’s Exploration Manager (Core’s contentions). There is no separate statement of Mr Kavanagh, rather Core’s contentions include paragraphs referred to as a ‘statement’ of Mr Kavanagh.[5] The form of this evidence is not ideal, however the Tribunal has been given a degree of latitude to carry out its statutory functions and is not bound by technicalities, legal forms or the rules of evidence.[6] While not being bound by the rules of evidence, it does not follow that the Tribunal will invariably disregard those rules, but must base its determination on the facts properly before it.[7] Having regard to the Tribunal’s way of operating I have had regard to the full content of Core’s contentions, including the ‘statement’, for the purpose of this determination. I also note none of the other parties to this inquiry have made any submissions in relation to the form of Core’s contentions.
[5] See Core’s contentions at [7(a)-(k)].
[6] See s 109 of the Act.
[7] See Hughes v Western Australia at [15]–[16].
By 6 December 2022, all parties had agreed in writing that the matter should be determined on the papers, as permitted by s 151(2) of the Act.
On 21 December 2022, this matter was again reallocated, on this occasion from Member Cooley to myself. I now constitute the Tribunal for the purposes of considering the objection application. See also [11] above.
Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
Section 237(a): Is the grant of the licence likely to interfere directly with the Auvergne and Bullo group’s community or social activities?
The community and social activities of the Auvergne and Bullo group are an expression of their determined native title rights and interests. At least following amendments made to the Act in 1998, the Tribunal has proceeded on the basis that ‘... in a practical sense, the community or social activities encompassed by s 237(a) are essentially physical activities, even if they are carried out because of the spiritual relationship that a native title party has to the relevant land’.[8]
[8] See Tullock v Western Australia at [75]; Ngarlawangga v FMG at [75].
I note here the Determinations provide as follows:
The native title rights and interests of the estate group members that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those parts of the Determination Area identified in Schedule C being:
(a) the right to travel over, to move about and to have access to those areas;
(b) the right to hunt and to fish on the land and waters of those areas;
(c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Leases 1071 and 1081;
(e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas;
(f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
(g) the right to conduct and to participate in the following activities on those areas:
(i)cultural activities;
(ii)cultural practices relating to birth and death, including burial rites;
(iii)ceremonies;
(iv)meetings;
(v)teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs;
(h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs.
The interference contemplated in s 237(a) must be substantial in its impact upon community or social activities. Trivial impacts or impacts which are not relevant to the carrying on of such activities are outside the scope. I must also have regard to the context of any interference by considering constraints which may already be imposed on community and social activities by third parties and external regulation.[9]
[9] See Smith v Western Australia at [27] and Griffiths v BHP at [56].
In terms of this context, I note the Auvergne Pastoral Lease Determination overlaps Perpetual Pastoral Lease 1081 in relation to NT Portion 2676, held by Baines River Cattle Company Pty Ltd, and the Bullo River Pastoral Lease Determination overlaps Perpetual Pastoral Lease 1071 in relation to NT Portion 1587, held by Bullo River Pty Ltd. As prescribed in the Pastoral Land Act1992 (NT), these Perpetual Pastoral Leases grant the leaseholders rights of use for the passage of travelling stock and other pastoral purposes in perpetuity.
The Territory contends that the grant of the licence is unlikely to result in interference relevant to section 237(a) as the nearest Aboriginal community to the licence area is Bulla, located approximately 15 kilometres south. They also contend there is no evidence that any member of the Auvergne and Bullo group live on or near the licence area. Further, the Territory contend that because the proposed licence is for exploration, and the activities are localised, targeted, and intermittent in nature, the grant of the licence would not substantially interfere with any community or social activities. In making this contention, the Territory also refer to Core’s evidence as to proposed activities.[10]
[10] Territory contentions at [24].
For the native title party, Top End contends that there is a high probability that the grant of the licence will interfere directly with the carrying on by the Auvergne and Bullo group of their community and social activities, as the native title holders hunt on the licence area to feed their family and community, and gather materials and sacred objects from all around the licence area as a part of their traditional ceremonial exchange, Wirnan.[11]
[11] NTP contentions at [14].
The statement of Mr Roberts goes into some detail in relation to hunting and resource gathering occurring on the licence area. His evidence deposes that he hunts on the licence area, mostly with his sons and grandchildren, to catch barramundi (yinarrwa), wild pigs (ngurrgngurrg), wallabies (walbawung) kangaroos (jardugarl) and wild Turkey (jamut) ‘at least once a month, sometimes every week’.[12] Mr Roberts states that they ‘follow that track up to Bullo River, to the jump up, and then go all the way down to the Baines river visiting sites, hunting and fishing and travel all the way back to Timber Creek’.[13] He goes on to depose: ‘[w]e still go there for stories, dreaming and feed. We camp there and hunt goanna, turkey, pigeon, wild pig, wallaby and kangaroo. We fish too. We go once a month or more’.[14] Mr Roberts also talks about fishing at a spring called Nyalabarrbam, described as a sacred site near Revolver Springs,[15] and goes on to detail hunting for kangaroo, porcupine, and echidna at another site he says is linked to the same Jarnanga dreaming track, called Jingidim, a hill close to the Bullo River Station access road.[16]
[12] Roberts Statement at [16].
[13] Ibid at [16].
[14] Ibid at [29].
[15] Ibid at [41].
[16] Ibid at [42].
Mr Robert’s statement also addresses traditional ceremony exchange, Wirnan, occurring on or in the vicinity of the licence area. He describes that the people of his country ‘exchange material and sacred objects with Mirriwung, Gajerrong, Ngarinyman and Ngaliwurru people along the Victoria River, with mob in the Daly River region, in Wadeye, Palumpa and Peppimenarti’.[17] I note the northern portion of the licence area runs alongside the Victoria River, across areas subject to both the Determinations, including where Victoria River meets the Baines River.
[17] Ibid at [18].
Mr Robert’s evidence explains that he collects wood from Miniwirri (boomerang tree) and Gamanji (bulwaddy tree) on the licence area to make boomerangs and then trades them along the Wirnan track with neighbouring groups and ritual partners.[18]
[18] Ibid [20], [22]. Also see [42].
Mr Roberts also gives evidence of singing on the licence area.[19] He states:[20]
We ngurrumala can go there because we know that country, and the station manager is fine. But other Aboriginal people and whitefellas need to ask permission from traditional owners of the area because country doesn’t know them and country might make them sick if they don’t have proper permission or if they damage country. When I go on country or take people on country, I sing out to country so country knows its me and takes care of me and other people I bring. I sing out “Hello, I am the old man…I’m here to hunt…I brought visitors…I will care for country”.
[19] Ibid [17], [37], [38].
[20] Ibid at [17].
Another community or social activity addressed in Mr Robert’s evidence is that of camping. He deposes:[21]
Mulngu Mulngu is the point on the Pinkerton Range opposite to Walawutankit, within the Application Area. I learnt the stories of that site from my Grandad George. We still go there for stories, dreaming and feed. We camp there and hunt goanna, turkey, pigeon, wild pig, wallaby and kangaroo. We fish too. We go once a month or more.
[21] Ibid at [29].
Hunting; fishing; gathering and trading ceremonial material; camping; singing of songlines; and physical acts for protection of areas or sites, are all forms of community and social activity relevant to my consideration of s 237(a). As held in Bunuba v Western Australia:[22]
In relation to the Government party’s argument, I agree that evidence of the mere existence of songlines is not enough to support a decision that the expedited procedure does not apply. However, where evidence is provided that the community actively follows and sings the songlines as part of a physical community or social activity, this may support an inference that it is likely that the activities of the grantee party will interfere with this and hence the expedited procedure should not apply. This activity cannot be viewed in isolation, it should be considered in the context of all of the evidence provided as to what and how often social and community activities are carried out on the proposed licence.
[22] Bunuba v Western Australia at [42].
Top End’s reply summarises the community and social activities contended by the Auvergne and Bullo group:[23]
Laurie Roberts, a Ngarinyman man and senior traditional owner (ngurrumala) of Wurlayi country, has made a statement (the Roberts Statement) in which he says:
(a)the Application Area covers country that is mostly Wurlayi country; see [2];
(b)the Application Area is a hunting and fishing ground utilised by his family and traditional owners from the nearby Bulla Aboriginal community: see [15]-[16],[23].[41];
(c)Mr Roberts’s people carry on a traditional exchange ceremony called Wirnan, in which raw materials and sacred objects are taken from the Application Area and exchanged with members of other Aboriginal groups along the Wirnan track: see [18]-[22];
(d)Mr Roberts went through law at Davy Hole, a place on the Application Area: see [12]; and
(e)He and his family camp on the Application Area at a place called Mulngu Mulngu, where they share stories about dreamings, and hunt turkey, pigeon, wild pig, wallaby, kangaroo on the Application Area. This occurs at least once a month: see [29].
[23] NTP reply at [4], with the inclusion of the footnoted references.
I note the licence area covers a significant portion of the Baines River, including where the Bullo River meets with the West Baines River and travels north to the Baines River, as depicted in the mapping provided by the Territory.
Core’s evidence is that it has identified four principal target areas based on aerial photography that will direct the initial focus of its work in Year 1. Year 1 work is contended to include primarily determining the geological characteristics of target areas and undertaking limited rock chip and sediment sampling using hand equipment. In Year 2, Core submits it intends to continue geological sampling and geophysical surveying based on the information obtained in Year 1, and may undertake scout drilling. Core states that if scout drilling were undertaken in Year 2 they anticipate this will involve ‘drilling between one and three drill locations in one or more of the four target areas that have already been identified and that are each less than three hectares in area.’
The Tribunal has no evidence before it of Core’s operations beyond Year 2. Accordingly the issue of likelihood in this inquiry will be assessed by reference to the regulatory regime in force in the Northern Territory and assuming that whatever legal rights that would be given to Core under the licence will be exercised to the maximum legal extent beyond Year 2.
The grant of a licence under the MTA authorises the holder the exclusive right to explore for minerals in the licence area and to conduct activities in connection with such exploration, including (but not limited to) digging pits, trenches and holes, sinking bores and tunnels, geological survey, rock sampling, drilling, and removal and testing of ore or other substances, for an initial term not exceeding six years with the option to apply for renewal(s).
Member Shurven set out a helpful overview of the Northern Territory regime in the matter of Top End v Baudin.[24] In addition to the MTA, the following legislation and associated regulations are relevant when considering the regulatory regime in place in the Northern Territory:
a)Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act)
b)Mining Management Act 2001 (NT) (MMA)
c)Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act)
d)Heritage Act 2011 (NT) (NT HA).
[24] See Top End v Baudin at [6]-[9], [11]-[15] and [17]-[18].
The Territory has provided evidence of the template conditions applicable to the grant of exploration licences in the Northern Territory, referred to as the ‘First and Second Schedule Conditions’. In particular, the Second Schedule deals with the requirements for consultation with native title parties, including convening meetings, site protection and substantial disturbance (amongst other matters). Although consultation is required under this Schedule, I note there is no obligation for Core to stop activities if the native title party says there will be interference with community or social activities or disturbance to sites.
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.[25]
[25] See MMA ss 4, 35, 36.
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.[26]
[26] See Walley v Western Australia at [11]; Western Australia v Smith at [37].
There is no evidence before me to displace that presumption of regularity. Nevertheless, even acting within the boundaries the law, the grant of an exploration licence enables a grantee to do various activities, including drilling, sinking bores and digging pits. In the absence of detailed evidence as to the nature and extent of those activities, including when, where and how they will be conducted, the Tribunal has held it is difficult to assess that such activities would not be likely to directly interfere with community social and activities occurring within a licence area.[27]
[27] See Bunuba v Western Australia at [65].
The area of the proposed licence overlaps 69.48 square kilometres of the 1,651.5 square kilometres comprising the Bullo River Pastoral Lease Determination, or 4.21%, and 550.53 square kilometres of the 4,241.93 square kilometres comprising the Auvergne Pastoral Lease Determination, or 12.98%. The licence area also covers a significant portion of the Baines River, following the path of a number of key watercourses the subject of the Determinations. The significance of water for native title holders is well documented.[28] For native title holders, water (including watercourses; rivers; wetlands; watering holes; seas; and reefs) are a part of their traditional estates and directly linked to their culture, traditional laws and customs and social and community activities.
[28] See Aboriginal & Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, Native Title Report 2008 (Report No 2/2009, February 2009) Chapter 6; Marcia Langton, ‘Freshwater’ in Background Briefing Papers: Indigenous Rights to Waters, (Lingiari Foundation, 2002) 43; Marcus Barber, CSIRO, Indigenous water values, rights and interests in the Flinders and Gilbert catchments: a technical report to the Australian Government from the CSIRO Flinders and Gilbert Agricultural Resource Assessment, part of the North Queensland Irrigated Agriculture Strategy (Report, 2013) 16-17. See also Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 at [55].
The specific rights and conditions that a holder of an exploration licence must comply with are set out in the MTA, which operates alongside the MMA. These rights include various rights to disturb water. Should Core wish to undertake activities involving substantial disturbance, including to groundwater; alteration of river or creek banks, water courses and shore lines; or undersea mining and quarrying, they may apply for an Authorisation under the MMA.[29] The Authorisation application must be accompanied by a Mining Management Plan (MMP) relating to the activities.[30] In summary, substantial disturbance under s 35 of the MMA includes activities such as:
[29] See MMA ss 4, 35.
[30] See MMA s 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.
These entitlements and requirements are also reflected in the First and Second Schedule Conditions provided by the Territory. The Second Schedule provides that the licence holder shall take such steps as are practical to minimise disturbance to the soil, rocks, rock formations, creeks and watercourses, and all precautions necessary to prevent contamination of underground and surface waters in the licence area. However, these obligations to take precautions and such steps which are practical to minimise disturbance to water, do not go so far as to make disturbance unlikely. Neither is there any correlation to the determined native title rights and interests the Auvergne and Bullo group have in relation to water, including the right to hunt and to fish on the land and waters, and the right to take and use the natural water (subject to the right to take or use water held by the holders of Perpetual Pastoral Leases 1071 and 1081).
The Territory submit that the evidence provided by Top End in this matter does not establish that the grant of the licence would interfere substantially with the community or social activities of the native title holders, particularly because the proposed grant relates to exploration, and would by that nature, have a localised and intermittent effect.
In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way. However, particularly where there is no or limited evidence regarding the type of activity the grantee party intends to carry out, including when, where and how, over the duration of the grant, and there is evidence of community and social activities being carried out by the native title party on or in the vicinity of the proposed licence, the expedited procedure has been found to not apply.[31]
[31] See Monadee v Western Australia at [28]; Bunuba v Western Australia at [75].
In this matter Core has provided a brief overview of their proposed activities for Year 1 and 2. Core’s evidence is that they have identified four initial target areas, totalling less than 10 hectares, however they do not identify where those target areas are, either by providing a map or through a written description. Core also do not provide any evidence regarding whether members of the Auvergne and Bullo group will continue to have access to the licence, including the important watercourses and rivers, or their attitude towards the native title party and their community and social activities in general. In this regard, I note there is no evidence before me that there was any engagement with the Auvergne and Bullo group, regarding cultural heritage, access or otherwise, prior the initial target areas being identified. Further, Core have provided no evidence of the proposed activities for the remaining four years of the grant. Information regarding their proposed activities, and how such activities are intended to be conducted, including any mitigating circumstances which may impact the community and social activities of the native title party, are facts which can only be within the knowledge of the grantee. I apply a common sense approach to this evidence and the failure by Core to provide detailed evidence on these matters.[32]
[32] See Ward v Western Australia at [26].
Top End have provided evidence of the Auvergne and Bullo group’s community and social activities of hunting and resource gathering; wirnan or traditional ceremony of exchange of material and sacred objects;[33] fishing;[34] singing songlines,[35] all occurring on or near the licence area on a regular basis. I accept this evidence.
[33] Roberts Statement at [18]-[22].
[34] Ibid at [15]-[16].
[35] Ibid at[37]-[38].
As held in FMG v Yindjibarndi 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 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’.[36]
[36] FMG v Yindjibarndi at [75].
The physical community and social activities I have accepted are carried out by the Auvergne and Bullo group on the licence area, including those grounded in their spiritual relationship with the land and waters, are important demonstrations of their native title rights and interests and not of a trivial nature.
Taking all of the evidence before me into account, I am of the opinion that the granting of the proposed licence is likely to interfere directly with the continued carrying on of such community and social activities of the Auvergne and Bullo group.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the Auvergne and Bullo group, in accordance with their traditions?
Are there areas or sites of particular significance to the Auvergne and Bullo group 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.[37]
[37] See Cheinmora v Striker Resources at 34-35.
The relevant principles for consideration of s 237(b) were summarised by President Webb in Yindjibarndi v FMG as follows:[38]
(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).
[38] Yindjibarndi v FMG at [17].
While an explanation of a site’s particular significance does not need to be lengthy, ‘it does need to go beyond a mere claim that it is so, and the nature of the significance in accordance with the native title party traditions be explained’.[39]
[39] Wanjina-Wunggurrv Lucky Break Operations at [21].
The Territory’s evidence includes an AAPA Abstract Record detailing the existence of 14 recorded and registered sacred sites within and adjacent to the licence area. Of these sites, the Abstract identifies three registered sacred sites, two located within the licence area and the third located outside of the licence area to the north-east. The Abstract details 11 recorded sacred sites within the licence area, most of which are located adjacent to the Baines River.
The AAPA abstract record states:
· a recorded sacred site is a site that is known to the Authority but has not been registered and includes recorded sacred burial sites (noted with a green cross). The Authority may hold the information required to register a site should this become the wishes of the custodians. Alternatively, a recorded site may still require further research in order to obtain all necessary information;
· a registered sacred site is a site that has been added to the Register of Sacred Sites maintained by the Authority following the process set out in Part III Division 2 of the Sacred Sites Act.
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.
Part IV of the Sacred Sites Act deals with offences, penalties and procedures and importantly, there is no distinction made between registered and recorded sacred sites. Part IV provides that entry onto; work on or use of; or the desecration of, sacred sites is not permitted.[40]
[40] Sacred Sites Act ss 33, 34 and 35.
The Territory contends that any suggestion that the AAPA registered and recorded sacred sites are relevant should be given no weight. They appear to make this contention of the basis of the statement to follow that contention:
[t]here is no contention made by the Native Title Party that there is likely to be interference with the registered/recorded sites for the purposes of s 237(b). The fact that a site is recorded by AAPA does not necessarily lead to the conclusion it is a site of particular significance within the meaning of s 237(b) in the absence of specific evidence that demonstrates the significance of the site to the native title holders.
This contention appears to be based on an assumption made by the Territory that because the evidence provided by Top End does not specifically refer to the AAPA register, the sites therein recorded are not areas and sites in relation to which the native title party has provided evidence. I do not accept this proposition, for reasons I set out further below.
In any event, at least the 13 sacred sites appearing on the AAPA register and located wholly within the licence area are relevant to this inquiry and must be considered.
Rather unhelpfully, the AAPA Abstract Record and the evidence relating to sacred sites otherwise provided by the Territory does not provide any description or name of the registered or recorded sacred sites, making my task of assessing this evidence against the evidence provided by Top End in relation to sites more difficult. On the face of it, there is, naturally, no immediate correlation between a green dot appearing on a map, or a red triangle with an identifying number, to the description and name of a sacred site provided on behalf of the Auvergne and Bullo group. That is not to say a correlation does not exist, I simply make the point that this cannot immediately be gleaned from the register itself and further consideration is required. On this point also see [70]-[79] below.
Turning now to the evidence of the native title party, Top End contends there are a number of sites within the licence area that are of particular significance to the Auvergne and Bullo group in accordance with their traditional laws and customs. The statement of Mr Roberts provides that there are many sacred sites within the licence area that he and his family regularly visit for ceremonial, hunting and visiting purposes, including some highly significant sites that cannot be discussed publicly under traditional and law and custom, located on the northern part of the proposed licence area.[41]
[41] Roberts Statement at [23]-[24].
Mr Roberts specifically identifies three groups of sites linked to associated dreamings as follows:
(a)Walujapi/Namij (Black-Headed Python) dreaming connected to sites Bulgal bulgal (Davy Hole), Yalalbim, Walawutankit, Mulngu mulngu and Gagami;
(b)Malajaku (Goanna) dreaming track connected to sites Gagami, Dinyinkirrin and Milli Milli; and
(c)Jarnanga (Bush-Tailed Possum) dreaming connected to sites Jingidim, Jalajangim (Razorback Hill), Lantika, Nganaki, Mulngu Mulngu, Revolver Spring and Gagami (Karrcumby Peak).
Black-headed Python sites
Mr Roberts describes the Black-headed Python sites as being for the Walujapi/Namij (Black Headed-Python) dreaming.[42] He talks about that collection of sites being linked to a dreaming track running all along the black soil plain along the West Baines River telling a story of the track travelling from Legune and Bullo River pastoral lease areas and descending into the Pinkerton Range, and then on into the West Baines floodplain. He gives evidence that Walujapi then travels down streams to the site Gagami, on Karracumby Peak, also located within the licence area, and going back to Walawutankit at the junction of the East and West Baines rivers, and then further following East Baines River.
[42] Ibid [25]-[33].
Mr Roberts describes some of the sites that Walujapi/Namij went through include ‘Davy Hole, Yalalbim, Walawutankit, Mulngumulngu and Gagami’.[43] He says ‘[w]e are all linked together through Walujapi with that Mudbarra and Jingili mob (people from Top Springs, Murranji and Beetaloo areas)’.[44]
[43] Ibid [27].
[44] Ibid [26].
Bulgal bulgal or Davy Hole is one of the sites associated with the Black Headed-Python dreaming. Mr Roberts describes it as a small billabong located on the West Baines River within the licence area.[45] Mr Roberts also deposes he ‘went through law’ at Davy Hole. Mr Roberts’ evidence is that Davy Hole is a place used for ceremony and law business by the Auvergne and Bullo group and is also associated with the Black Headed-Python dreaming.[46]
[45] Ibid [28].
[46] Ibid [12].
Mr Roberts deposes another site Walawutankit ‘is where the East and West Baines rivers meet. It is on the border of the Application Area’. Returning to the evidence provided by the Territory, I note there is an AAPA registered sacred site (4966-174) in the area of the junction of the East and West Baines rivers. This registered site may be or otherwise relate to the Walawutankit site described by Mr Roberts.
There is also an AAPA recorded site in the area described by Mr Roberts as being where sacred site Yalalbim is located. Mr Roberts says ‘Yalalbim is a site that goes right through the mouth of the cliffs of the Pinkerton range. It is 3 – 4 kms north of Davy Hole’.[47]
[47] Ibid [30].
Another sacred site, Gagami, is described as being linked to all three dreaming tracks.[48] Mr Roberts describes this site as ‘a spring coming from a hill which is called Karracumby Peak. It is in the northern part of the Pinkerton range, within the Application Area’.[49] The AAPA record also identifies two recorded sacred sites in the area where Karracumby Peak is located.
Malajaku (Goanna) sites
[48] Ibid [25], [32], [35], [39].
[49] Ibid [32].
Mr Robert describes the Malajaku (Goanna) dreaming sites as including Gagami, a spring coming from Karracumby Peak and crossing the Walujapi/Namij also travelling through there, Dinyinkirrin and Milli Milli.[50] He describes Milli Milli, called ‘TS Crossing’ as being on the northern bank of the Baines River within the licence area. Mr Roberts’ deposes that these sites are all important because ‘they are sung in the Gujingga ceremony. I have to sing out to country when I go on these sites.’[51] I note TH Crossing on the bank of the Baines River is depicted in the topographic map provided by the Territory. Based on the evidence before me, I accept that TH Crossing is the site Mr Roberts describes as Milli Milli or TS Crossing. The reference to TS Crossing rather than TH Crossing does not detract from the description and correlation of the evidence I otherwise find.
Jarnanga (Bush-Tailed Possum) sites
[50] Ibid [34]-[38].
[51] Ibid [37]-[38].
Mr Robert describes the Jarnanga (brush-tailed possum) dreaming as traveling in a north east direction across the licence. He deposes that sites linked to that dreaming track and located on the licence area include Jingidim, Jalajangim (Razorback Hill), Lantika, Nganaki, Mulngu Mulngu, Revolver Spring and Gagami (Karracumby Peak).[52] Mr Roberts explains that this group of sites ‘are part of another similar but different Gujingga song to the Goanna. This song links together Mirriwung and Gajerrong-speaking groups with Ngarinyman Wurlayi. Anyone can listen to this song.’[53]
[52] Ibid [39]-[42].
[53] Ibid [40].
The Jingidim site, Mr Roberts details, is ‘a hill close to the Bullo River station access road’.[54] I note there are two AAPA recorded sites in this area, with one being located closer to the access road. He also states Jalajangim is Razorback Hill, a hill located in the southern part of the licence area. The AAPA record also identifies a recorded sacred site in this area.
[54] Ibid [42].
As my overview of the evidence at [70]-[78] above demonstrates, when considering the evidence of the Territory against the evidence of the native title party I find there are identifiable correlations between the locations of sites noted on the AAPA record and the sites described in detail by Mr Roberts. The evidence of the Territory in this regard supports the assertions made by the Auvergne and Bullo group that the area is rich with sites.
Dreaming tracks
In addition to identifying where sites linked to the dreaming tracks are and how they are linked to the Auvergne and Bullo group, neighbouring groups and the dreaming track itself, Mr Roberts also deposes as to why he is concerned about interference.[55] He describes protocols for entering the sites, including the requirement to ask permission from his ‘mob’. Mr Roberts also states: ‘[a]s a senior ngurrumala, I’m responsible for sacred sites on my country, or else I will get in trouble by other groups that the Walujapi dreaming passes through, and there are many.’[56] He talks about the dangers associated with the areas and sites, including the risks of ngurrumala and outsiders getting sick if they do not follow the traditional protocols, and he describes protocols such as needing to talk to the saltwater crocs in language to calm them and make them stay away.[57].
[55] Ibid [43]-[50].
[56] Ibid [45].
[57] Ibid [47].
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).[58] The particular significance of a site or area associated with a dreaming track or songline must be sufficiently explained. Connection with the dreaming track or songline alone is insufficient.
[58] See Allen v Diversified Asset Holdings; Yinhawangka v Korab Resources; Tjurabalan v Rich Resources Investments.
In Andrews v Northern Territory Member Sosso explained:[59]
In short while Dreaming Tracks are significant, not all Dreamings are of equal importance, and not all places along a Track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance. The Tribunal will readily accept that evidence by a person having traditional authority of a place as a Dreaming site is a matter of great relevance to a section 237(b) assessment. However the identification of a place as a Dreaming site does not automatically result in a finding of significance. The particular sacredness of the site in the scheme of things needs to be explained before a finding of significance can be made. There are some circumstances where the very nature of the country, as evidenced by the number of recorded/registered or identified sites may lead to a finding that the locality is “site rich”. In such circumstances the Tribunal is entitled to make certain inferences. However, this is not such a case as there is no evidence that the land and waters comprising the proposed tenement are site rich.
[59] Andrews v Northern Territory at [124].
In the matter of Ngarlawangga v FMG the Tribunal found that a site associated with a dreaming track was of particular significance, however the Tribunal was not satisfied that the dreaming track or songline it was said to be connected to was able to be located, stating: [60]
‘The Native Title Party’s emphasis seems to be on interference with the songlines within the proposed tenement and Giles Point, leading to interference with Giles Mini. However, the only evidence as to such songline, (or songlines) is the assertion that it, (or they) is (or are) to be found within the proposed tenement and surrounding areas. There is no specific evidence as to location. In the absence of such knowledge, it is difficult to draw any inference as to the likelihood of interference
…
On the other hand, I accept that Giles Mini is a site of particular significance because of its association with the Spearhole Creek Dreaming. (text removed). The concern about interference with Giles Mini seems to be based upon the proposition that interference with the Spearhole Creek Dreaming or the creek, itself, within the proposed tenement, may cause interference with Giles Mini, apparently because those sites are connected by unlocated songlines. There is no indication as to how, or where any relevant interference may occur within the proposed tenement, or as to the nature of any resulting interference with Giles Mini, other than the suggestion that shared songlines or storylines are involved. There is no evidence explaining such connection, or even locating the songlines or storylines in question.
In fact, the Native Title Party does little more than assert compliance with s 237(b), without providing any supporting evidence. There is no apparent reason to fear interference with Giles Mini. I conclude that such interference is unlikely. To the extent that it may matter, I also conclude, for similar reasons, that interference with Giles Point or Giles Mini 15 is unlikely.’
[60] Ngarlawangga v FMG at [147], [181]-[182].
Distinguishable from Ngarlawangga Aboriginal Corporation v FMG Pilbara, in this matter:
(a)the dreaming tracks do not simply traverse the licence, but the evidence is they run through it;
(b)further, the specific sites linked to the dreaming tracks are identified and described, and are located within the licence area; and
(c)there are 13 registered or recorded sites within the licence area, many of which are located in the vicinity or location of the sites identified by the native title party (in Ngarlawangga v FMG there were no registered sites).
Site rich
The land and waters the subject of the proposed licence is an area rich with sites. By the Territory’s own evidence there are 13 sacred sites recorded or registered on the AAPA register located within the licence area. These sites all generally appear adjacent to the various watercourses and rivers located within the licence area.
The term ‘site rich’ used in this context must not be taken to have a special or particular meaning. The fact that an area contains many sites is not, of itself, enough to address the criteria I must consider pursuant to s 237(b). Each area or site must be considered by predictive assessment against the relevant principles; that is: is the area or site of particular significance to the Auvergne and Bullo group in accordance with their traditions? And is interference likely?
The area or site must be of special or more than ordinary significance to the native title holders.[61] It must be known and must able to be located and the nature of its significance explained.[62]
[61] Cheinmora v Striker Resources at [20].
[62] Western Australia v McHenry at 14; Silver v Northern Territory at [91].
The limitations on the use of the term site rich was explained by Member Shurven in Hale v Mings Mining Resources:[63]
The Tribunal has found on a number of occasions that the term ‘site rich’ is not a particularly helpful lens through which to view the issues that need to be determined in an inquiry such as this. To the extent that ‘site rich’ has been used in previous decisions, it has reflected an evidentiary conclusion about the existence of areas or sites of particular significance and the likelihood of interference (see Lungunan v Geotech International at [43]; Campbell v Murchison Metals at [55]). The central issue remains whether the grant of the licence is likely to interfere with areas or sites of particular significance. The nature or distribution of the areas or sites may have a bearing on the risk of interference. However, the evidence must establish the existence of areas or sites likely to be affected by the grant of the licence. It is not enough to simply assert an area is ‘site rich’ or provide reasons why sites that may exist in a given area have not been identified.
[63] Hale v Mings Mining Resources, at [81].
When considering if an area is ‘site rich’ in the context of dreaming tracks or song lines particularly, a more accurate term may, in any event, be ‘cultural landscape’. The term cultural landscape appears in The Burra Charter: Australia ICOMOS Charter for the Conservation of Places of Cultural Significance, 2013 (The Burra Charter). The Burra Charter defines place to mean a geographically defined area that may include elements, objects, spaces and views, having tangible and intangible dimensions. The explanatory notes give further context, and detail that place has a broad scope and includes natural and cultural features for example; a cultural landscape, a road or travel route, a community meeting place, and sites with spiritual or religious connections.
Consideration under s 237(b) requires more than an assertion that an area or site has particular significance, such a bare statement carries little weight. What is required is the nature of its significance explained to the Tribunal, and it must be known and able to be located. Significant detail or specificity is not required, however more than a superficial reading of the evidence must be undertaken.[64]
[64] Wanjina-Wunggurr v Western Australia at [42]-[43].
Returning to the evidence in this matter, the native title party has given evidence explaining where the sites are in connection with the three dreaming tracks and why they are important. The evidence regarding the location of these sites varies in detail, but precision is not what is required. Taking a more than superficial reading of the evidence I accept they have been sufficiently described. Further, the three dreaming tracks do not simply traverse the licence area; they run through it. Mr Roberts has given evidence that the sites have significance from a ceremonial perspective and carry with them a number of traditional protocols that must be followed.
I find, as evidenced by the number of recorded, registered and identified sacred sites, the area of the proposed licence is imbued with sites. When considered as a whole, I accept that the evidence before me demonstrates that the three dreaming tracks and the individual but interconnected sites linked to the three dreaming tracks, together form a cultural landscape of particular or more than ordinary significance to the Auvergne and Bullo group. For the avoidance of doubt, I do not conclude the entirety of the licence area is of particular significance to the Auvergne and Bullo group, my findings are limited to the three dreaming tracks and the individual sites linked to such tracks.
Within the cultural landscape of the three dreaming tracks, I make further comment on one individual site. Bulgal bulgal or Davy Hole, one of the sites associated with the Black Headed-Python dreaming, is a place used for ceremony and law business by the Auvergne and Bullo group and the site where Mr Roberts went through law in accordance with their traditions.[65] Law and ceremonial grounds are of special or more than ordinary significance to native title holders and I find this site is of particular significance the Auvergne and Bullo group, in addition to or outside of its connection to the dreaming track and the broader cultural landscape.
[65] See paragraph [71]-[72] of these reasons.
In summary, I accept that the three dreaming tracks and their connected sites are areas or sites of particular significance to the Auvergne and Bullo group in accordance with their traditions, and in addition the sacred site Bulgal bulgal or Davy Hole, is of particular significance to the Auvergne and Bullo group in accordance with their traditions.
If yes, is the grant likely to interfere with such sites?
Core’s evidence is that all activities will be undertaken in compliance with Second Schedule Condition 8, and on that basis they will not undertake any activities without first consulting with the AAPA and inspecting the Register of Sacred Sites. Core contends that the consultation and inspection required by Condition 8 will inform them of areas ‘to avoid in their entirety – including additional buffers around those areas – without having secured its own Authority Certificate and/or consulted with the native title holders.’ The Second Schedule Condition 8 provides:
Prior to carrying out any work in the licence area the title holder 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.
The evidence provided by the Territory indicates two AAPA authority certificates were issued in 1996 (C1990/155, C1996/065) in relation to an area to the southernmost part of the proposed licence area towards Auvergne. The other authority certificate depicted on the AAPA map is marked at the northernmost part of the licence area adjacent to the Victoria River, being C1997/172. The map does not mark or otherwise identify the location of C1999/038 or C2001/022 appearing in the table. In any event, I note that all of the authority certificates were issued some time ago between 1996 and 2001, and more than 10 years before the Determinations. Further, the area subject to these historical authority certificates do not overlap any of the recorded or registered sacred sites in the licence area or appear to traverse the dreaming tracks and associated sites.
Top End contend an inspection of the AAPA records does not provide accurate information about the presence of sacred sites on the licence area as the AAPA register only lists sites that have been registered and recorded by the AAPA. They submit that the Northern Land Council’s (NLC) sacred sites data shows multiple sites in locations which do not appear on the AAPA abstract of records provided by the Territory in this matter. Unfortunately, Top End have not put into evidence a copy of such NLC records.
I accept Top End’s contentions that the AAPA records are not necessarily an exhaustive list of all areas or sites of importance to a relevant native title holder and that the accuracy of the location of recorded sites cannot be guaranteed. In fact, these matters are also conceded in the evidence of the Territory. I note the covering letter to the Abstract Record states:
[t]his information provided to you in this abstract is for information purposes only and cannot be relied upon as an exhaustive list of sacred sites in the area. There may be other sacred sites in the parcel of land of which the Authority is not yet aware.
Further, the Abstract map notes:
[t]he Sacred Site point is indicative of the general sacred site location and does not necessarily represent the location of any specific feature of the sacred site or the site extent and is not an exhaustive record as unrecorded site [sic] may exist in the area.
Whilst the Tribunal, in undertaking its predictive assessment, can have regard to the attitude of a grantee party to enter into a heritage protection agreement, and other evidence directed towards their attitude to the protection of Aboriginal heritage and sites, the weight to be given to those matters will depend on the overall circumstances.[66]
[66] See Champion v Western Australia at [29]-[35]; Yindjibarndi v FMG at [32].
In this matter Core do not provide any evidence of a willingness to enter into a heritage protection agreement with the Auvergne and Bullo group in relation to the grant of the licence.
The Territory submits that there is a comprehensive and robust regulatory regime in place in the Northern Territory for the protection of areas and sites of significance which includes extensive standard conditions to regulate Core’s interactions with native title holders and minimise effects of exploration activities on sacred sites.
Top End contends in its reply that an inspection of the AAPA register, as Core is required to do, will not be ‘sufficient to protect and understand the areas of spiritual significance, nor will compliance with existing Tenement conditions be sufficient to mitigate the risk of interference.’[67] They also submit the consultation requirement in the Second Schedule offers minimal protection from interference as Core is not required to respond to or act on any requests made by the Auvergne and Bullo group even where the proposed activities require such a meeting. In relation to the proposed activities identified by Core, Top End notes limited information is provided and it is limited entirely to Years 1 and 2 of a six year grant. Top End note that of particular concern to the native title holders is the fact that four initial target areas have already been identified by Core, and although it is not clear where these target areas are, the grantee has identified such areas without any consultation with the Auvergne and Bullo group and no awareness as to areas to avoid.[68]
[67] NTP reply at [37].
[68] NTP reply at [41].
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.[69]
[69] See Walley v Western Australia at [11].
There is no evidence before me to displace that presumption of regularity. Nevertheless, the presumption of regularity does not lead me inexorably to find that no such likelihood of interference exists, particularly in areas with numerous areas or sites of significance.[70]
[70] See Ward v Ausquest at [61].
This was outlined in detail in the matter of Miriuwung Gajerrong v Seaward Holdings:[71]
Taking all these factors into account and particularly the nature and extent of the sites of particular significance which have been identified and that the area of the tenement is site rich I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act between the parties take place and agreement is reached about the doing of the future act, or in the absence of agreement the issues relating to the effect of the grant on the registered native title rights and interests are fully explored by way of arbitral inquiry (ss 35, 38). The risk of interference can be exemplified by the number of registered mythological sites which are undoubtedly sites of particular significance to the Miriuwung Gajerrong native title holders. The Tribunal is aware that the general location of the registered sites is known but their specific location can be, depending on the nature and significance of the site, contained within an area ranging up to 10 square kilometres. Because of this the Tribunal has found in some cases that where the mining tenement cover areas that are rich in sites including registered sites, that consultation and discussion between the native title party and grantee party is necessary to ensure that the sites are not likely to be interfered with. In this case all but one of the registered sites are also designated Protected Areas under the Aboriginal Heritage Act and will be excluded from the grant (see endorsement referred to above). However, the same issues relating to their precise location still arise making it important for consultation to occur to avoid interference with them. This is particularly the case where there is more than one registered site which is a Protected Area. Unless there is close liaison between the native title party and grantee party through negotiations and agreement there is a real risk of interference with them.
[71] Miriuwung Gajerrong v Seaward Holdings at [46].
In this inquiry, the Tribunal has no evidence before it of Core’s operations beyond Year 2. Accordingly, I must proceed on the basis that Core will, subject to the regulatory regime in force, fully exercise its legal entitlements under the grant beyond Year 2 and consider this against my assessment of the issue of the likelihood of inference. Further, the detail provided in relation to Years 1 and 2 focuses on four target areas, the location of which have not been identified to the Tribunal or the parties. These target areas may overlap the numerous sites of particular significance in the licence area and Core have provided no evidence that they would seek to avoid interference with such sites; they simply make a bare contention that such interference is unlikely.
As set out above, s 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.[72] Evidence with respect to the traditional laws and customs of the native title party is as relevant to my consideration as the regulatory regime in place.
[72] FMG v Yindjibarndi at [75].
As set out above, I am satisfied that there are a number of sites of particular significance to the Auvergne and Bullo group in the proposed licence area. When evaluating the likelihood of interference pursuant to section 237(b), it is open to the Tribunal to take into account the sheer number of sites that have been recorded or registered by the AAPA.[73] In this matter, I have had regard to the nature and distribution of the areas or sites of particular significance, which increases the risk of interference. I am satisfied there is a likelihood of interference with one or more of the identified sites. I have reached this conclusion having careful regard to all the evidence before me, and despite applying the presumption of regularity. I note the type of interference contemplated by s 237(b) may be slight, as it must be evaluated by reference to the traditions of the native title holders, and is of a different nature and degree to the interference contemplated by s 237(a).
Section 237(c): Is the grant of the licence likely to involve major disturbance to any part of the licence area?
[73] See Ward v Ausquest at [64].
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.[74]
[74] See Cosmos v Croydon Gold at [29]; Lungunan v Geotech International at [50].
Generally, unless the matter falls within a category of exceptions, the Tribunal has found that the grant of an exploration licence, or the rights created by the grant, is unlikely to involve major disturbance to land and waters.[75] However, the Tribunal must have regard to the overall circumstances including the nature of the locality and the regulatory regime in place.[76]
[75] See Champion v Western Australia at [77]; Yindjibarndi v FMG at [143].
[76] See Champion v Western Australia at [77]
Top End do not make any contentions in relation to s 237(c) and there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to any of the land or waters concerned.
The Tribunal takes a common sense approach to the evidence.[77] In the absence of any material or substantive contentions addressing this issue, I am not in a position to conclude major disturbance is likely. Therefore, I find disturbance within the meaning of s 237(c) is unlikely.
[77] See Ward v Western Australia at [26].
Conclusion
In relation to my considerations under s 237(a), I accept the evidence of the Auvergne and Bullo group’s community and social activities including hunting and resource gathering; wirnan or traditional ceremony of exchange of material and sacred objects; fishing; singing songlines, and that such activities all occur on or near the licence area on a regular basis. Such physical community and social activities are not of a trivial nature.
In the absence of detailed evidence as to the nature and extent of the proposed exploration activities, including when, where and how they will be conducted, it is difficult to assess that such activities would not be likely to directly interfere with community social and activities occurring within the licence area. I have found that the granting of the proposed licence is likely to interfere directly with the continued carrying on of such community and social activities of the Auvergne and Bullo group.
In relation to my considerations under s 237(b), I have found that the area comprising the three dreaming tracks and their connected sites is of particular significance to the Auvergne and Bullo group in accordance with their traditions. In addition, the sacred site Bulgal bulgal or Davy Hole is of particular significance to the Auvergne and Bullo group in accordance with their traditions. For the reasons set out above, I am also satisfied there is a likelihood of interference with one or more of these sites or areas of particular significance.
Determination
I determine that the grant of exploration licence EL33023 is not an act attracting the expedited procedure.
Lisa Eaton
Member
24 August 2023
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