Top End (Default PBC/CLA) Aboriginal Corporation v Gempart (NT) Pty Ltd
[2022] NNTTA 64
•24 October 2022
NATIONAL NATIVE TITLE TRIBUNAL
Top End (Default PBC/CLA) Aboriginal Corporation v Gempart (NT) Pty Ltd [2022] NNTTA 64 (24 October 2022)
Application No: | DO2022/0008 |
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 (DCD2013/019, DCD2013/020)
(native title party)
- and -
Gempart (NT) 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: | 24 October 2022 |
Catchwords: | Native Title — Expedited procedure — Northern Territory — exploration licence — s 237(b) of the Native Title Act 1993 (Cth) — operation of the Northern Territory regulatory regime — Reliance on a previous decision of the Tribunal —determination that the act is not an act attracting the expedited procedure |
Legislation: | Heritage Act 2011 (NT) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3, 69 Native Title Act 1993 (Cth) ss 29, 32, 237 Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 3, 33, 34, 35, 37 |
Cases: | Fulton v Northern Territory of Australia [2013] FCA 1088 (Fulton v Northern Territory) Limmen and Others on behalf of the Alawa, Marra and Nganji People/Astro Mining NL/Northern Territory [2002] NNTTA 196 (Limmen v Northern Territory) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others[2021] NNTTA 59 (Nyalpa Pirniku v Anderson) Tonson v Northern Territory of Australia [2013] FCA 1087 (Tonson v Northern Territory) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Baudin Resources Pty Ltd & Another[2022] NNTTA 51 (Top End v Baudin) Top End (Default PBC/CLA) Aboriginal Corporation v Baudin Resources Pty Ltd & Another [2022] NNTTA 61 (Top End v Baudin #2) Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (Wanjina-Wunggurr v Braeburn Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Elena Zola, Northern Land Council |
| Representative of the grantee party: | Bradly Torgan, Ward Keller |
| Representatives of the Government party: | Stewart Bryson and Ruby Rayner, Department of Primary Industry & Resources |
REASONS FOR DETERMINATION
The Government of the Northern Territory (the Territory) proposes to grant exploration licence EL32888 to Gempart Ltd (NT) Pty Ltd (Gempart/grantee party). The Territory gave public notice of this proposal, as required by s 29 of the Native Title Act (Cth) (the Act). Included in each notice is a statement that the Territory considers the proposed grants attract the expedited procedure, which is described as follows in s 237 of the Act:
A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
An objection was made to the National Native Title Tribunal by The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (Top End) against the application of the expedited procedure to the grant of the proposed licence. Top End was appointed as the prescribed body corporate for the native title parties who have rights and interests in that area of land. Information about the native title parties, including the rights and interests they hold, is outlined in the Federal Court decisions of Fulton v Northern Territory and Tonson v Northern Territory.
The objection was initially made on the basis of all limbs of s 237. During the inquiry, the native title party confirmed they did not pursue s 237(a) or s 237(c). On a common sense reading, I could find nothing in the available information that would offend those limbs of s 237. As such, the remainder of this determination focusses on s 237(b). I have been appointed by the President of the Tribunal to determine whether the proposed grant attracts the expedited procedure (see s 32 of the Act).
Exploration licence EL32888 is nearly 800 square kilometres in size, with non-exclusive native title rights and interests held by Top End, as described in Fulton v Northern Territory and Tonson v Northern Territory.
The Northern Territory Regulatory Regime
I adopt my comments and reasoning from Top End v Baudin in relation to the Territory regulatory regime (at [6]-[9], [11]-[15] and [17]-[18]).
Party Materials
Top End provided contentions and mapping, with the statements of Donald Hume, Peter Lansen and Alan Watson in support, as well as a reply to the Territory and Gempart materials. Mr Hume, Mr Lansen and Mr Watson are senior mingirringgi (traditional owners and spokespersons) who speak for areas of the proposed licence. A non-contentious request was made for certain parts of Mr Lansen’s evidence to be covered by non-disclosure orders due to cultural sensitivities. Those orders were made, and as such, I do not disclose that information, apart from to ensure my reasoning and decision is clear.
Gempart provided contentions supported by mapping and the affidavit of the Director of Gempart, Alistair Mackie. Gempart also provided the exploration rationale and work programmes for the proposed licence. Mr Mackie notes Gempart intends to explore for potential areas of various mineralisation, and outlines that proposed activities are likely to include:
· An airborne survey over the south eastern one third of the proposed licence in year one.
· Year one activity will be followed up in prospective areas by ‘on the ground mapping, geophysical surveying and rock chips sampling’ – previous areas of sediment and rock chip sampling are noted on mapping.
o The geophysical surveying involves two four wheel drive vehicles, one towing a trailer and generator, and laying out a few hundred metres of wire on ground to assist indicate mineralisation, and would take three people approximately one month. This ‘geophysical surveying will only occur in selected small area, called prospects, within the area covered by the airborne survey’ (at 9).
o The rock chip sampling would take two to three people two to three weeks using one to two vehicles.
· Activity in year three onward will be dependent on what is found in the first two years. Mr Mackie explains ‘A likely scenario would result in the drilling of ten drill holes across the combined area of EL32888 and EL32889 using a truck-mounted reverse circulation tRC) drill rig’ (at 11).
· The footprint of activity is likely to be within the airborne survey area.
The Territory materials for the proposed licence include:
· Topographical and tenure maps
· Abstract of Records from the Aboriginal Areas Protection Authority (the Authority/AAPA) (Abstract)
· Heritage database extracts
· Gempart exploration licence application documents to the Territory
· Conditions applicable to the grant of an exploration licence
· Information about current and historic overlapping titles for the relevant area
Is there likely to be interference with any areas or sites of particular significance, in accordance with the traditions of a native title party - Section 237(b)?
The legal principles which apply to an expedited procedure objection inquiry in general, and in relation to s 237(b), are summarised in Yindjibarndiv FMG (at [14], [17(a),(b),(d),(e)]-[18]) and I adopt those for the purposes of this inquiry and decision.
The Territory and Gempart argue that the Tribunal reasoning from a previous inquiry, Limmen v Northern Territory, should apply, where it was held the expedited procedure applied. I note the tenement which was considered in that matter (EL22296) does overlap the proposed licence in the current inquiry (according to Historic Titles mapping provided by the Territory in their Preliminary Bundle of documents). EL22296 overlapped almost the entirety of the proposed licence, extended further south and was nearly twice the size of the proposed licence. While I do not adopt the outcome from Limmen v Northern Territory (for the reasons outlined below), I have considered the evidence outlined in that decision.
In Limmen v Northern Territory, the decision that the expedited procedure did not apply was based partly on the lack of evidence about what constituted interference with the sites of particular significance in accordance with the native title party traditions (at [38]). The decision was also partly based on the ‘the failure of the native title party to demonstrate the existence of a substantial number of sites of particular significance within the boundaries of the proposed tenement’ (at [39]).
Jurisprudence suggests, however, that it is not the number or density of sites of particular significance on a tenement which should guide a decision maker in these expedited procedure application inquiries, but whether or not such do exist and if so, then whether they are likely to suffer from interference, in accordance with native title party traditions. In Limmen v Northern Territory there was little such detail about interference, whereas in the present inquiry, there is much detail.
Gempart contentions (at 11-14), and Mr Mackie (at 7) argue there has been prior activity and exploration on the area of the proposed licence. As I outlined in Nyalpa Pirniku v Anderson (at [16]), 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.
Are there any sites of particular significance?
Top End assert there are sites or areas of particular significance within the proposed licence, including:
· Ngubayin
· Baluganda
· Beauty Plain
Top End also assert there are sites or areas of particular significance and in close proximity to the proposed licence, including:
· Muynmin sites
· Old Tanumbirini homestead.
Ngubayin
Mr Watson speaks for Ngubayin. He explains the geography of the site and that it is associated with two dreamings, one of which is the most important dreaming for the Mambali Ngubayin estate group (at 13-14, 16-17, 23). The site is also the focal point for the most important dreaming, which is associated with ceremony practiced today and which is handed down through generations according to the native title custom and tradition (at 19-20, 22). Mr Watson locates the site (at 14) ‘on Tanumbirini pastoral lease, in the area the explorers want to look’.
Mr Watson states (at 25) he has flown over the site for the AAPA and registered its location using a GPS [global positioning system].In relation to the most important songline, Mr Watson explains (at 15) that the songline is ‘a big thing for our culture. It has to be remembered every time. We have to look after it’.
In Limmen v Northern Territory, the native title party asserted that a site Ngubaiyin existed which is ‘northwest from Muymin’. The evidence regarding the dreaming associated with that site is consistent with that provided for the present inquiry. I take the place Ngubaiyin to be the same place as Ngubayin. I note a place called Munmin Waterhole exists on the border of the proposed licence (slightly to the east of the Old Tanumbirini homestead). Given the information provided about Muymin (as outlined below), I am confident in assuming it is the same place as the Munmin Waterhole. A place northwest of the Munmin Waterhole is directly within the proposed licence, and appears to be within the south east portion of the proposed licence where Gempart are likely to explore (see [7] above). As acknowledged in Gempart contentions (at 61), in Limmen v Northern Territory (at [35]), the Tribunal was satisfied Ngubaiyin was of particular significance. In Limmen v Northern Territory, the expedited procedure was held not to apply on the basis of the application of the Territory’s legislative regime in the absence of information about interference with the site in accordance with the native title party traditions.
In the present inquiry, the Territory (at 28(a)) and Gempart (at 55-57, for example) argue that this site has not been described in sufficient detail. However, taking into account the evidence provided in this inquiry, together with the evidence in Limmen v Northern Territory, and the consistency of that evidence, I am satisfied the site of Ngubayin is within the proposed licence and that it is a site or area of particular significance.
I consider interference with Ngubayin later in this decision.
Baluganda
Mr Lansen speaks for Baluganda. He explains (at 4, 14-17) that site, and ceremony ground is linked to a dreaming track and a ceremony performed at the site, which is the focal point for the Murrungun Baluganda estate group. The ceremony is explained in detail (at 18-27) and I do not repeat the information here due to the cultural sensitivities, save to say it is gender restricted.
Mr Lansen (at 4) asserts that the ‘dreaming track travels through the proposed tenement area and has sites within the proposed tenement area. As boss for that dreaming, I have to look after those sites with the support from my djunggayi’. Mr Lansen outlines (at 24) there are rules around what can be touched at the site and how the site can be interacted with.
Top End (at 7 and 12) assert the lack of detail provided in relation to the location of this site in this inquiry is due to a number of factors, and it is worthwhile quoting this in full:
In response to the GP and Government’s repeated contention that more evidence needs to be adduced by the NTP which locates the sites with sufficient certainty, the NTP submits that in order to locate sites with great particularity, on-country surveying with senior native title holders is required. The expedited procedure objection process does not grant sufficient time to the NTP to attend on-country with native title holders in order to obtain detailed location evidence. We ask that the Tribunal keeps in mind that most Aboriginal witnesses who live in remote communities in the Northern Territory like Mr Lansen, Mr Hume and Mr Watson, did not grow up speaking English as a first language and that many Aboriginal people find it alien to describe a sacred place by its proximity to European-named topographic features or Crown-enforced boundaries (i.e. pastoral leases). The physical and natural features of an area that are of significance to native title holders are often interrelated with dreaming stories, songlines and traditional hunting and gathering practices, which are not recorded by European surveyors. Equally, the European-named features recorded in geospatial data for this region are often not of significance to native title holders, or are of significance but are referred to by different names.
The Territory argue (at 28(b)) that in relation to this area, there is insufficient information for me to conclude it is of particular significance.
The Tribunal unpacked this dilemma somewhat in the decision of Wanjina-Wunggurr v Braeburn Resources (at [38]-[46]). In essence, there must be more than a mere assertion that a site or area is in a certain location – what that additional information or evidence is will depend on the factual matrix of the inquiry. For the purposes of this inquiry, I could not conclude Baluganda is a site of particular significance for the purposes of s 237(b). As such, I do not consider interference with that site.
Beauty Plain
Mr Hume speaks for Beauty Plain. He explains the features of the site (at 19-20) and how it is linked to a dreaming which is important to the Guyal Muynmin estate group. He explains Beauty Plain is especially important because it is the resting place and the creation place for the creator of the dreaming. Mr Hume was taught about this place, and is in turn teaching the younger generation about this place. He locates the area in the context of the Old Tanumbirini Homestead, which is on the southern boundary of the proposed licence (at 19-20). I note the Old Tanumbirini Homestead location corresponds approximately to an Aboriginal Archaeological site on mapping provided by the Territory (at Tab 1(a)(b) for example).
The Territory (at 28(c)) is satisfied Beauty Plain is within the proposed licence. I note that in Limmen v Northern Territory, evidence references Beauty Plain, and places it in the context of the same dreaming as Mr Hume outlines. In Limmen v Northern Territory, Beauty Plain is stated to be near a named creek and a named hill, which are both on the portion of that tenement which overlaps the proposed licence, according to party mapping in this inquiry. This is consistent with Mr Hume’s evidence.
Given the information which has been provided in this inquiry and in Limmen v Northern Territory, I conclude Beauty Plain is a site of particular significance for the purposes of s 237(b).
I consider interference with Beauty Plain later in this decision.
Muynmin sites
Mr Hume speaks for these sites, explaining their features, and that they are an important place for the Guyal Muynmin estate group (at 11-18). Top End contentions (at 32) appreciate they may be just outside the proposed licence, but also assert it is difficult to be sure of their location and their reply (at 3) outlines (at 5 and 21) that parts of these sites may well sit within the proposed licence. Mr Hume locates the sites with respect to Beetaloo and coming through the Old Tanumbirini Homestead (at 25-30). The Muynmin sites are associated with a dangerous dreaming (Mr Hume at 26 and 28).
This evidence is consistent with that outlined by the native title party in Limmen v Northern Territory. The Territory is not convinced the Muynmin sites are located within the proposed licence (at 27) or that they are of particular significance. I do accept the Muynmin sites are an area of particular significance given their description and information provided. However, I note that the tenement in Limmen v Northern Territory was larger than that in this inquiry – given the uncertainty about whether or not this area is on the proposed licence, I could not conclude these sites would be likely to likely suffer from interference from exploration by Gempart on the grant of EL32888.
Old Tanumbirini Homestead
Mr Hume outlines the Old Tanumbirini Homestead is important as there is a cemetery there where many old people are buried (at 34). While I accept a cemetery is an important place, I do not accept it falls into the category of being a site or area of particular significance in accordance with native title party traditions, for the purposes of the evidence provided in this inquiry for s 237(b) of the Act.
Even were I to accept the cemetery was a site of particular significance, given it is likely to be marked out as a cemetery from the description which has been provided, it is unlikely to suffer from interference from exploration activities.
Is there likely to be interference with the sites of Ngubayin or Beauty Plain?
In terms of interference, I assume and accept Gempart will act within the Northern Territory regulatory regime – the question I also need to address is whether, acting within this regime, there is likely to be interference with Ngubayin or Beauty Plain, which I have concluded are sites of particular significance. I consider the evidence of parties in the context of the two sites of particular significance.
The Territory contentions on interference (at 42-58) assert that interference is unlikely, arguing that the regulatory regime will provide sufficient protection, including the standard and other conditions placed on the grant of such a licence. Gempart note (at 62), the Tribunal’s comment in Limmen v Northern Territory (at [38]) that the relevant legislative regime ‘significantly reduce the likelihood of interference with sites of particular significance’ – however, that was based on the limited evidence about interference and the native title party traditions provided in that previous inquiry.
The assessment of interference is done in the context of the relevant native title party traditions, as expressed in the inquiry. I adopt the comments and reasoning from Top End v Baudin (at [56]-[57]) in respect of interference. The Territory argues (at 45) the Sacred Sites Act and other legislative instruments in the Northern Territory protects sites that are ‘sacred to Aboriginals or is otherwise significant according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition’ (referring to the Sacred Sites Act s 3 and Land Rights Act s 3). They outline (at 46 and 52, for example) 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 (at 40 for example) 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 (at 46 and 48) the mechanism of an Authority Certificate under the Sacred Sites Act, where the application for a certificate is received by the Aboriginal Areas Protection Authority (the Authority) who ‘must consult with custodians of sacred sites on or in the vicinity of the land to which the application relates’ (emphasis in original). The Authority Certificate can only be issued ‘if the work or use of the land could proceed or be made without there being a ‘substantive’ risk of damage to or interference with a sacred site on or in the vicinity of the land or an agreement has been reached between the custodians and the applicant’.
The Territory also argues (at 48) that ‘the test applied by the AAPA before issuing an authority certificate, namely that there is not a substantive risk of interference or damage, is similar to that posed by s 237(b) of the NTA’ (emphasis in original). The Territory explains (at 49) that ‘Not only does the site protection regime identify and protect sites, it adds additional protection through exclusion zones where appropriate’.
The Territory further explains (at 50) that:
The process undertaken by the AAPA includes consulting with custodians to ensure accurate records of the locations of sites when reported. The majority of the Proposed Tenement areas have been covered by numerous previous authority certificates which would have involved such consultations.
Gempart argue (at 37, 44, 47 and 58) that consultation and the Territory regulatory regime in that respect will mitigate against interference.
The Territory contentions (at 47) outline that the effect of the regulatory regime, together with the conditions on an exploration licence, puts Gempart on notice of their obligations under the Sacred Sites Act and Land Rights Act, such that no defence would be available to the grantee in the event of interference. However, I must consider whether interference itself is likely, rather than what defences are available should interference occur. Given McKerracher J’s comments in FMG Pilbara v Yindjibarndi, I must consider carefully the likely activities of a grantee party, together with the regulatory regime, and the nature of any sites of particular significance.
As I noted in Top End v Baudin (at [9]):
The specific rights of the holder of an exploration licence and conditions that a holder of an exploration licence must comply with are set out in the MTA [Mineral Titles Act2010 (NT)].... The MTA operates with the MMA [Mining Management Act 2001 (NT)]. Before mining or substantial disturbance relating to exploration work commences in the Northern Territory, the grantee must apply for an Authorisation to carry out such activities, under the MMA (ss 4, 35). The Authorisation application must be accompanied by a Mining Management Plan (MMP) relating to the activities (s 36 of the MMA). Where the activities do not involve substantial disturbance of the site, an Authorisation is not required.
As I also noted in Top End v Baudin, activities such as travelling on the surface of the land by foot would not fall into the category of ‘substantial disturbance’.
Looking at the regulatory conditions to be imposed on the grant by the Territory, I note that much of the focus is on minimising harm or interference. Condition 5 of Schedule 1 focuses on the responsibilities of compliance and consequences of interference. There are a number of conditions which outline a grantee party to ‘have regard’ to their representations made during consultations with a native title party and requirements to consult (for example, Conditions 6(a)-(c) of Schedule 2), but nothing regards the outcome of such.
Other conditions referred to in the Territory contentions (at 28 for example), such as Condition 25 of Schedule 2, go to issues after interference, such as rectification or rehabilitation. Condition 7 and 8 respectively, of the same Schedule, focus on personnel and contractor education and the following 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.
Both the State (at 57) and Gempart (at 40) draw my attention to the Tribunal comments from Silver v Northern Territory, and in response I adopt my comments from Top End v Baudin (at [54]).
Evidence regarding interference with Ngubayin
Mr Watson outlines (at 18, 24, 28-29) in some detail his connection and responsibility to look after the named songlines, and the consequences that would occur if Ngubayin is damaged. However, the Territory (at 29(c)) and Gempart (at 60) are concerned that this evidence has not been made out in the context of the native title party traditions, largely because it is not said such ceremony occurs on the Ngubayin site. I have made comments on the issue of ceremony and its relevance being off or on site in my recent decision of Top End v Baudin #2 (at [46]-[53]).
I have noted the evidence of the Territory and Gempart at [32]-[43] above in terms of interference, and also considered the evidence outlined in and the decision in Limmen v Northern Territory. I am satisfied that given the description of interference given in this present inquiry, and the comments of McKerracher in FMG v Yindjibarndi, that even slight interference would be interference for the purposes of s 237(b) and that the applicable regulatory regime would not mitigate against that.
Evidence regarding interference with Beauty Plain
Top End outline that Beauty Plain is especially important as the creation and resting place for the relevant dreaming. However, little information is provided about the traditions associated with that dreaming in terms of interference with Beauty Plain. This is similar to the issues the Tribunal noted in Limmen v Northern Territory, where little information was provided in relation to the custom and tradition associated with Beauty Plain.
It may be that the area is culturally sensitive and so the native title party is reluctant to describe such as evidence for an inquiry. Whatever the reason, I could not conclude that, on the basis of the available evidence, Beauty Plain is likely to be subject to interference by exploration activity of Gempart.
Conclusion regarding interference with sites of particular significance
In the context of the Territory’s regulatory regime, and the native title party’s traditions, I am satisfied that at a minimum, Gempart would be able to enter and remain on Ngubayin. 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 Ngubayin. Following the reasoning of McKerracher J in FMG Pilbara v Yindjibarndi, what may appear to be inconsequential activity in the area of Ngubayin to Gempart, is likely to be substantial interference for the native title party.
Determination
I find the grant of exploration licence EL32888 to Gempart Ltd (NT) Pty Ltd is not an act which attracts the expedited procedure.
Ms Helen Shurven
Member
24 October 2022
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