Top End (Default PBC/CLA) Aboriginal Corporation v Baudin Resources Pty Ltd - [2022] NNTTA 61

NATIONAL NATIVE TITLE TRIBUNAL

Top End (Default PBC/CLA) Aboriginal Corporation v Baudin Resources Pty Ltd & Another [2022] NNTTA 61 (28 September 2022)

Application Nos:

DO2021/0005, DO2021/0008, DO2021/0009

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

- and -

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

Top End (Default PBC/CLA) Aboriginal Corporation (DCD2007/002, DCD2012/007, DCD2012/011)

(native title party)

- and -

Baudin Resources Pty Ltd

(grantee party)

- and -

Northern Territory of Australia

(Government party)

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

Tribunal:	Member H Shurven
Place:	Melbourne
Date:	28 September 2022
Catchwords:	Native Title — Expedited procedure — Northern Territory — multiple exploration licences — multiple sites asserted to be of particular significance — s 237 of the Native Title Act 1993 (Cth) — operation of the Northern Territory regulatory regime — determination that the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Mineral Titles Act 2010 (NT) ss 27, 118 Mining Management Act 2001 (NT) s 35 Native Title Act 1993 (Cth) ss 29, 237 Northern Territory Aboriginal Sacred Sites Act 1989(NT) ss 3, 5, 22, 27, 33, 34, 35, 37
Cases:	Andrews v Exploration & Resources Development Pty Ltd [2002] NNTTA 170 (Andrews v Exploration & Resources Development) Jackson v Northern Territory of Australia [2012] FCA 668 (Jackson v Northern Territory) King v Northern Territory of Australia [2007] FCA 1498 (King v Northern Territory) Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 (Lockyer v Western Australia) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others [2021] NNTTA 59 (Nyalpa Pirniku v Anderson) Raymond v Northern Territory of Australia [2012] FCA 672 (Raymond v Northern Territory) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd & Another [2022] NNTTA 51 (Top End v Baudin) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd and Another [2018] NNTTA 73 (Wanjina-Wunggurr v Elderberry) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title party:	Eleanor Kay, Northern Land Council
Representative of the grantee party:	Bradly Torgan, Ward Keller
Representative of the Government party:	Stewart Bryson, Solicitor for the Northern Territory

REASONS FOR DETERMINATION

The Government of the Northern Territory (the Territory) proposes to grant exploration licences EL32724, EL32729 and EL32730 to Baudin Resources Pty Ltd (Baudin/grantee party/GP). The Territory gave public notice of this proposal, as required by s 29 of the Native Title Act (Cth) (the Act/NTA). Included in each notice is a statement that the Territory considers the proposed grants attract the expedited procedure, which is described as follows in s 237 of the Act:
A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
An objection was made to the National Native Title Tribunal by The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (Top End) against the application of the expedited procedure to the grant of the proposed licences. Top End was appointed as the prescribed body corporate for the native title parties who have rights and interests in that area of land. Information about the native title parties and the rights and interests they hold is outlined in the Federal Court decisions of King v Northern Territory, Jackson v Northern Territory, and Raymond v Northern Territory.
The objections were made on the basis of all limbs of s 237. During the inquiry, the native title party confirmed they did not pursue s 237(c). On a common sense reading of the available information, I could find nothing that would offend s 237(c). As such, the remainder of this determination focusses on s 237(a) and s 237(b). I have been appointed by the President of the Tribunal to determine whether the proposed grants attract the expedited procedure (see s 32 of the Act).
The native title parties hold non-exclusive native title rights and interests in each of the proposed licences. The proposed licences are adjacent to each other, and the size of each is approximately: 818 square kilometres for EL32724; 670 square kilometres for EL32729; and 755 square kilometres for EL32730.
Baudin’s applications for the proposed licences (as required by ss 27 and 118 of the Mineral Titles Act 2010 (NT) (MTA) were included in the Territory materials for this inquiry. Each application was for a six year period. Baudin’s contentions (at 9) state the three proposed licences in this inquiry are known as the Dunmarra Project, and the applications indicate they will be exploring for gold and copper. The Project area also includes EL32723 which was initially part of this inquiry but the objection to the expedited procedure was withdrawn on that tenement. The whole Project area extends approximately 100 kilometres north to south.

The Northern Territory Regulatory Regime

The regulatory regime in the Northern Territory centres around the following legislation (and associated regulations):
·Mineral Titles Act 2010 (NT) (MTA)
·Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act)
·Mining Management Act 2001 (NT) (MMA)
·Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act)
·Heritage Act 2011 (NT)
I adopt my comments and reasoning from Top End v Baudin (at [6]-[9], [11]-[15] and [17]-[18]) in relation to the Territory regulatory regime.

Party Materials

Baudin provided contentions, a number of annexures including mapping, and an affidavit from their Exploration Manager, Sarah James. Ms James outlines that she previously held the position of Senior Exploration Geologist with Baudin. Baudin’s representative, Bradley Torgan, also provided an affidavit which outlined the circumstances of the lack of a signature on Ms James’ affidavit and I accept Ms James’ affidavit in that context.
Top End provided contentions and a reply to the Territory and Baudin materials, as well as mapping and the witness statements of Pompey Raymond and Harold Dalywaters Indjamardi Jangari. The Territory (at 50) argue Top End have not adduced any evidence ‘other than the generic descriptions given by the lay witnesses’. However, I am satisfied the evidence provided is not in the nature of lay witnesses, but rather from senior members of the native title party community who have particular and specialised knowledge of the country for which they speak. Both Mr Raymond and Mr Dalywaters outline their authority to speak for areas of the proposed licences and I accept those statements. Eleanor Kay, representing Top End, filed an affidavit outlining the circumstances of the preparation and settling of the witness statements. I am satisfied as to the difficulties in having the witnesses sign the documents, given the remoteness, Covid restrictions, health and technological issues. I accept the veracity of both witness statements.
The Territory materials for the proposed licences include:
·     Topographical and tenure maps
·    Abstract of Records from the Aboriginal Areas Protection Authority (the Authority/AAPA) (Abstract/s)
·    Baudin’s exploration licence application documents
·     Conditions applicable to the grant of an exploration licence
·     Information about current and historic overlapping titles for the relevant areas
The Territory topographical maps (at annexure 1 and 1(b)) shows the location of Aboriginal archaeological sites and heritage sites on EL32724. One of the Aboriginal archaeological sites is several kilometres from Walira (Frew Pond).
The same topographical maps also show heritage sites on the other two proposed licences, some of which correspond to the approximate location of Jurriyi, Tinjalkuju and Kurditkuji as described in the affidavit evidence of the native title parties (as outlined in my consideration of s 237(b) below).

Baudin’s scope of works and proposed activities

Baudin notes (at 10) that Aboriginal communities exist at the southern end of the Dunmarra Project area, namely: Marlinja (approximately 7 kilometres south of EL32730); Jingaloo (approximately 8 kilometres east of EL32730), and Lily Hole (approximately 18 kilometres east of EL32730).
Baudin’s contentions summarises Ms James’ evidence in relation to the exploration program. The contentions (at page 3) outline that ‘Only a small number of exploration personnel are expected on a tenement at any one time during exploration activities’, and such activities are likely to include initial mapping and surveying in years 1 and 2, which may result in drilling in later years. If drilling occurs, it is said to be likely ‘up to five holes on the combined EL32729 and EL32730 and up to another five holes on the combined EL32723 (which is not the subject of an expedited procedure inquiry) and EL32724. This is because the drilling program is project-based rather than tenement-based, and the project areas encompass more than one tenement’.
Baudin goes on to explain (at page 3) that ‘The area of direct impact from a drill site is only about 15-25 m², or a maximum of 125 m2 for five holes. By way of comparison, the smallest of the three tenements at issue, EL32729, is over 672,000,000 m2. The impact is also temporary. Any exploratory drilling in years 5 and 6 would likely remain within the envelope created in years 3 and 4’.
Baudin’s contentions (at 12) note the AAPA shows recorded sacred sites exist on each of the proposed licences. Baudin also assert (at 12 and their Annexure 3) there are Restricted Work Areas (RWA) on the proposed licences as provided for in Authority Certificates available for public inspection. A Restricted Work Area is an area identified in an issued Authority Certificate – it shows an area which had restrictions on the type of activities that were or were not permitted in that area.
The map attached to the AAPA Abstract shows Restricted Work Areas as well as recorded sites. The map is somewhat difficult to read in terms of the RWA as it is densely covered by recorded sites and their associated record number. It does appear that Frew Pond and Peter’s Hole correspond to areas on the map which are recorded sites and which have a RWA associated with that site. There is also a site corresponding with the area of Number 9 Bore with an apparent RWA, and sites on or near the area described as Jurriyi, Tinjalkuju and Kurditkuji, parts of which have RWA’s.
For the sites or areas which correspond to a recorded site (see [17] above), and as per s 19F of the Sacred Sites Act, the Authority must consult with the custodians of sacred sites on or in the vicinity of the land to which the application relates that are likely to be affected by the proposed use or work. Condition 6(a) of the Second Schedule Conditions also outlines that:
The title holder [Baudin] shall, prior to the commencement of exploration activities other than reconnaissance, convene a meeting on the licence area (or the nearest convenient locality) with registered native title claimants or holders to explain the exploration activities.
The Authority is established under s 5 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act). The Territory (at 4 and supported by their Document 3), outlines that the Authority has indicated there are RWAs in the areas of the proposed licences which are provided for in previously issued Authority Certificates. I do note that the Authority’s documentation is qualified to outline it ‘was not necessarily an exhaustive list and there may be other sites’. The information from the Authority also noted that ‘A person is only permitted to enter and remain on a sacred site, carry out works on a sacred site, or make use of a sacred site in accordance with an Authority Certificate granted by the Authority (refer ss 22 and 25 of the Act, also see ss34 and 35 [the Sacred Sites Act]’.
Party materials refer to the relevance of an Authority Certificate. An Authority Certificate protects sacred sites by setting out conditions for using or carrying out works of an explorer, for example, on an area of land. One question I need to consider is the extent to which such mitigates against interference with a site of particular significance for s 237(b) of the Act.
As noted in the Top End reply (at 41), the Authority’s explanatory notes to their Abstract of Records states that ‘You cannot rely on an Authority Certificate that was issued to another person’. Baudin has not asserted the previous Authority Certificates were issued to their company. An Authority Certificate may be issued if an agreement has been reached between the Aboriginal custodians of any affected sites and the applicant for the Authority Certificate.
The Sacred Sites Act outlines the offences under that Act which prohibits certain activities related to sacred sites (see ss 33-35), and the defences available (see s 36). The prohibitions to certain activities may not apply to a person who holds and complies with an Authority Certificate (see for example s 22, which sets out what an Authority Certificate is). As outlined in s 25, the effect of the Authority Certificate includes being able to ‘enter and remain on that part or those parts of land the subject of an Authority Certificate...and do such things on the land as are reasonably necessary for carrying out that work or making that use of the land’.
In relation to the Heritage Act, the Territory contentions (at 53) refer to ss 111-113, noting that this Act ‘protects, inter alia, Aboriginal archaeological places, objects and relics by making it an offence to damage such a place or object and removing part of a heritage place or object’. Baudin notes (at 64-65) that ‘Heritage places or objects are protected under the Heritage Act 2011 (NT)’ and that ‘Information provided by the Government Party identifies a small number of Aboriginal heritage sites on EL32724, mostly isolated stone artefacts and all but one of which has been transferred to the Museum and Art Gallery of the Northern Territory...’ That artefacts have been found on EL32724 is consistent with Mr Dalywaters comments (as outlined below in relation to Peter’s Hole). Baudin also note other sites found on the two other proposed licences and that ‘All but one of the sites appear to be on the Highway verge, suggesting discovery during road construction or maintenance’. I presume this refers to the Stuart Highway which runs through the eastern area of these licences.
Baudin’s contentions (at 21-28) outlines that in years one to two, rock chip and soil sampling, and geophysical sampling (by air or on ground) will be undertaken, as well as field trips involving vehicles using existing tracks and accessing off-track areas on foot. I understand rock chip and soil sampling are likely to be considered to be non-ground disturbing activities for the purposes of the Territory regulatory regime and so would not require a Mine Management Plan as that would not be ‘substantial disturbance’ under s 35 of the MMA. Ms James notes (at 9) that ‘Soil sampling involves taking a small amount of soil from the ground in a systematic way, such as in a grid pattern over a defined area every 100 to 200 meters’. These various activities are likely to take between a few days up to a few weeks, depending on the activity, and involve between two to four people in one or two vehicles.
In years three and four, drilling is likely depending on the results of the previous year’s exploration program, with up to five drill holes on EL32723/EL323724 and on EL32729/EL32730. It may be that EL323724 has no drilling activity, depending on previous year’s results.
Baudin goes on to outlines (at 29) that:
If the results of years 3 and 4 are positive, further exploratory drilling will be planned for years 5 and 6. That drilling would likely be closer spaced, meaning the overall drilling envelope would not expand.The area directly impacted by any drill hole in years 5 and 6 would be similar to those in years 3 and 4.
Support for these contentions are provided in the affidavit of Ms James who outlines the proposed exploration program and scope. For example, Ms James provides the information which is summarised in the contentions, and provides further detail in her statement, such as (at 16) explaining that a drill hole is approximately 10 centimetres in diameter and the area impacted by a drill hole (including allowance for a vehicle and sump infrastructure) is approximately 25 square metres. Ms James also notes (at 17) that Baudin must have a Mining Management Plan approved by the Territory before it can undertake any ground-disturbing activity, including drilling – this will be based on the Template prepared by the Territory which includes precautions such as capping as well as post exploration activity such as remediation and closure.

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

The Tribunal balances a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Yindjibarndi v FMG at [16]). The test is outlined in Rosas v Northern Territory (at [67]), which outlined that the:
...leading case on the proper interpretation of section 237(a) is Smith v WesternAustralia [2001] FCA 19; (2001) 108 FCR 442. French J made these observations about the proper interpretation of this paragraph (at 451):
"The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section."
Top End contentions (at 15) assert that native title holders live near the proposed licences, frequently visit them, and hunt and gather bush tucker and medicine on the proposed licences ‘from all around the Tenements’. Mr Raymond (at 36, 41 and 45-47), and Mr Dalywaters (at 17-18) provide evidence in support of these assertions, including hunting at Jurriyi and Kulaja (in EL32729 and EL32730) and collecting bush medicine (in EL32724), areas which are outlined more in my consideration of sites below for s 237(b). There is also evidence of hunting across other areas of the native title holder’s country which are not the proposed licences (Mr Raymond at 41, for example). Mr Raymond (at 43) outlines activities which are ‘all over’ the native title holder’s country and not only isolated to features on, or the areas of, EL32729 and EL32730, such that exploration activities would interfere with same to a substantial or direct extent.

Similarly, Mr Dalywaters notes that social and community activities such as hunting and collecting bush tucker are conducted on EL32724. However, those activities do not appear to be restricted to a particular area or areas on that proposed licence such that exploration activities would interfere with same to a substantial or direct extent.
Top End asserts (at 21) that native title holders live at Marlinja which is in close proximity to the proposed licences and stay at Jingaloo which is also nearby. Mapping confirms Marlinja is just to the south of EL32730 and Jingaloo is just to the east of that licence and EL32729. Mr Raymond (at 32) outlines that Marlinja is about eight to ten kilometres from EL32730, and (at 33) that the Jingaloo outstation is about five kilometres from EL32729. This is consistent with mapping, and with information provided by Baudin. Mr Raymond (at 36) and Mr Dalywaters (at 18-20) provide evidence in support of these assertions and their concerns that exploration activities will interfere with their social and community activities.
The Top End reply (at 8) asserts that ‘As the native title holders’ community and social activities take place frequently, the likelihood that the GP’s activities will interfere with them is increased’, citing Wanjina-Wunggurr v Elderberry where the expedited procedure was held not to apply. In that matter, evidence supported that social and community activities were conducted on and around a permanent pool of water on the proposed licence in a relatively intensive manner, and that the grantee party was likely to conduct their exploration activities at a similar time of year as when the native title parties were conducting their activities. The pool on the proposed licence was shown to be the ‘main spot’ (at 13) for various social and community activities. That is not the case in the present matter, and the proposed licences are also much larger than that in Wanjina-Wunggurr v Elderberry, and as such I can infer it is less likely direct or substantial interference to the social and community activities on the proposed licences will occur from exploration activities.
Baudin contentions argue (at 36-37) that their exploration activities will not cause interference as contemplated in s 237(a) because of factors including the short term and periodic nature of the exploration activities and the area of the proposed licences compared with the size of the area in which social and community activities are conducted.
While I appreciate that having Marlinja and Jingaloo relatively close to these proposed licences would increase the likelihood of native title holders accessing the areas and conducting social and community activities, I also note the size of the proposed licences.
I must assess community and social activities in the context of s 237(a) and the interference must be direct and substantial. Given the activities outlined, the size of the proposed licences, and given that exploration activities are unlikely to be conducted over the whole of a licence at any one time, I do not believe exploration activities would lead to substantial and direct interference to the native title holders social and community activities.

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

The legal principles which apply to this inquiry in general, and in relation to s 237(b), are summarised in Yindjibarndiv FMG (at [14], [17(a),(b),(d),(e)]-[18]) and I adopt those for the purposes of this decision.The native title party argue there are a number of sites of particular significance, as outlined below.
Baudin argues (at 15-18) there is evidence of previous exploration activity on the proposed licences, including drilling and seismic lines. However, as I outlined in Nyalpa Pirniku v Anderson (at [16]), it has long been understood that even if an area has been previously subject to exploration or other activity, it does not mean the area has lost its traditional significance or that further disturbance would not constitute interference.
Baudin also states (at 70 and 85, for example) that aspects such as frequency of use of a site, by whom and for what purpose has not been made out. However, as I have noted in previous decisions (for example, Top End v Baudin), this is more relevant to s 237(a) than to s 237(b). For the latter, what I must focus on is whether or not an area or site is of particular significance and if so, whether or not the act is likely to interfere with areas or sites of particular significance, in accordance with the native title holder traditions.

Are there any sites of particular significance?

Top end contentions assert the following are sites of particular significance:
(a)Jurriyi (associated with EL32729)
(b)Tinjalkuji (associated with EL32729)
(c)Kurditkuji (associated with EL32730)
(d)Walira (associated with EL32724)
(e)Kulaja (associated with EL32730)
(f)Jirrarnku (associated with EL32729)
(g)Kinbiniggu site (Peter’s Hole) (associated with EL32724)
The Top End reply (at 25) asserts that Jurriyi, Tinjalkuju, Kurditkuji, Walira, Kulaja, Jirrarnku and a Kinbiniggu site at Peter’s Hole are located within the proposed licences, and that they should be found to be sites of particular significance. (I note that Kinbiniggu is also referred to in materials as Kinbininggu, and I adopt the spellings from the relevant document, accepting they are the same area).
The Top End reply (at 31) also asserts that ‘The NTP contends that the Kunaga and Yipijirrini sites are sites of particular significance contrary to the GP’s contention at [87]’. However, while sites such as Kunaga and Yipijirrini and several other places are referenced in the affidavit evidence, only very brief assertions are made regards these sites. I do not consider they reach the threshold of a site of particular significance. As such, my consideration as outlined in this inquiry decision focuses on the reasons for my decision regards the sites outlined by Top End as listed at [39] above, for which evidence has been led which is more than a mere mention or assertion.
The Top End reply (at 28) asserts that the sites (as at [39] above) should be found to be of particular significance because evidence has been led about:
a. the laws and customs which must be observed when accessing the sites and consequences of not observing these;
b. the teaching they have received in relation to the sites; and
c. the importance of certain sites for a number of dreamings and the mantiwa ceremony and the intergenerational teaching associated with that ceremony
I do not repeat detail about the mantiwa ceremony due to the cultural sensitivities. However, by way of explaining the ceremony and its relevance to this inquiry, I note Mr Raymond’s comment (at 58) that ‘...kujika is used in that mantiwa ceremony. The kujika is an important way to teach the boys, not only about their country but also about other peoples’ countries’. Kujika features heavily in the evidence and regards sites of particular significance, as outlined below.
The Territory adopts (47)–(87) of the Baudin contentions. Territory contentions (at 55) argue the evidence regarding sites is too general to allow a conclusion they are sites of particular significance. They argue the ‘evidence does not specifically identify the locations of the sites nor are sufficient reasons provided as to why those sites are of more than ordinary significance to the Native Title Party’.
I consider each of the sites below at [46]-[64].

Jurriyi, Tinjalkuji and Kurditkuji

Baudin states (at 70 and 74) that information regarding Jurriyi, Tinjalkuji and Kurditkuji is not specific enough. It appears Baudin accept a dreaming does pass through these sites, as asserted by Mr Raymond. However, Baudin have not given weight to the significance of these sites on the basis that Mr Raymond has also stated ceremony related to the dreaming is conducted off the proposed licences (at Beetaloo, for example). Baudin argues that as the ceremony itself is not conducted on the proposed licence areas at those sites, this is not sufficient to establish Jurriyi, Tinjalkuji and Kurditkuji are of particular significance (at 71-73).
Baudin also argues (at 73) that merely because a dreaming passes through a site does not make it of particular significance, citing Andrews v Exploration & Resources Development and Lockyer v Western Australia in support of that argument, where the expedited procedure was held not to apply to the grant of those tenements. I note in those decisions the expedited procedure was held not to apply because of a lack of evidence about the sacredness of the relevant sites, and that there was held to be little to no information about why or if they were sites of particular significance.
As noted in Andrews (at [124]):
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.
In Andrews and Lockyer v Western Australia, assertions were made that there were sites of particular significance, without evidence to back up such assertions. In addition, in Lockyer v Western Australia, a dreaming track was asserted to link sites, but at least two of the sites asserted were found not to be on the relevant tenement.
In the present matter, Mr Raymond, for EL32729 and EL32730, explains that the general country is Waranangku (at 2, 35 and 38 for example), and he provides some information about that country. He does not assert the whole of the Waranangku country is of particular significance, but rather explains there are ‘important places’/‘sacred sites’ on this country (at 50), and there is a gender specific ceremony (Kujika) (at 14) conducted off the area of the proposed licences, which is connected to the dreaming which runs through these important or sacred places (at 55). I do not consider the fact that the ceremony is conducted off the proposed licences to be pivotal to whether or not the sites on the proposed licences are of particular significance. The Top End reply outlines (at 29) that:
Aboriginal ceremony associated with a site need not be conducted at that site. The fact that a ceremony associated with a site may not be conducted at that site does not reduce the significance of the site to that ceremony.
What I need to consider is the evidence about why the sites are of particular significance – for example, whether those sites are a manifestation of specific activities of a mythic dreamtime being, as a specific culturally significant area.
Mr Raymond has described the type of feature each of these sites are, and their location with respect to the proposed licences: Jurriyi (at 52), Tinjalkuji (at 25 and 53) and Kurditkuji (at 26 and 54). He also explains why these areas are of particular significance.
I consider there is a specified and named dreaming track, which runs through sites on these proposed licences, associated with Kujika, which makes those sites of particular significance to the native title parties. Mr Dalywaters, in relation to EL32724, outlines evidence which is consistent with what Mr Raymond says about the Kujika and the dreaming – for example, at 23, 25-26, regarding Kinbiniggu and Walira, which I consider below. The consistency of the evidence is also a factor in my conclusion about the particular significance of sites in this inquiry.
My reading of the evidence is that the sites run in a north south orientation, through EL32729 and EL32730, that they are distinguished from the surrounding Waranangku country generally because the dreaming passes through the sites, the dreaming is important to the ceremony, and the dreaming ends at Beetaloo. I do not believe the ceremony needs to occur at the sites to accord them the status of being of particular significance under s 237(b) of the Act.

Walira

Baudin (at 75) accept it is likely this site is Frew Pond on EL32724. They state ‘This appears to correspond to a recorded sacred site and associated restricted work area on the Abstract of Records provided the Government Party by the AAPA’ (as provided by the Territory). Baudin states it ‘has previously acknowledged its obligations in regard to such sites’. Baudin appear to accept the same dreaming passes through this site, however, reiterates the argument that as ceremony does not occur on the site, then there is not sufficient evidence to establish this site is of particular significance (at 76-77).
Mr Raymond explains Walira is an important waterhole (at 57-58). I note that Mr Raymond outlines the dreaming travels from Walira, and names places as it goes, including Jurriyi, Tinjalkuji and Kurditkuji (at 56). Accordingly, these places accrue a significance which is not associated with other places in and around the proposed licence. He explains the importance of sites such as Walira (similar to Jurriyi, Tinjalkuji and Kurditkuji) that they are involved with the Kujika – the song story is significant for the Mantiwa ceremony for young men.
I consider Walira is a site of particular significance to the native title party for similar reasons to my conclusion for Jurriyi, Tinjalkuji and Kurditkuji, as it also forms part of that dreaming pathway.

Kulaja

Baudin argue (at 78-80) there is insufficient information regarding this site for me to conclude it is of particular significance. I concur with that. This site is described briefly by Mr Raymond (at 28, 67-68 for example) and is associated with a different dreaming to that which comes from Walira and which travels through Jurriyi, Tinjalkuji and Kurditkuji (and Kinbiniggu which I consider below).
It is asserted it is ‘very important’ (at 66), however, there is little further information provided about native title party traditions associated with the site, or its location, and I could not conclude there is sufficient for it to be held to be a site of particular significance.

Jirrarnku

Baudin (at 78-80) accept it is likely this site is on EL32729, and that it is on or near a RWA recorded on the Abstract of Records by the AAPA as provided in the Territory materials. They argue being associated with an unnamed dreaming is insufficient information for the purposes of s 237(b).
Similarly to Kulaja, this site is described briefly by Mr Raymond (at 20, 62-64 for example) and my understanding from the limited information provided is that it is associated with a different dreaming to that which comes from Walira and which travels through Jurriyi, Tinjalkuji and Kurditkuji (and Kinbiniggu which I consider below). It is likely that given information about the site is ‘highly restricted’ according to Mr Raymond, this may have contributed to the sparse context provided. I could not conclude this is a site of particular significance.

Kinbiniggu site (Peter’s Hole)

The Top End reply (at 30) outlines that Mr Dalywaters’ evidence (at 22 and 28) shows Kinbiningu is ‘both the name for areas of country and the site at Peter’s Hole’. Mr Dalywaters (at 22-23, 27-30) explains the geographical feature of the site at Peter’s Hole, and where it is located. This place is also associated with the Kujila and he has been told about artefacts (such as axes and spear heads) which have been found there. Mr Dalywaters (at 27) says he goes to check on this site (as well as Walira) around 6 or 7 times a year. He also explains that for this site (as well as Walira) only the ‘right people’ can go there (at 29).
Baudin argues (at 83-86) that Kinbiningu is a broad area of country, which I accept, given Mr Dalywaters comments (at 8) that ‘I also look after my abiji country... This is Kinbininggu country, which covers all that area west of Dunmarra to Peter’s Hole down to Frew Pond’. I understand from other comments in Mr Dalywaters affidavit (for example, at 22) that this area at Peter’s Hole is a Kinbininggu site. While I also understand the whole of the Kinbiningu country is important to Mr Dalywater’s personally, I do not find he is asserting the whole of that country to be of particular significance in accordance with his native title party traditions – I accept that certain sites and areas within Kinbiningu country are of particular significance, including the area at Peter’s Hole.
Baudin states that the area around Peter’s Hole is likely to correspond to a recorded sacred site and associated RWA on the Abstract of Records provided by the Territory.
I am satisfied that the area at Peter’s Hole is a site of particular significance to the native title party for similar reasons to my conclusion for Jurriyi, Tinjalkuji and Kurditkuji, as it is associated with the Kujila and sufficient information has been provided about its form and location and significance to the native title holders.

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

The Top End reply (at 33-35) says that the Territory argument (at 68(g)) should be rejected as ‘they distract from the proper inquiry under s 237(b), misunderstand the relevance of Mr Raymond’s and Mr Dalywaters’ evidence and seek to place an unfounded evidentiary burden on the NTP’. Top End assert that (emphasis in original):
...statements of the kind made by Mr Raymond and Mr Dalywaters in relation to the way that the native title holders’ sites of particular significance may be interfered with and the impacts of interference to their sites of particular significance reflect well established evidence described in ethnographic materials that speak to the aboriginal system of consequence in respect of site desecration, and the essentially spiritual connection with country.
The statements made by Mr Raymond and Mr Dalywaters describe the traditional laws and customs of the native title holders, and their beliefs in relation to the consequences of interference with sites of particular significance in accordance with those traditional laws and customs. Mr Raymond’s and Mr Dalywaters’ evidence is directly relevant to, and sufficient to establish the elements of s237(b). Contrary to the Government Party’s contentions, the NTP is not required to provide additional specific evidence in support of those beliefs.
Top End contentions (at 41) outline that ‘visiting these sacred sites without the permission of the native title holders would cause harm, including sickness, to the person visiting or the native title holders in accordance with their traditional laws and customs’. This is consistent with the evidence provided by Mr Raymond (for example, at 74, 77-78) and Mr Dalywaters (at 28-31). I now assess the arguments in relation to interference with those sites which I have concluded are of particular significance in accordance with s 237(b), namely:
(a)Jurriyi (associated with EL32729)
(b)Tinjalkuji (associated with EL32729)
(c)Kurditkuji (associated with EL32730)
(d)Walira (associated with EL32724)
(e)Kinbiniggu site (Peter’s Hole) (associated with EL32724)
In terms of interference, I assume parties will act within the Northern Territory regulatory regime – the question I need to address is whether, acting within this regime, there is likely to be interference with any of the sites of particular significance.
Top End contentions (at 43) outline that:
Given the nature of the sites of particular significance identified..., in the absence of consultation and cooperation with native title holders, the Grant is highly likely to result in interference with those sites under traditional law and custom. This remains the case, despite the fact that the Tribunal may accept that the GP understands its obligations under the relevant statutory regime. Consultation with the native title holders, permission to enter country and observance of ceremonial ritual is required to avoid interference with sites of particular significance.

The Territory contentions (for example, at page 5, and paragraphs 11, 45, 33, 73, 74 and 78) outline arguments in respect of interference being unlikely, which may be summarised as:
·the protections afforded by the Territory’s regulatory regime
·the rights conferred on Baudin by the grants, and that Baudin could conduct such activities ‘so as to avoid interference with sites or areas of ‘particular significance’’
·‘the extensive standard conditions that apply’ to exploration licences regarding an explorer’s interactions with native title holders and minimising effects on native title interests and sites, including: condition 5 of Schedule 1, and condition’s 1, 6(a), 6(c), 7, 8, and 25 of Schedule 2 – I note the Baudin contentions (at 39-43, for example) also assert that the Territory conditions provide protections for sites of particular significance
·‘the presumption of regularity’, which assumes ‘the Government Party will exercise its powers and make decisions properly and in accordance with the law, and that a Grantee Party will not act contrary to the law and the regulatory regime, including conditions imposed, which govern the exercise of the rights under the grant’
·‘any concerns held by the Native Title Party that sites are unmarked and workers may go through them without knowing can be addressed through consultations with the Grantee Party’ by virtue of the conditions to be imposed.
The Territory emphasise (at 43) the rigour of their regime, noting the comments in Silver v Northern Territory at [156]:
...the Northern Territory has in place a well advanced, integrated and pro-active legal regime for mining exploration, that pays significant regard to the native title rights and interests of traditional owners and which, to a very large degree, has succeeded in dovetailing native title considerations into the fabric of the decision making process
However, as I noted in Top End v Baudin, it is worth noting that Silver v Northern Territory went on to say (at [157]):
It is of importance that section 24(e) [of the Mining Act, now repealed and replaced by the Mineral Titles Act which has similar provisions] provides that all exploration licences are subject to the statutory condition that no program of substantial disturbance will be permitted without the approval of the Secretary...
Obviously the fact that the Secretary can allow substantial disturbance to occur is of itself an issue. The government party has provided extensive material on how this process is managed, and emphasises the importance placed on rehabilitation. As previously noted, rehabilitation is a matter that can properly be taken into account, but it is not always an answer to the issue of major disturbance. Some disturbance may be so major that no matter what rehabilitation is proposed the land or waters may never recover or be made good again...
The question is whether, even when acting within the regulatory regime, the activities of an explorer are likely to cause interference with sites of particular significance of the relevant native title party. The assessment of interference is done in the context of the relevant native title party traditions, as expressed in the inquiry.
McKerracher J considered these issues in an appeal from a Tribunal decision of mine, in FMG Pilbara v Yindjibarndi. For example (at [39]-[40]), the Judge outlined:
It must be emphasised that the task of the Tribunal in such an application is to make a predictive analysis. In this instance it was to take into account its apparent reliance upon the evidence given for [the grantee party] as to the precautions it would take and balance those against the nature and importance of the particular site in terms of the evidence given. That is clearly the approach it has taken and, in my view, it is the correct approach.
There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise. The task for the Tribunal is to make the predictive analysis as to whether the interference is likely to arise and to make a finding in relation to interference.
It is worth noting in full, as I did in Top End v Baudin, McKerracher’s further comments in that decision (at [71]-[76]):
The State complains that the Tribunal did not explicitly consider, and made no findings about, the nature of the likely impact or effect of [the grantee in that matter] proposed activities on any of the areas or sites, including whether and how the significance of any of the sites would be diminished by the proposed activities. According to the State, no examples were drawn upon by the Tribunal to illustrate how the sites might be affected in even the smallest way. The State complains that the Tribunal failed to carry out a fact based risk assessment as required by the Full Court in Little [Little v Oriole Resources Pty Ltd (2005) 146 FCR 576], and failed to consider relevant factors mandated by the word ‘interfere’.
Further, or alternatively, the State contends that the Tribunal considered that trivial impacts, or impacts which did not affect the significance of areas or site, were sufficient to engage s 237(b) NTA.
In the event that it is found that the Tribunal did carry out a predictive assessment, the State then argues that the Tribunal failed to apply the correct standard of probability, namely, a ‘real chance or risk’ of interference. It merely found that ‘inadvertent interference may occur’.
Dealing with the latter point briefly, taking the conclusion reached by the Tribunal entirely in context, it appears to me that it has applied the correct standard and, more particularly, that the sense in which it used the words ‘may occur’ was entirely consistent with there being a ‘real chance or risk’ in its assessment.
Dealing with the more substantive point, in my view, the nature of interference referred to under s 237(a) NTA is not the same as the nature of interference referred to under s 237(b) NTA. The risks addressed in the two subsections are quite different. The range of community and social activities referred to in s 237(a) NTA is very broad, whereas s 237(b) NTA is directed only at areas or sites of ‘particular significance’. It follows that interference that may be trivial in the context of a social activity may be substantial in the context of a site of ‘particular significance’. That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions. This, as suggested in Parker, may require an evaluation of the extent of particular significance of the site.
As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
The Territory argues (at 44) the Sacred Sites Act protects sites that are ‘sacred to Aboriginals or is otherwise significant according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition’ (referring to the Sacred Sites Act s 3 and Land Rights Act s 3). They outline (for example, at 45, 53 and 63) that the protections include the below prohibitions, and outline the penalties that apply if those protections are contravened, in summary:
·Prohibition on entry: s 33 of the Sacred Sites Act provides that a person (including bodies corporate) shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the Act or the Land Rights Act
·Prohibition on works: s 34 of the Sacred Sites Act provides that a person shall not carry out work on or use a sacred site
·Prohibition on desecration: s 35 of the Sacred Sites Act provides that a person shall not desecrate a sacred site
·Contravention of authority or Minister’s certificate: s 37 of the Sacred Sites Act provides that a person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister’s certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence.
·Contravention of s 69(1) of the Land Rights Act makes it an offence for a person to enter or to remain on a sacred site.
·The HeritageAct includes protection of Aboriginal archaeological places, objects and relics by making it an offence to damage such a place or object and removing part of a heritage place or object.
The Territory outlines the ways in which the provisions of the Sacred Sites Act and Land Rights Act, and the obligations under those provisions, are brought to the attention of a grantee party, including the conditions to be applied to a grant. The Territory also explains the mechanism of an Authority Certificate under the Sacred Sites Act, where the application for a certificate is received by the Aboriginal Areas Protection Authority (the Authority/AAPA) who ‘must consult with custodians of sacred sites on or in the vicinity of the land to which the application relates’ (emphasis in original, at 47). The Authority Certificate can only be issued ‘if the work or use of the land could proceed or be made without there being a ‘substantive’ risk of damage to or interference with a sacred site on or in the vicinity of the land or an agreement has been reached between the custodians and the applicant’ (at 47).
The Territory argues (at 47) that ‘the test applied by the AAPA before issuing an authority certificate, namely that there is not a substantive risk of interference or damage, is similar to that posed by s 237(b) of the NTA’ (emphasis in original). The Territory explains that ‘Not only does the site protection regime identify and protect sites, it adds additional protection through exclusion zones where appropriate (regardless of whether the site is registered or recorded)’ (at 48).
The Territory (at 49) challenges Top End’s statement about their regulatory regime (at 49-50 of Top End’s contentions), explaining that:
...the process undertaken by the AAPA includes consulting with custodians to ensure accurate records of the locations of sites when reported. The Proposed Tenement areas have been covered by previous authority certificates as recently as 2021 which would have involved such consultations.
The Territory (at 51) states the Authority consultations have been conducted ‘presumably’ with native title holders over the past 30 years, and it is open to them apply under s 27 of the Sacred Sites Act to the APAA to have a site registered.
The Top End reply (at 21-23) argues that while the second schedule conditions have a consultation requirement:
...consultation is not sufficient to prevent interference with...sites of particular significance to, the native title holders because there is no requirement to act upon the native title holders’ concerns about conducting exploration works as raised at such a meeting....consultation need only occur if [exploration] activities proposed are not reconnaissance, a matter which is left to the discretion of the title holder and for which no guidance is provided in the conditions.
The Top End reply (at 39) also argues that:
It is not clear on what basis the Government Party says the protection offered by the Sacred Sites Act and Land Rights Act would extend to the Jurriyi, Tinjalkuju, Kurditkuji, Walira, Kulaja, Jirrarnku and Kinbiniggu sites given that:
a. the sites are not registered so that the precise boundaries are known only to native title holders;
b. there is no requirement on the GP to obtain an authority certificate, and there is no evidence the GP intends to do so;
c. the Government Party and GP do not accept that Jurriyi, Tinjalkuju, Kurditkuji, Walira, Kulaja, Jirrarnku and Kinbiniggu are sites of particular significance for the purposes of the NTA, or sacred for the purposes of the Sacred Sites Act.
The Territory contentions (at 46) outline that the effect of the regulatory regime, together with conditions on exploration licences, is to put Baudin on notice of their obligations under the Sacred Sites Act and Land Rights Act, such that no defence would be available to Baudin in the event of interference. However, I must consider whether interference itself is likely, rather than what defences are available should interference occur. Given McKerracher J’s comments in FMG Pilbara v Yindjibarndi, I must consider carefully the likely activities of a grantee party, together with the regulatory regime, and the nature of the sites of particular significance.
Baudin (at 21-28) has indicated its activities will include initial rock chip and soil sampling, geophysical sampling (by air or on ground), as well as field trips involving vehicles using existing tracks and accessing off-track areas on foot. I understand rock chip and soil sampling are likely to be considered to be non-ground disturbing activities for the purposes of the Territory regulatory regime and so would not require a Mine Management Plan as that would not be ‘substantial disturbance’ under s 35 of the MMA.
Substantial disturbance under s 35 of the MMA includes activities such as:
·land clearing
·earthworks such as cutting, filling, excavating, or trenching
·above-ground works such as building access tracks and roads, buildings, bridges, railways, pipelines, telephone and power lines, conveyors and airstrips
·underground works such as digging tunnels and wells or laying pipelines, conduits and cables
·water works such as building dams, impoundments, canals, drainage works, or the alteration of river or creek banks, water courses and shore lines
·extraction of resources from the surface of the land, underground, riverbeds or undersea mining and quarrying
·stockpiling of materials such as ore, overburden, waste materials and by-products
·exploration works involving seismic lines, drill pads, drill holes - including vacuum, auger and RAB [rotary air blasting], grids, tracks, costeans and camp establishment
·active remote sensing and seismic techniques in water
·drilling and blasting
·any activity that is likely to have a significant impact on plants or animals.
I assume vehicles will use existing tracks, but that the crew would be at least walking off those tracks, so they can cover the grid pattern for the proposed soil sampling. It is not entirely clear if activity such as soil sampling falls into the category of ‘substantial disturbance’ - the soil sampling may, but travelling on the surface of the land by foot in order to conduct that soil sampling would not fall into the category of ‘substantial disturbance’.
Looking at the regulatory conditions, I note that much of the focus is on minimising harm or interference. Condition 5 of Schedule 1 focuses on the responsibilities of compliance and consequences of interference. There are a number of conditions which outline a grantee party to ‘have regard’ to their representations made during consultations with a native title party and requirements to consult (for example, Conditions 6(a)-(c) of Schedule 2), but nothing in relation to the outcome of such.
Other conditions referred to in the Baudin and Territory materials, such as Condition 25 of Schedule 2, go to issues after interference, such as rectification or rehabilitation. And Condition 7 and 8 respectively, of the same Schedule, focus on personnel and contractor education and the requirement ‘Prior to carrying out any work in the licence area the title holder [grantee party] must consult with the Aboriginal Areas Protection Authority and inspect the Register of Sacred Sites. A title holder wishing to carry out work may apply for an Authority Certificate’.
The consideration of interference in this inquiry comes down to the traditions of the native title parties, as expressed in relation to the sites of particular significance. I accept the dreaming which connects the sites of Jurriyi, Tinjalkuji, Kurditkuji, Walira and the Kinbiniggu site (Peter’s Hole) is one which can be disturbed by approaching the areas in a way which is contrary to the native title party traditions. The dreaming which connects these sites and areas is consistently described by Mr Raymond and Mr Dalywaters, as is the custom and tradition associated with the dreaming, which has elevated significance because of its association with the kujika which is used in the mantiwa ceremony. Strangers approaching without accompaniment, talking in language, and with the right people, would constitute interference in accordance with the native title party traditions for these sites of particular significance – for example, Mr Dalywaters (at 30-31) summarises the situation by saying:
If someone went to one of these sacred places without permission they will come back and get sick. You could get in trouble, get cursed. I’ve seen it happen...
If Walira or Kinbininggu places were damaged we would get very sick ourselves. It would
ruin the place. It would just ruin everything, might as well say goodbye to the land and animal and bush medicine, that wouldn’t be used in that area anymore.
Even taking account of the Territory’s regulatory regime, Baudin would, at a minimum, be able to approach and remain on the sites which I have concluded are of particular significance. I am satisfied that given what has been outlined in the evidence, such would be interference in the context of the native title party traditions for those areas.

Determination

I find the grant of exploration licence EL32724 to Baudin Resources Pty Ltd is not an act which attracts the expedited procedure.
I find the grant of exploration licence EL32729 to Baudin Resources Pty Ltd is not an act which attracts the expedited procedure.
I find the grant of exploration licence EL32730 to Baudin Resources Pty Ltd is not an act which attracts the expedited procedure.

Ms Helen Shurven
Member
28 September 2022