There are two proceedings before the Court. Each proceeding is an appeal on a question of law from a decision of the National Native Title Tribunal (the Tribunal). In summary, each proceeding relates to a determination by the Tribunal that proposed grants of certain exploration licences were future acts attracting the expedited procedure under the Native Title Act 1993 (Cth).
The appeals relate to two decisions of the Tribunal:
The first decision, dated 2 May 2024, relates to the proposed grant of two exploration licences to Baudin Resources Pty Ltd (Baudin): The Top End (Default PBC/CLA) Aboriginal Corporation v Baudin Resources Pty Ltd [2024] NNTTA 30 (the Baudin Tribunal Reasons).
The second decision, dated 28 May 2024, relates to the proposed grant of two exploration licences to Daly Tenements Pty Ltd (Daly Tenements): The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Daly Tenements Pty Ltd [2024] NNTTA 41 (the Daly Waters Tribunal Reasons).
In each case, the central issue to be determined by the Tribunal was whether the proposed grants were future acts that attracted the expedited procedure in the Native Title Act. There was no issue that they were future acts; the issue was whether they attracted the expedited procedure. The key relevant provision was s 237 of the Native Title Act, which provides:
237 Act attracting the expedited procedure
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.
(Emphasis added.)
The focus for present purposes is on para (b) of s 237.
The Tribunal was constituted by the same member in both cases, and the Tribunal's reasons in both cases are similar.
In each case, the Tribunal concluded that the grants of the exploration licences were not likely to interfere and not likely to involve major disturbance as described in s 237. Accordingly, the Tribunal determined that they attracted the expedited procedure.
From each of those decisions, Top End (Default PBC/CLA) Aboriginal Corporation (Top End) appeals to this Court on a question of law. The two proceedings before this Court are:
Proceeding NTD8/2024 (the Baudin Proceeding), which relates to the proposed grants of two exploration licences to Baudin.
Proceeding NTD10/2024 (the Daly Waters Proceeding), which relates to the proposed grant of one exploration licence to Daly Tenements. Although there were two exploration licences (to be granted to Daly Tenements) in issue before the Tribunal, by its amended notice of appeal Top End has narrowed the appeal to only one of those exploration licences.
The first respondent to each proceeding is the Northern Territory of Australia (the Northern Territory). The second respondent to the Baudin Proceeding is Baudin. The second respondent to the Daly Waters Proceeding is Daly Tenements. The third respondent to each proceeding is the Tribunal.
The two proceedings in this Court were heard together over two days. Top End was represented by the same counsel and solicitors in both proceedings. Similarly, the Northern Territory was represented by the same counsel and solicitors in both proceedings. Baudin was represented by counsel and solicitors at the hearing (with counsel making submissions by video-conference). Daly Tenements did not appear at the hearing, having provided a submitting letter. The Tribunal did not appear at the hearing, also having provided a submitting letter.
In the Baudin Proceeding, Top End relies on a notice of appeal dated 29 May 2024. For reasons explained later in these reasons, it is convenient to deal with Top End's grounds in the following order: 2, 3, 4, 5 and 1. Top End's grounds (in that order) can be summarised as follows:
In relation to six areas or sites, the Tribunal erred in finding that those places were not of "particular significance" for the purposes of s 237(b) unless the native title holders provided some further "explanation" of their "particular significance" (ground 2).
The Tribunal's findings that the areas or sites referred to in ground 2 were not of particular significance in accordance with the traditions of the native title holders lacked an evidential and intelligible justification, and were legally unreasonable (ground 3).
In relation to two areas or sites, the Tribunal erred in concluding that evidence by individual native title holders about the nature of their connection under traditional laws and customs with those places did not reflect on the particular significance of the place to the native title holders according to their traditions (ground 4).
In relation to the Muynmin sites, the Tribunal erred in purporting to follow (or adopt) a finding that they were not of "particular significance" for the purposes of s 237(b) said to have been made in Top End (Default PBC/CLA) Aboriginal Corporation v Gempart (NT) Pty Ltd [2022] NNTTA 64 (Top End v Gempart), when the relevant finding by the Tribunal in that matter was to the contrary (ground 5).
The Tribunal erred in deciding that interference is not likely for the purposes of s 237(b) because, according to the Tribunal, interference "will generally involve physical intervention"; and a "presumption of regularity" can be accepted to the effect that the grantee will not enter an area or site of particular significance on the supposition that the grantee will comply with applicable legislation relating to sacred sites and conditions of the exploration licence (ground 1).
In the Daly Waters Proceeding, Top End relies on an amended notice of appeal dated 13 November 2024. Top End's grounds in that proceeding are, in summary:
In relation to three areas or sites, the Tribunal erred in finding that those places were not of "particular significance" for the purposes of s 237(b) unless the native title holders provided some further "explanation" of their "particular significance" (ground 1). This ground is essentially the same as ground 2 in the Baudin Proceeding.
The Tribunal's findings that the areas or sites referred to in ground 1 were not of particular significance in accordance with the traditions of the native title holders lacked an evidential and intelligible justification, and were legally unreasonable (ground 2). This ground is essentially the same as ground 3 in the Baudin Proceeding.
In relation to the Baudin Proceeding, for the reasons set out below, I have reached the following conclusions:
Ground 2 is made out.
It is therefore unnecessary to consider grounds 3, 4 and 5.
Ground 1 is not made out.
In relation to the Daly Waters Proceeding, for the reasons set out below, I have reached the following conclusions:
Ground 1 is made out.
It is therefore unnecessary to consider ground 2.
I will first outline the statutory framework. I will then discuss the nature of the appeal. I will then deal with each proceeding in turn.
[2]
Statutory framework
I will refer to the provisions of the Native Title Act as appearing in the compilation dated 12 June 2024, which is the compilation included in the parties' joint bundle of authorities.
In general terms, an act that takes place on or after 1 January 1994, which act is not a past act, and which act (apart from the Native Title Act) either validly affects native title in relation to land or waters or would, if it were not invalid (as a result of the existence of native title), so affect native title, is a future act under s 233 of the Native Title Act. In the present cases, it is not controversial that the grants of the exploration licences would be future acts.
Division 3 of Pt 2 of the Native Title Act deals with future acts. Section 24AA provides an overview of the Division. Basically, the Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not: s 24AA(2).
Unless a provision of the Native Title Act provides otherwise, a future act is invalid to the extent that it affects native title: s 24OA. Subdivisions A to N of Div 3 of Pt 2 of the Native Title Act contain various sections that provide that certain future acts are valid, notwithstanding their effect on native title.
The relevant Subdivision applicable to the grants of the exploration licences in the present cases is Subdiv M, which concerns acts that pass the freehold test. Section 24MB(1) identifies a category of acts to which the Subdivision applies. I note that s 24MB(1) includes similar language to s 237(b). Section 24MB(1) provides in part:
24MB Non-legislative acts
Freehold test
(1) This Subdivision applies to a future act if:
(a) it is an act other than the making, amendment or repeal of legislation; and
(b) either:
(i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or
(ii) the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters; and
(c) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:
(i) in the area to which the act relates; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.
Example: An example of a future act covered by this subsection is the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it.
(Emphasis added.)
Where Subdiv M applies to a future act, then, subject to Subdiv P (which concerns the right to negotiate), the act is valid: s 24MD(1).
Subdivision P applies, relevantly, to the conferral of mining rights (ss 25(1)(a) and 26(1)(c)(i)), which includes a right to explore: s 253 ("mine", sense (a)). The Subdivision requires that, before the future act is done, the Government party must give notice of the act in accordance with s 29: s 29(1). If the Government party does not include (in the notice under s 29(1)) a statement that the Government party considers the act is an act attracting the expedited procedure (see below), the Government party must give the native title party an opportunity to make submissions regarding the act and an opportunity to negotiate on whether the act should be done and, if so, on what conditions: s 31(1).
However, the notice under s 29(1) may include a statement that the Government party considers the act is an act attracting the expedited procedure: s 29(7). If the native title party does not object to that statement, or if any objection is withdrawn, or if the Tribunal finds that the expedited procedure does apply, the Government party may then do the act without negotiation: ss 32(2), (4) and (6). On the other hand, if the Tribunal finds that the expedited procedure does not apply, the act can only be done following the negotiations required by s 31(1): s 32(5).
Section 237, which defines when a future act is an act attracting the expedited procedure, has been set out in the Introduction to these reasons. In Cheinmora v Striker Resources NL (1996) 142 ALR 21 (Cheinmora), Carr J stated at 34-35:
I have reached the conclusion that the tribunal's construction of s 237(b) is correct, ie that a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough that the site simply be of significance to the native title holders. That would leave the word "particular" with no work to do. It would also involve a notional transposition of that word from being in front of "significance" (as it appears in the subsection) to immediately after it. If parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word "particular" out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the native title party claims are of particular significance, the tribunal will have to make its own factual assessment of that matter.
(Emphasis added.)
I note that in oral submissions, senior counsel for Top End challenged a statement in the Tribunal's reasons (at [28]) reflecting the above passage, but senior counsel said it was "not probably pivotal" (T13). I note also that question of law 3 in the Baudin Proceeding and question of law 2 in the Daly Waters Proceeding raise an issue regarding the above passage.
It is established that the references to "likely to interfere" and "likely to involve major disturbance" in s 237 are references to whether there is a real chance or risk of interference or major disturbance of the kind contemplated: Smith v Western Australia [2001] FCA 19; 108 FCR 442 (Smith v Western Australia) at [23] per French J. In that paragraph, French J stated:
The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term "likely" in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such a judgment would potentially permit, without benefit of any negotiation, quite significant risks (of that interference or major disturbance) to be incurred. To put it crudely and quantitatively, on that construction a forty nine per cent chance of interference or major disturbance flowing from the act proposed would keep it within the realm of the expedited procedure. Consistently with the objects of the Act, the word "likely" requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237. Such an approach to the construction of the word "likely" is familiar in Australia although it depends upon the particular statutory context in which the word is used …
Where an objection is made (ss 32(3) and 75), the Tribunal must hold an inquiry into the objection: s 139(b). The Tribunal must accord the parties procedural fairness and give them an opportunity to present their case: ss 142 and 156(3). The rules of evidence do not apply: s 109(3). There is no formal onus of proof, but the Tribunal will apply a "commonsense approach to the evidence": Ward v Western Australia (1996) 69 FCR 208 (Ward v Western Australia) at 216-218 per Carr J.
On completion of the inquiry, the Tribunal must make a determination as to whether or not the expedited procedure applies. The determination must be in writing and must state any findings of fact on which the determination is based: ss 162(2) and 164. (Section 162(2) was considered by the Full Court of this Court in Parker v Western Australia [2008] FCAFC 23; 167 FCR 340 (Parker v Western Australia).) An "appeal" then lies to this Court from such determinations, but only on a "question of law": s 169(1).
If negotiations are required, and if agreement is not reached within six months of the notification day, a party may apply to the Tribunal (s 35) for a determination under s 38 about whether the act may be done. When making that determination, the Tribunal must take into account the matters listed in s 39(1). I note that one of these matters contains similar wording to s 237(b). Section 39(1) provides in part:
39 Criteria for making arbitral body determinations
(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
(Emphasis added.)
Section 39(3) provides:
Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
[3]
Nature of the appeal
Although described as an "appeal", a proceeding under s 169(1) of the Native Title Act is within the Court's original (rather than appellate) jurisdiction, and is in the nature of judicial review: see, in relation to a comparable provision, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15] per Gaudron, Gummow, Hayne and Callinan JJ. Such a proceeding is confined to an appeal "on a question of law"; it is not sufficient that the appeal merely involves a question of law: see, in relation to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (which is a comparable provision), Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 (Haritos) at [194]. Given this, the Court must not usurp the fact-finding function of the Tribunal: Haritos at [194].
It is established that, where a decision-maker has adopted a wrong approach to the task, such an error may be corrected in an appeal on a question of law: see, eg, Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12-13 per Davies and Beazley JJ (with whom Hill J agreed), approved in Haritos at [126], [131] and [200].
[4]
Background facts
The background facts set out below are drawn from the Baudin Tribunal Reasons.
On 12 January 2022, the Northern Territory gave notice pursuant to s 29 of the Native Title Act of its intention to grant two exploration licences, EL32937 and EL32938, to Baudin. This notice included a statement that the Northern Territory considered the grants to be acts attracting the expedited procedure (see s 32 of the Native Title Act).
The licence EL32937 is located approximately 260 km south-east of Katherine at its closest point and is approximately 822 km2 in size. This licence overlaps the Tanumbirini Pastoral Lease and the Nutwood Downs Pastoral Lease native title determinations.
The licence EL32938 is located approximately 330 km to the south-east of Katherine at its closest point and is approximately 741 km2 in size. The Tanumbirini Pastoral Lease, the Beetaloo Pastoral Lease and the Broadmere Pastoral Lease native title determinations each partially overlap this proposed licence.
Top End is the registered native title body corporate for each of the native title groups relating to the determinations referred to above. As such, it lodged objections with the Tribunal against the Northern Territory's contention that the expedited procedure applied to the grant of the proposed licences.
The licences are both exploration licences, a type of licence outlined in Pt 3, Div 1 of the Mineral Titles Act 2010 (NT). Exploration licences can be granted for up to six years with the Minister able to grant additional two year extensions (ss 27(3) and 30, Mineral Titles Act).
Pursuant to s 26 of the Mineral Titles Act, the holder of an exploration licence possesses the exclusive right to conduct exploration for minerals in the licence area, which includes geological survey, rock sampling, drilling and digging pits, trenches and holes, sinking bores and tunnels and extracting and removing for testing samples from the licence area (s 31(1), Mineral Titles Act). Section 31(2) of the Mineral Titles Act provides that the holder may remove samples in larger quantities if the Minister is satisfied that it is appropriate and has authorised the removal.
In its application to the Northern Territory, Baudin provides identical work programs for both licences. Baudin describes the licence areas as being prospective for copper, lead and zinc and that exploration will include techniques such as gravity, magnetic and seismic survey in addition to on ground chipping, sampling and drilling.
In a witness statement relied on by Baudin before the Tribunal, Ms Sarah James sets out that the work program for years one and two will be the same for both application areas. In year one, Ms James states she expects on-site geological mapping, rock shipping and the collection of samples to be conducted by small crews of two to four people by way of four wheel drive access and on foot. This would occur in several field visits of between three to five days.
Ms James explains that year two activities include further field visits via four wheel drive and all-terrain vehicles for the purpose of geological mapping and soil sampling, the amount and location of which is dependent on previous results. Soil sampling is said to involve taking a small amount of soil from a grid pattern of 100 to 200 metres in a defined area. Geological mapping would be expected to take from five to seven days while a soil sampling program is expected to take from two to three weeks. Geophysical survey is also planned to occur during year two, either through airborne survey or by taking on ground measurements in a similar fashion to that described above.
No work program beyond year two is provided due to it being dependent on earlier results. Should results be positive, a drilling program is likely to occur with an estimate of five drill holes in years three and four with further and close spaced drill holes in years five and six. Ms James states that the area directly impacted by drilling is 15-25 metres and that it is understood that Baudin must have an approved mining management plan.
The Northern Territory provided the Tribunal with a copy of the abstract of records from the Aboriginal Affairs Protection Authority (AAPA) (the AAPA abstract) for the area of the proposed leases. This indicates that EL32937 contains six recorded sacred sites and EL32938 contains eight recorded sacred sites.
The AAPA abstract also shows that much of the two proposed leases was covered by previous Authority Certificates, namely, certificates issued by the AAPA to conduct activity. Within these Authority Certificates, two of the recorded sites in EL32937 and five of the recorded sites in EL32938 are surrounded by restricted work areas. This indicates that, in issuing an Authority Certificate for a previous activity, the AAPA placed restrictions on the kind of activities which were permitted in these areas, although the specifics of the restrictions are not included. Two of the sites in each licence area have not been subject to a previous Authority Certificate.
Top End contended before the Tribunal that the following seven places were sites of particular significance for the purposes of s 237(b) (see the Tribunal's reasons at [29]):
the Ambulya site;
the Labanga site;
the Anderson Waterhole site;
the Muynmin sites;
the Beauty Plain site;
the Binda site; and
the ceremony ground at OT Downs homestead.
[5]
General matters
At [9]-[11], the Tribunal outlined the material before the Tribunal. The Tribunal noted that, with the agreement of all parties, the applications were dealt with on the papers (i.e., without the need for a hearing).
After setting out the background facts, the Tribunal stated at [26]:
In conducting this inquiry, I must look at what is likely to result from the grant of the licences and decide whether there is a real chance or risk of interference or disturbance as outlined in s 237 of the Act and therefore, whether they are acts that attract the expedited procedure (Smith v Western Australia [[2001] FCA 19; 108 FCR 442] at [23]).
The Tribunal then stated that the legal principles were outlined in Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (Yindjibarndi v FMG) at [15]-[21]. I note that that passage from the reasons of the Tribunal in Yindjibarndi v FMG included (of relevance for present purposes):
[15] In relation to s 237 generally, the applicable legal principles are set out by Deputy President Sumner in Walley v Western Australia [(2002) 169 FLR 437] at [7] - [11] and are adopted for the purpose of this determination. In summary, they are as follows:
(a) in respect of all three limbs of s 237, the Tribunal is required to make a predictive assessment and look at what is likely to occur (Walley v Western Australia at [8], citing French J in Smith v Western Australia at [23]; endorsed by Nicholson J in Little v Western Australia at [68]-[72]);
(b) the adoption of a predictive assessment approach means that evidence of a grantee party's intentions, including as to protection of sites of particular significance, may be relevant but the weight to be given to such evidence will depend on the circumstances of the case. In the absence of evidence of the grantee party's intentions, the question of likelihood must be assessed by reference to the applicable regulatory regime on the basis that the rights given will be exercised to the full (Walley v Western Australia at [9], referring, inter alia, to Western Australia v Smith at [35]; Silver v Northern Territory at [25]-[32] and [122]);
(c) no party bears an onus of proof and the Tribunal is required to adopt the commonsense approach to the receipt of evidence explained by Carr J in Ward v Western Australia at 215-218 (Walley v Western Australia at [10]); and
(d) 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 the regulatory regime, including conditions imposed, which governs the exercise of rights under the grant (Walley v Western Australia [(2002) 169 FLR 437] at [11], referring to: Western Australia v Smith [(2000) 163 FLR 32] at [37]; Ward v Western Australia [(1996) 69 FCR 208] at 228 and 230; Little v Western Australia [[2001] FCA 1706] at [76]-[77]).
…
[17] As Deputy President Sosso explained in Silver v Northern Territory [(2002) 169 FLR 1; [2002] NNTTA 18] (at [88]), s 237(b) focuses the inquiry towards areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title. The applicable principles discussed in Silver v Northern Territory (at [88]-[92], [101]-[102]) are as follows:
(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 [[1999] NNTTA 210]);
(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).
[18] As explained in Parker v Ammon [[2006] NNTTA 65] at [35], whilst the Tribunal is entitled to have regard, and give considerable weight, to the Government party's site protection regime (relevantly in this matter, the provisions of the Aboriginal Heritage Act 1972 (WA) ('AHA')), this does not mean that in all cases the protective regime will be adequate to make interference unlikely under s 237(b). This approach was approved by Siopis J in Parker v Western Australia [[2007] FCA 1027] at [18].
(Emphasis added.)
Returning to the present case, the Tribunal referred (at [27]) to paras (a) and (c) of s 237. The Tribunal stated that Top End made no contentions in relation to those paragraphs. The Tribunal stated that, applying the approach outlined in Ward v Western Australia at [26], it found that the grant of the licence was not likely to cause interference or disturbance under s 237(a) and s 237(c). The citation for Ward v Western Australia provided in the Tribunal's reasons is (1996) 136 ALR 557; [1996] FCA 1452. The ALR citation corresponds to the case reported as Ward v Western Australia (1996) 69 FCR 208. That version of the case does not contain paragraph numbers. However, it appears likely that the Tribunal was referring to the passage at 216-218 of that case in which Carr J held that the Tribunal should adopt "the commonsense approach to evidence" referred to by Woodward J in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356-358.
The balance of the Tribunal's reasons related to s 237(b). The Tribunal identified the principles it would apply at [28]:
For an area or site to be regarded as being of particular significance for the purposes of s 237(b) of the Native Title Act, it must be of special or more than ordinary significance to the native title holders in accordance with their traditions. It must be known, able to be located and for its significance to be explained to the Tribunal (see Yindjibarndi v FMG [17] and cases cited therein).
(Emphasis added.)
The Tribunal then considered whether the sites that had been identified by Top End were of particular significance for the purposes of s 237(b).
[6]
The Ambulya site
The Tribunal considered this site at [31]-[38], concluding it was not a site of particular significance for the purposes of s 237(b). The Tribunal's reasons were as follows. (I set out the reasons in full, as this is necessary for the purposes of considering the appeal grounds.)
[31] Top End provides that the Ambulya site is a billabong located within EL32937. Ms Farrar explains that Ambulya is located near Arnold River, on the Tanumbirini pastoral lease, about 5km from the Alawa Land Trust boundary.
[32] Top End do not equate the Ambulya site to any of those recorded in the AAPA abstract. However, Baudin contends that this site corresponds to 'Ambullya Waterhole' on the topographic map provided by the Territory which has a recorded site and prior restricted work area at this location in the AAPA Abstract. I accept this contention from Baudin.
[33] Ms Farrar characterises the Ambulya site as a sacred site and sugarbag country. She also describes a cultural process associated with the site through which she was assigned, for want of a more culturally appropriate phrase, with a second father in addition to her biological father. Ms Farrar further details that Ambulya is where 'the Sugarbag and the Kangaroo met' and that they are 'connected through ceremony'. Top End explains that it is a crossover point for Sugarbag and Kangaroo dreaming which are connected through ceremony.
[34] Ms Farrar provides further information derived from and relating to visits to the site including some testimony on fishing and the collection of bush tucker and medicine. In addition to this, Ms Farrar describes that access, and namely fishing, is only able to be attained in certain places.
[35] Mr Swanson's statement also provides information relating to the Ambulya site, characterising it as an important place and detailing visits in a similar manner to Ms Farrar. In this, Mr Swanson speaks of fishing and hunting as well as the collection of bush tucker and medicine.
[36] Baudin contends that Ambulya is not a place of particular significance, arguing that association with dreamings does not establish a place as being of particular significance. This does describe the general approach taken by the Tribunal, however it must be noted that this is not universal and must be taken on a case by case basis as indicted by President Dowsett in Waturta v Piper Preston at [39]-[48]. Baudin also contends intergenerational teaching does not in itself create a site of particular significance, given it could be expected that all dreaming sites are the subject of this.
[37] The Territory contends that a conclusion of particular significance does not necessarily follow the association of a place with a dreaming, arguing there is no clear basis for attributing 'particular' significance as opposed to a more general idea of the site as being of significance. Mr Swanson, the Territory contends, refers to the site as being important, but does not necessarily offer reasons as to why this is the case while Ms Farrar expresses why the site is personally significant but does not reflect the significance to the group more broadly.
[38] It is clear that Ambulya is a site of significance, the evidence provided is compelling enough to demonstrate this. In this case however, the test is whether the site is of particular significance and it is my view that the evidence provided falls short of showing this. Ms Farrar provides a foundation of evidence in describing the attributes of the place including an outline of the traditions of the group as it pertains to the site and to herself personally. In my view however, this description does not then go on to explain the particular significance of the site. While I acknowledge the site can be seen to be of importance, in this instance I am of the view that insufficient evidence has been provided to establish its particular significance in the context of s 237(b). As such, I do not find that Ambulya is a site of particular significance.
(Emphasis added.)
[7]
The Labanga site
The Tribunal considered this site at [39]-[42], concluding it was not a site of particular significance for the purposes of s 237(b). The Tribunal's reasons dealt with the location of the site and summarised the evidence. The Tribunal then reasoned at [42]:
Having reviewed the materials before me, I am of the view that insufficient evidence has been provided to establish Lambanga as a place of particular significance. The site has been described in broad terms however the evidence has not gone to an explanation of particular significance as required in considering s 237(b). As such, I do not find Lambanga is a place of particular significance.
(Emphasis added.)
[8]
The Anderson Waterhole site
The Tribunal considered this site at [43]-[45], concluding it was not a site of particular significance for the purposes of s 237(b). The Tribunal referred to the evidence and stated that there was some difficulty understanding whether the site was within or outside of the proposed licence. The Tribunal then stated at [45]:
Little hinges on this issue however, as aside from the information summarised above, no further evidence on the particular significance of the Anderson Waterhole has been provided. On this basis, I do not find that Anderson Waterhole is a place of particular significance.
I note that the reasons of the Tribunal in relation to this site did not refer to an absence of an explanation of the significance of the site. However, in the context of the Tribunal's reasons in relation to the previous two sites, it may be that this formed an implicit part of the Tribunal's reasons in relation to the Anderson Waterhole site.
[9]
The Muynmin sites
The Tribunal dealt with these sites at [46]-[52], concluding that they were not sites of particular significance for the purposes of s 237(b). The Tribunal's reasoning was as follows:
[46] Top End provides that the Muynmin sites comprise a rock formation and a waterhole. They are described by Mr Hume as a waterhole about 500 metres east of the old Tanumbirini homestead and a rock formation in between the waterhole and the homestead.
[47] While the location of the old Tanumbirini homestead is partially obscured in the topographic map provided by the Territory, as is the name of the waterhole immediately to the east, its location can be made out and it is clear this area is located within EL32938, albeit in close proximity to its northern border.
[48] Baudin contend that the site corresponds to a recorded sacred site in the AAPA Abstract, that this is corroborated by the Territory's topographic map and that the waterhole adjacent to the old Tanumbirini homestead is called Muynmin Waterhole on this map. In my view, these contentions from Baudin align with the evidence provided by Top End and the material provided by the Territory, and as such I accept them.
[49] Regarding the sites, Mr Hume sets out that the rock formation and the waterhole are 'important sites for my Devil Devil dreaming' and that this dreaming comes from a place called Marnta which is situated on Beetaloo station, and through Tanumbirini near the old homestead.
[50] As mentioned, Mr Hume sets out that the waterhole is about 500 metres from the old homestead and is part of the Devil Devil dreaming. The rock formation is described as being not far from the old homestead, a couple of minutes walk towards the homestead from the waterhole, and says it is a sacred place where 'no white fella can go … unless they go with the right people.'
[51] Both Baudin and the Territory contend that the evidence provided does not sustain the contention that the Muynmin sites are places of particular significance. Baudin add a further contention related to the amount of visitation to the site, arguing that it isn't possible to adequately respond to the evidence regarding these sites without particulars surrounding the utilisation of the area and how often this occurs. This however, is not a consideration in regard to s 237(b). A site may be seldom visited by virtue of it being a place of particular significance.
[52] These sites were also considered in Top End v Gempart [Top End (Default PBC/CLA) Aboriginal Corporation v Gempart (NT) Pty Ltd [2022] NNTTA 64] at [28]-[29]. I have arrived at a similar view, that the evidence provided is insufficient to enable a finding of particular significance. As previously, it is clear the site is of significance, however while Top End has described site attributes, it has not fully explained the particular significance beyond the assertion that it is. Accordingly, I do not find the Muynmin sites are places of particular significance.
(Footnote omitted; emphasis added.)
I note that, by ground 5 of the appeal, Top End submits that the Tribunal was incorrect to say (in [52]) that its view was similar to that reached in Top End v Gempart at [28]-[29].
[10]
The Beauty Plain site
The Tribunal considered this site at [53]-[57] of its reasons. The Tribunal stated that it seemed likely that the site was located outside the area of the relevant exploration licence. The Tribunal noted that this site was found to be a place of particular significance in Top End v Gempart at [27]. Largely in reliance on that finding, the Tribunal concluded that Beauty Plain is a place of particular significance for the purposes of s 237(b).
[11]
Cemetery at Old Tanumbirini Homestead
At [58]-[60] of its reasons, the Tribunal considered whether the cemetery at Old Tanumbirini Homestead was a site of particular significance for the purposes of s 237(b). I note that this was not one of the places identified by Top End as being of particular significance (see the list at [45] above). In any event, the Tribunal concluded that the site was not of particular significance.
[12]
The Binda site and the ceremony ground at OT Downs homestead
I note that these sites are separately identified in the list of sites set out earlier in the Tribunal's reasons at [29]. The Tribunal considered them together at [61]-[70] of its reasons. The Tribunal concluded that the Binda site complex is a place of particular significance for the purposes of s 237(b), but the ceremony ground is not. The Tribunal's reasons included:
[69] Having examined the evidence before me, I am satisfied that the Binda site complex is a place of particular significance. My view on this is similar to that of the Territory in that the evidence provided here is more detailed and the nature of the particular significance is more adequately explained. I am also of the view that the combination of cultural factors surrounding the sites as described in the evidence provided by Top End reinforces this finding.
[70] While my initial view was that the ceremonial ground at the old OT Downs homestead should be considered as part of the same site complex, Mr John does differentiate between the places in question. Considered on its own merits, I have formed the view that the evidence provided is insufficient to enable me to find it is a place of particular significance.
(Footnotes omitted; emphasis added.)
[13]
Likely interference issue
Having identified that the Beauty Plain site and the Binda site complex are sites of particular significance, the Tribunal then considered (at [71]-[94]) whether there was likely to be interference with those sites within the meaning of s 237(b). In relation to both sites, the Tribunal concluded that there was not likely to be such interference: at [92], [94].
The Tribunal set out the principles it would apply at [72]-[73], relying on Yindjibarndi v FMG at [17]-[18]. Of relevance to one of the appeal grounds, the Tribunal stated at [72]:
In short, there must be a real risk of interference with the area or site of particular significance and this will generally involve physical intervention.
(Emphasis added.)
The Tribunal first considered the Binda site complex. The Tribunal's reasons included:
[76] The regulatory environment of the Territory is a key consideration, the main statutes under consideration in this case being:
a) Sacred Sites Act 1989
b) Land Rights Act 1976
c) Heritage Act 2011
d) Mining Management Act 2001
e) Mineral Titles Act 2010
[77] In addition to this, the Territory is set to impose conditions on the grant of title contained in two schedules, known as the 'First Schedule' and 'Second Schedule.'
[78] The definition of a sacred site is provided by the Land Rights Act and is adopted by the Sacred Sites Act. A 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.
[79] All sacred sites are protected by the Sacred Sites Act which at s 33 makes it an offence to enter onto, work on a sacred site except in performing a function of or in accordance with the Act. It also makes it an offence to desecrate a sacred site. Additionally, the Land Rights Act makes it an offence at s 69(1) to enter onto or remain on a sacred site unless acting in accordance with an Act of the Territory.
…
[85] As an additional layer, the Territory proposes to impose conditions on the grant of the proposed licences. The Second Schedule conditions in particular contain consultation and site protection measures. In conducting these consultation measures, enlivened for any exploration activities other than reconnaissance, Baudin must have regard to the representations made to it by custodians however, is not required to adopt what these representations may urge. Should these representations reveal the existence and/or location of sacred sites that may not be registered or recorded, Baudin would be required to comply with the prohibition of entry contained within the Sacred Sites Act.
[86] Both the Territory and Baudin contend that the expedited procedure should apply by virtue of the statutory and regulatory environment. Additionally, both the Territory and Baudin contend that the presumption of regularity applies. In accordance with this, both the Territory and Baudin will not act in a manner contrary to this statutory and regulatory environment and in Baudin's case, the conditions imposed. I accept the presumption of regularity applies.
[87] In keeping with this, Baudin contends it understands its legal obligations and notes the requirement for contractor training on sacred site management in any mine management plan prior to ground disturbing activity per the Mining Management Act. As such, Baudin contends that any places found to be of particular significance in this matter are not likely to be interfered with due to the statutory and regulatory environment, the conditions to be applied by the Territory and because the location of any places of particular significance is known and can therefore be avoided in compliance with statute, namely the Sacred Sites Act.
…
[91] … I am satisfied that the Binda site has been described with sufficient precision by the native title party which, when used alongside the AAPA abstract, allow the location and the elements of the Binda site to be readily discernible and thereby avoided. Having accepted the presumption of regularity and given simple entry onto such a place is an offence, I accept that Baudin is unlikely to enter onto the Binda site. Given the previous Authority Certificates and restricted work areas, I would also consider that Baudin is effectively on notice in relation to this site, further containing the risk of interference.
[92] Given these factors, I do not find that the Binda site is likely to be subject to interference. This finding is not dissimilar to that of Member Shurven in Top End v Baudin at [83], although in this case the certainty of location is provided through description rather than fencing. I would also remark that this approach would apply to the other places put forward by Top End that I have not found are places of particular significance given the precision of their described location.
(Emphasis added.)
In relation to the Beauty Plain site, the Tribunal stated at [93]-[94]:
[93] Although the observations on the statutory and regulatory regime also stand for the Beauty Plain site, its location is less clear. What is clear however is that it is outside of the proposed tenements so as mentioned, it must be shown how the site would be directly and physically affected by exploration activities including off site activities (Silver v Northern Territory at [89]).
[94] I am not satisfied that this has been shown. Despite uncertainties with the Baudin work program post year two, there is insufficient evidence to suggest that the activities of Baudin or the access it requires to the prospective leases will impact upon Beauty Plain. In accordance with this, I do not find there is a real risk of interference or disturbance with the Beauty Plain site.
(Emphasis added.)
Accordingly, the Tribunal concluded that the grants of the two exploration licences to Baudin were acts attracting the expedited procedure.
[14]
Consideration
Top End relies on four questions of law and five grounds in its notice of appeal. Ground 1 relates to the part of the Tribunal's reasons (at the end of the reasons) that dealt with the likely interference issue, while grounds 2, 3, 4 and 5 relate to the earlier parts of the Tribunal's reasons in which it held that certain sites were not of particular significance for the purposes of s 237(b). To reflect the order in which the Tribunal dealt with the issues, it is convenient to address the grounds in the following order: 2, 3, 4, 5 and 1. This is consistent with order in which they are dealt with in Top End's written submissions.
[15]
Ground 2
By ground 2, which relates to questions of law 2 and 3 in the notice of appeal, Top End contends, in summary, that, in relation to Ambulya, Labanga, the Anderson Waterhole, the Muynmin sites, the cemetery at Old Tanumbirini Homestead, and the ceremony ground at OT Downs Homestead, the Tribunal erred in finding that those places were not of "particular significance" for the purposes of s 237(b) unless the native title holders provided some further "explanation" of their "particular significance".
Top End submits that the requirement of an "explanation" of significance imposed by the Tribunal is a gloss, and misconstruction, of the phrase "areas or sites of particular significance, in accordance with their traditions" used in s 237(b) and elsewhere in the Native Title Act; the Tribunal asked the wrong question.
In response, the Northern Territory first submits that Top End's ground is contrary to its position before the Tribunal. The Northern Territory refers to Top End's statement of contentions in the proceeding before the Tribunal (a copy of which is included in Pt C of the Appeal Book in this Court), in which Top End contended:
The legal principles concerning the Tribunal's assessment for the purposes of s237 NTA were set out in Yindjibarndi v FMG at [16]-[18].
…
In relation to s 237(b), the NTP [native title party] must adequately explain the importance and significance of a particular site in accordance with the native title holders' traditional laws and customs. [footnote 8: Crowe and Others v Western Australia and Another (2008) 218 FLR 429; [2008] NNTTA 71 at [85]].
It is true that the ground now relied on by Top End raises a new issue on appeal and, indeed, is contrary to the position adopted by Top End before the Tribunal. However, I do not consider that Top End should necessarily be precluded from raising this issue.
In Haritos at [80]-[83], the Full Court discussed whether, on an appeal on a question of law, an issue may be raised that was not raised previously with the Tribunal. After discussing the principles applicable to the raising of a new issue on appeal from a single Judge to a Full Court, the Full Court stated at [80]:
An analogous approach informs the decision of the Court in its original jurisdiction as to whether or not, in a s 44 appeal, it will entertain an issue that was not previously raised in the Tribunal. See, for example, Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 where, in an appeal under s 44 of the AAT Act, in the Court's original jurisdiction, Beazley J, as her Honour then was, rejected the submission that there was an absolute principle that a new issue may not be raised before the Federal Court on an appeal from the Tribunal. See also Repatriation Commission v Warren (2008) 167 FCR 511 where Lindgren and Bennett JJ observed, at [78], that the Court in its original jurisdiction will more readily permit a matter to be raised for the first time on an appeal from the Tribunal where: (a) the matter is a pure question of law, such as a question as to the validity of a regulation: see Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343-344; 35 ALR 186 at 195; Tefonu at 367, or a question as to whether the Tribunal had applied the correct standard of proof on the true construction and application of legislation: Ferriday v Repatriation Commission (1996) 69 FCR 521 at 527-528 per Lee J; (b) the matter goes to a misapprehension that was shared by the parties before the Tribunal and therefore by the Tribunal itself: see Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 at 418-419 per Wilcox J, such as a shared misapprehension as to the applicable law: cf Thomas v Repatriation Commission (1994) 50 FCR 112 at 120 per Beazley J; or (c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual: see Kuswardana.
(Emphasis added.)
In the present case, Top End's contention below (regarding the need for explanatory evidence) accorded with statements that had been made in previous Tribunal decisions. It was therefore to some extent understandable that Top End framed its contentions in that way. The issue that is now raised is an issue of statutory construction. This is not a situation where, had Top End raised the issue below, the evidence might have been different, because the contention on appeal is that it is not necessary to have explanatory evidence. I therefore consider it open to Top End to rely on the ground, even though it was not raised below and, indeed, is contrary to the position put below.
The Northern Territory further submits that the approach taken by the Tribunal was consistent with the statutory scheme and authority. The Northern Territory's submissions can be summarised as follows:
Once it is accepted that it was necessary for evidence to be adduced that showed that a site had "special or more than ordinary significance", evidence that a site has that character will be peculiarly within the knowledge of the native title party such that, if it is not led, the Tribunal cannot be criticised for not making such a finding: Ward v Western Australia at 216-217 per Carr J. Further, where evidence is adduced, it is a matter for the Tribunal what findings of fact can be drawn from it. For example, the Tribunal is entitled not to accept a bare assertion that a site is of particular significance: Silver v Northern Territory (2002) 169 FLR 1 (Silver v Northern Territory) at [89] per Member Sosso.
The proposition that the native title holders must explain the significance of the site is consistent with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and its treatment in Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106; 123 FCR 62 (Chapman v Luminis). In that case, von Doussa J said that Aboriginal evidence about the risk of damage caused by the construction of a bridge could not be attacked on the basis that the spiritual belief was "irrational". Nevertheless, understanding the reason why a proposed use of an area is inconsistent with Aboriginal tradition was not "irrelevant" and acceptance of the existence of the tradition, the beliefs involved and their content would depend upon ordinary evidentiary assessments: at [391], [393]. That was so even in a statutory scheme that deemed there to be interference "without any need for the demonstration by a process of reasoning to the satisfaction of a non-Aboriginal mind why one of those circumstances will cause harm": at [393]. There is no equivalent deeming provision in the Native Title Act.
Finally, this approach produces no tension between the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act) and the Native Title Act's reference to laws of that kind. The sites here were recorded (not registered) such that they had not gone through any assessment process that would ensure that they are "sacred sites" under the Sacred Sites Act: Pt III, Div 2. Further, because the definition of a "sacred site" refers to a site which is sacred "or otherwise of significance" simpliciter, a site of "particular significance" will always be a "sacred site", but the reverse will not always be true. As such, the Tribunal has said that, while registration of a site may be relevant, it will be of limited assistance without knowing the basis on which registration occurred: Doolan v Tri-Star Energy Company [2017] NNTTA 44 at [33], [36] (Member McNamara); Parry v Northern Territory [2002] NNTTA 239 at [85] (Member Sosso). In any event, the Tribunal plainly had regard to the fact that some of these sites were recorded: Baudin Tribunal Reasons, [32], [40] and [48].
The Northern Territory also submits that, even if there was error as identified in ground 2, that would be immaterial. The Northern Territory notes that the Tribunal concluded in the last sentence of [92] (see above) that, even if the relevant sites had been sites of particular significance, it would not have found that they were likely to be interfered with, for the same reasons that the Tribunal reached that conclusion concerning the Binda site. Therefore, the Northern Territory submits, ground 2 depends upon the success of ground 1.
In my view, the Tribunal did adopt an erroneous approach, in that it approached the matter on the basis that it was incumbent on the native title holders to provide an explanation of the particular significance of the site.
The point may be illustrated by the Tribunal's treatment of the Ambulya site at [31]-[38] of its reasons (see [52] above). Although [38] has already been set out, I set out that paragraph again for ease of reference:
[38] It is clear that Ambulya is a site of significance, the evidence provided is compelling enough to demonstrate this. In this case however, the test is whether the site is of particular significance and it is my view that the evidence provided falls short of showing this. Ms Farrar provides a foundation of evidence in describing the attributes of the place including an outline of the traditions of the group as it pertains to the site and to herself personally. In my view however, this description does not then go on to explain the particular significance of the site. While I acknowledge the site can be seen to be of importance, in this instance I am of the view that insufficient evidence has been provided to establish its particular significance in the context of s 237(b). As such, I do not find that Ambulya is a site of particular significance.
(Emphasis added.)
It is apparent from this paragraph that, although the Tribunal considered the site to be a "site of significance" and accepted that it could be seen to be of "importance", the Tribunal concluded that the site was not of particular significance because the native title holders' evidence did "not then go on to explain the particular significance of the site". It was on this basis that the Tribunal concluded that the native title party had provided insufficient evidence.
It is likely, given the Tribunal's citation (at [28] of its reasons) of Yindjibarndi v FMG at [17], that the Tribunal was relying on the "principle" stated in that case at [17(b)], namely that "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" (emphasis added). However, it is nevertheless not entirely clear what the Tribunal in the present case had in mind by requiring that there be evidence explaining the particular significance of the site.
If all that the Tribunal in the present case was saying was that the evidence of the native title holders needed to go beyond mere assertion that the site had particular significance (in accordance with their traditions), then I do not consider there to be any difficulty with that approach. That approach is consistent with the commonsense approach to evidence discussed by Carr J in Ward v Western Australia at 216-218. However, it is difficult to accept that that is all the Tribunal was saying. That is because the evidence provided in relation to the Ambulya site (as summarised by the Tribunal at [33]-[35]) clearly went beyond mere assertion (one example being the description of the site as a crossover point for the Sugarbag and Kangaroo dreaming), and the Tribunal accepted that the site was a "site of significance" and could be seen to be of "importance".
It seems, therefore, that the Tribunal was erecting an additional hurdle, namely that the native title holders needed to provide evidence of a certain character (namely, evidence that explained the particular significance of the site in accordance with their traditions) before the Tribunal would conclude that the site was a site of particular significance. The difficulty is that the legislation does not support the existence of such a hurdle. The legislation does not in terms require the native title holders to provide an explanation of the particular significance (in accordance with their traditions) of the site. Nor does it implicitly require this. The relevant provision (s 237(b)) needs to be read in context. It forms part of a legislative scheme for deciding whether a proposed future act is to be the subject of the expedited procedure (rather than the normal procedure, which contains greater protections for native title holders). Under this scheme, it is necessary to determine whether a site is of particular significance (in accordance with the traditions of the native title holders) before considering whether the act is likely to interfere with the site. That a site is of particular significance (in accordance with the traditions of the native title holders) may be established in a variety of ways. Those ways do not necessarily require an explanation of the particular significance of the site. For example, it may be sufficient to show (with cogent evidence) that the site is considered to be of special or more than ordinary significance (in accordance with the traditions of the native title holders), without providing an explanation of why the site is so regarded. Indeed, it may be very difficult to explain why the site is so regarded: see, by analogy, Chapman v Luminis at [392] per von Doussa J. For these reasons, in my view, there is no implicit requirement that an explanation of the particular significance of the site be provided. In my view, the Tribunal's approach involved a misconstruction of the Act by imposing an additional requirement (or gloss) that is not there.
As noted above, in Yindjibarndi v FMG, the Tribunal stated at [17(b)] that "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" (emphasis added). In support of the principle, the Tribunal cited Silver v Northern Territory, which contains a statement to the same effect at [91]. Silver v Northern Territory, in turn, cited Western Australia v McHenry (unreported, National Native Title Tribunal, Franklyn DP, WO98/125, 28 July 1999). None of those cases contained a detailed discussion of the issue whether a native title holder must explain the particular significance of the site. It may be that all those cases were saying in the relevant paragraphs was that the evidence of the native title holders needed to go beyond mere assertion. If that is all they were saying, I do not see any difficulty with those statements. However, if they were saying that the evidence of the native title holders needed to be of a certain character (namely, an explanation of why the site was of particular significance), then I consider that to involve a misconstruction of the Act, for the reasons given above.
I note that, in para 43 of the Northern Territory's written submissions, it refers to Cheinmora at 34-35 (quoted at [23] above), where Carr J stated that the word "particular" qualified the word "significance", so that the site must be of special or more than ordinary significance to the native title holders in accordance with their traditions. The Northern Territory then submits that, in Little v Western Australia [2001] FCA 1706 at [78]-[79], RD Nicholson J held that, in light of this requirement, it was necessary for the native title party to explain the significance of the site, so that there was evidence of the "nature of the sacredness" of the area before the Tribunal can assess the likelihood of a real risk of interference. However, [78]-[79] of the judgment in that case do not refer to Cheinmora and do not contain a statement that the native title holders must explain the particular significance of the site.
For these reasons, I consider that the Tribunal erred (by adopting a wrong approach) in its consideration of whether the Ambulya site was a site of particular significance. That error of approach is likely to have informed the Tribunal's consideration of whether the other sites were of particular significance (even though the Tribunal did not refer expressly to the need for explanatory evidence in all cases).
Insofar as the Northern Territory submits that any error was not material by reason of the last sentence of [92], I do not accept that submission. That paragraph is located near the end of the section of the Tribunal's reasons dealing with the likely interference issue. The last sentence of [92] reads:
I would also remark that this approach would apply to the other places put forward by Top End that I have not found are places of particular significance given the precision of their described location.
I consider that sentence to be no more than a passing remark. It does not constitute a considered, alternative basis for the Tribunal's conclusion that the expedited procedure applies to the future act or acts relating to the relevant sites.
For these reasons, I conclude that ground 2 is made out.
[16]
Grounds 3, 4 and 5
In light of the above conclusion, it is unnecessary to deal with grounds 3, 4 and 5, which provide alternative bases to challenge the Tribunal's findings that the relevant sites were not of particular significance for the purposes of s 237(b). However, I make the following observations about ground 5.
By ground 5, Top End contends that the Tribunal was incorrect to say (in [52]) that its view (that the evidence was insufficient to enable a finding of particular significance) was similar to that reached in Top End v Gempart at [28]-[29]. Top End's contention appears to be correct. In Top End v Gempart, the Tribunal stated at [29] (in relation to the Muynmin sites):
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.
(Emphasis added.)
Thus, the Tribunal in the present case appears to have misapprehended the finding in Top End v Gempart at [29].
[17]
Ground 1
Ground 1 is concerned with the part of the Tribunal's reasons dealing with the likely interference issue. That part of the reasons related to the Beauty Plain site and the Binda site complex, which the Tribunal had earlier determined were sites of particular significance for the purposes of s 237(b).
By ground 1, which relates to question of law 1, Top End contends that the Tribunal erred in deciding that interference is not likely for the purposes of s 237(b) because, according to the Tribunal, interference "will generally involve physical intervention", and a "presumption of regularity" can be accepted to the effect that the grantee will not enter an area or site of particular significance on the supposition that the grantee will comply with applicable legislation relating to sacred sites and conditions of the exploration licence.
I will start by considering the aspect of this ground that concerns the "presumption of regularity".
Top End submits that the Tribunal's reasoning follows a line of Tribunal decisions invoking a so-called "presumption of regularity" that, in the absence of evidence to the contrary, both the government and a grantee party will act lawfully and, on that basis, laws regulating activities under a future act are relevant to assessing whether interference is likely: see the review of decisions in Murray v Western Australia [2011] NNTTA 91; 257 FLR 450 (Murray v Western Australia) at [27]-[30], [46] per Sumner DP. Top End notes that the words "presumption of regularity" are said to have a "special meaning" in the Tribunal's determinations (Murray v Western Australia at [54]), and this is presumably something other than the presumption of law in the maxim omnia praesumuntur rite esse acta that assumes "that that is in order which appears to be in order" (Morris v Kanssen [1946] AC 459 at 475 per Lord Simonds) so the fulfilment of conditions necessary to the (past) exercise of power may be presumed (Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 per McHugh JA).
Top End submits, in summary, that:
the presumption is not supported by authority; in Ward v Western Australia, Carr J held that the Tribunal did not err by taking into account the effectiveness of the Aboriginal Heritage Act 1972 (WA) and the likelihood of compliance when making a factual assessment of likely interference; his Honour did not, however, speak of any "presumption"; later authority affirms that the existence of a statutory protective regime is not conclusive (presumptive) of whether interference is likely;
the notion was rejected by Lee J in Western Australia v Ward (1996) 70 FCR 265 (Ward Lee J) at 276;
the Native Title Act accords to laws that protect sites of significance a different role as part of the standards for when future acts can occur - see ss 24JAA(1)(e), 24KA(1)(d), 24MB(1)(c), 39(3) and 43A(7); thus, the mere existence of such a law is not of itself a reason to presume that the expedited procedure applies to a future act; the Sacred Sites Act does not stipulate norms of conduct that avoid interference with sacred sites but instead provides an offence for entry or works to which the existence of an authority certificate is a defence (ss 33-34); avoidance can only occur on issue of an authority certificate upon AAPA being satisfied that works can proceed without substantive risk of interference or that an agreement has been reached with the site custodians (s 22); that offers a reason why the expedited procedure ought not apply as that can only be secured in the normal negotiation procedure (see ss 27B, 31(1), 38(1A));
the Tribunal's approach presumes that compliance with a law that is capable of protecting sacred sites will avoid interference, in accordance with the traditions of native title holders; but, as noted, in the case of the Sacred Sites Act, that can only be avoided by issue of an authority certificate (s 22); that course is not mandated by the proposed licence conditions in the present case; nor was there evidence that the grantee party would seek an authority certificate that could be capable of supporting a conclusion that interference was not likely by reason of that law;
Smith v Western Australia at [23] (set out above) holds that the Native Title Act's protection of native title, of which the right to negotiate is an element, "is not to be construed narrowly" and that s 237 "requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference … of the kind contemplated by s 237" (emphasis added); it is essential that there be material before the Tribunal that warrants an affirmative conclusion that interference is not likely, in accordance with the native title holders' traditions, being the norm s 237(b) prescribes; the Tribunal's invocation of this "presumption" caused it not to undertake that task.
The Northern Territory submits, first, that Top End's ground is contrary to its position before the Tribunal, on the basis that Top End's statement of contentions in the proceeding before the Tribunal included:
The relevant principles in relation to s 237(b) can be summarised as follows:
…
f. the Tribunal is entitled to give regard and considerable weight to the government party's Aboriginal heritage protection regime, however this does not mean that it will be considered to make interference unlikely under s 237(b) on all occasions.
However, in my opinion, that proposition is different from the ground that is now advanced in this Court. Top End's statement of contentions in the proceeding before the Tribunal did not endorse the existence of a presumption that the government and grantee party would act lawfully, which is a distinct proposition to the proposition that the Aboriginal heritage protection regime is a relevant and weighty consideration. I therefore do not accept that ground 1 is contrary to the position adopted by Top End before the Tribunal.
The Northern Territory further submits that the burden of Top End's argument appears to be that the Tribunal applied this "presumption" and then ignored evidence of native title holders about whether interference was likely in accordance with their traditions. The Northern Territory submits that that is not correct, and that the Tribunal adopted an evidence specific inquiry: see the Baudin Tribunal Reasons at [35], [44]-[45], [73]-[92].
The Northern Territory submits that the Tribunal did not proceed from any uncritical or conclusive presumption that Baudin would comply with that regulatory regime; in assessing the likelihood of that compliance as a matter of fact, it did no more than start from the "not unreasonable premise" (Parker v Western Australia at [69] per Tamberlin J) that Baudin would be expected to comply with its legal obligations: see the Baudin Tribunal Reasons at [86], [91]. The Northern Territory submits that the words "presumption of regularity" have a "special meaning" in the Tribunal's determinations under the right to negotiate provisions, and refer not to a "legal presumption but an approach to the facts which is appropriate on the evidence" (Murray v Western Australia at [53]-[54]; see also [34]-[52]); it is part of the "common-sense, logical approach used by the Tribunal in … predicting the future conduct of a grantee party" (Mungarlu Ngurrarankatja (Aboriginal Corporation) RNTBC v FMG Pilbara Pty Ltd [2015] NNTTA 4; 303 FLR 350 at [74] per McNamara M).
The Northern Territory submits that, in this case, the Tribunal did not apply the "presumption" in any determinative way, but conducted a predictive assessment based on the evidence.
In my opinion, notwithstanding the explanation in Murray v Western Australia at [53] that the "presumption of regularity" as used in this context is "not a legal presumption but an approach to the facts", the expression is apt to confuse and is best avoided. The difficulty with the expression is that it may suggest that there is a legal presumption that the grantee party will comply with its obligations under protective regimes or licence conditions, and that the native title party bears an onus to disprove that presumption. However, the adoption of such a presumption and such an onus is not supported by the legislative provisions and is contrary to basic principles in this area: see Ward v Western Australia at 216-218 per Carr J.
The real issue in the present case is whether the Tribunal adopted a legal presumption/onus approach (and thus fell into error) or whether it simply used the expression as a shorthand reference for an approach to the facts as part of a predictive assessment of whether there was a real chance or risk of interference.
The key relevant part of the Baudin Tribunal Reasons is at [74]-[92], where the Tribunal considered the issue of likely interference in relation to the Binda site. The Tribunal stated, at [76], that the regulatory environment of the Northern Territory was a "key consideration" and listed the main relevant statutes. The Tribunal also noted, at [77], that the Northern Territory was set to impose conditions on the proposed grants. The Tribunal referred, at [78], to the definition of "sacred site" under the regulatory regime. The Tribunal stated, at [79], that all sacred sites are protected by the Sacred Sites Act, which makes it an offence to enter onto a sacred site except in performing a function of or in accordance with the Act. The Tribunal also noted that the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) makes it an offence to enter onto a sacred site unless acting in accordance with an Act of the Territory. The Tribunal explained, at [80], that the Sacred Sites Act creates a Register of Sacred Sites onto which sites can be placed following an application and registration process, and that one of the effects of registration is that if a site has been placed on the Register this shall be accepted as prima facie evidence that the area is a sacred site. The Tribunal then discussed a distinction between registered and recorded sacred sites, a recorded sacred site being one that is known to the AAPA but has not been placed on the Register due to further work being required or due to the wishes of the custodians. The Tribunal stated, at [82], that the Binda site corresponded to a recorded sacred site as shown on the AAPA abstract; the AAPA abstract also showed that most of the area surrounding the Binda site had previously been subject to Authority Certificates to conduct works. The Tribunal explained, at [83], that an Authority Certificate is the mechanism provided by the Sacred Sites Act whereby a proponent may apply to the AAPA for authority to conduct activity, which is to be done in accordance with the conditions of the Authority Certificate. The Tribunal stated, at [84], that the AAPA Abstract showed that, as part of these previous Authority Certificates, the applicants were subject to restricted work areas in the area surrounding the Binda site (but the Tribunal was unaware of what the restrictions were).
The Tribunal stated, at [85], that, as an "additional layer", the Territory proposed to impose conditions on the grant of the proposed licences. (I take the reference to an "additional layer" to be to an additional layer of protection of the Binda site. This indicates an implied finding that the regulatory regime discussed in the earlier paragraphs, under which the Binda site was a recorded sacred site, provided a measure of protection.) The Tribunal noted that, under those conditions, in relation to exploration activities (but not reconnaissance) Baudin was required to have regard to the representations, but it was not required to adopt them. The Tribunal stated that, should the representations reveal the existence and/or location of sacred sites that may not be registered or recorded, Baudin would be required to comply with the prohibition of entry contained within the Sacred Sites Act.
The Tribunal stated at [86]-[87] (which have been set out above, but are reproduced here for ease of reference):
[86] Both the Territory and Baudin contend that the expedited procedure should apply by virtue of the statutory and regulatory environment. Additionally, both the Territory and Baudin contend that the presumption of regularity applies. In accordance with this, both the Territory and Baudin will not act in a manner contrary to this statutory and regulatory environment and in Baudin's case, the conditions imposed. I accept the presumption of regularity applies.
[87] In keeping with this, Baudin contends it understands its legal obligations and notes the requirement for contractor training on sacred site management in any mine management plan prior to ground disturbing activity per the Mining Management Act. As such, Baudin contends that any places found to be of particular significance in this matter are not likely to be interfered with due to the statutory and regulatory environment, the conditions to be applied by the Territory and because the location of any places of particular significance is known and can therefore be avoided in compliance with statute, namely the Sacred Sites Act.
(Emphasis added.)
The Tribunal noted, at [87], Top End's contention that the statutory regime did not provide proactive protection and could not be relied upon if the grantee party is not aware of the boundaries of a sacred site. The Tribunal noted Top End's contentions that Baudin could not know the boundaries of a place of particular significance without the participation of the Traditional Owners, and that the accuracy of recorded sites provided in the AAPA abstract could not be guaranteed and was subject to change. The Tribunal noted, at [89], Top End's contention that the Authority Certificates were for previous works and therefore the restrictions in them would not offer current protection. At [90], the Tribunal stated that it was correct to say that the previous Authority Certificates and exclusion zones did not provide ongoing protection. The Tribunal stated that while it was correct to say that Baudin was not required to apply for a new Authority Certificate, it would seem wise for it to do so. The Tribunal also stated that it agreed with a submission by Top End that the location of the recorded sites provided in the AAPA abstract "perhaps shouldn't be relied upon with any great confidence in the absence of further information".
The Tribunal concluded its reasoning in relation to the Binda site at [91]-[92], stating:
[91] In this instance, however, I am satisfied that the Binda site has been described with sufficient precision by the native title party which, when used alongside the AAPA abstract, allow the location and the elements of the Binda site to be readily discernible and thereby avoided. Having accepted the presumption of regularity and given simple entry onto such a place is an offence, I accept that Baudin is unlikely to enter onto the Binda site. Given the previous Authority Certificates and restricted work areas, I would also consider that Baudin is effectively on notice in relation to this site, further containing the risk of interference.
[92] Given these factors, I do not find that the Binda site is likely to be subject to interference. This finding is not dissimilar to that of Member Shurven in Top End v Baudin at [83], although in this case the certainty of location is provided through description rather than fencing. …
(Emphasis added.)
In my view, considering the Tribunal's reasons at [74]-[92] as a whole, the Tribunal used the expression "presumption of regularity" as a shorthand expression for an approach to the facts rather than as a legal presumption (with an onus shifting to the native title party). I note, in particular, [87] of the Tribunal's reasons, in which the Tribunal stated "[i]n keeping with this, Baudin contends it understands its legal obligations and notes the requirement for contractor training on sacred site management in any mine management plan prior to ground disturbing activity per the Mining Management Act". If the Tribunal had simply presumed that Baudin would comply with its legal obligations, there would have been no need to refer to that contention and that requirement. Further, the Tribunal, at [88]-[90], outlined and dealt with contentions made by Top End regarding the level of protection provided by the statutory regime in relation to the Binda site. In those paragraphs, the Tribunal engaged with the practical operation of the regulatory regime in a way that suggests that the Tribunal was not simply presuming that Baudin would comply with its legal obligations. For these reasons, I conclude that the Tribunal used the expression "presumption of regularity" merely as a shorthand expression to describe an approach to the facts as part of a predictive assessment of whether there was a real chance or risk of interference. In light of this, I am not satisfied that the Tribunal erred by adopting a misconstruction of the Act or a wrong approach.
I now turn to the other aspect of ground 1, namely Top End's contention based on the Tribunal's statement (at [72]) that interference "will generally involve physical intervention". Top End also challenges the Tribunal's statement, at [93], in relation to the Beauty Plain site, that it must be shown how the site would be "directly and physically affected" by exploration activities including offsite activities.
Insofar as the Tribunal stated that interference "will generally involve physical intervention", I do not see that there is any legal error in that statement; it is qualified by the word "generally". The Tribunal was not stating, as an absolute proposition, that interference must involve physical intervention. I do not see a difficulty with the proposition that interference will generally involve physical intervention. In oral submissions, in response to a question as to what were some examples of interference that was not physical, senior counsel for Top End referred to entry into a site without asking the right people. However, I would see this as an example of physical intervention (namely, entry into the site). The proposition that interference will generally involve physical intervention relates to the acts to be carried out by the grantee. It is not saying that the harm needs to be physical; it could be spiritual. Thus, I am not persuaded that there is any difficulty with the proposition that interference will generally involve physical intervention.
Insofar as the Tribunal stated that it was necessary to show how the Beauty Plain site would be "directly and physically affected", the Tribunal's statement needs to be read in a context where it had found that the site was outside of the proposed tenements. In that context, the Tribunal cited Silver v Northern Territory at [89] in support of the proposition that it was necessary to show that the site was directly and physically affected. In that paragraph of Silver v Northern Territory, the Tribunal stated:
The native title party also contended that the areas or sites do not have to be in the proposed tenement area. This contention is soundly based, however, as the Government party highlights, if an area or site of particular significance is not located on the proposed tenement, then if par (b) is being relied upon by an objector, that objector should demonstrate how that area or site will be directly and physically affected by exploration activities. Those exploration activities could be either on or off-site, but obviously if they are off-site then the objector would need to demonstrate that those activities are in fact an integral part of the activities on-site (for example, construction of roads, truck movements to and from the proposed tenement etc).
The substance of that paragraph was adopted in Yindjibarndi v FMG at [17(d)].
I infer that the Tribunal in the present case intended to adopt the whole of the reasoning in Silver v Northern Territory at [89]. On this basis, the relevant propositions are more extensive and more nuanced than those that appear in the Tribunal's reasons in the present case. There is an acceptance that, for the purposes of s 237, areas or sites do not have to be in the proposed tenement area. However, where the relevant site is located outside of the proposed tenement, the objector "should demonstrate how that area or site will be directly and physically affected by exploration activities". I would read this as a general proposition, rather than an absolute rule. Although not expressed in the same way, I think it likely that the Tribunal in the present case intended to follow the principles as expressed in Silver v Northern Territory at [89]. On this basis, I am not satisfied that the Tribunal fell into error.
For these reasons, ground 1 is not made out.
[18]
Background facts
The background facts set out below are drawn from the Daly Waters Tribunal Reasons. While the Tribunal decision related to two exploration licences (EL32919 and EL32920), by its amended notice of appeal Top End has narrowed its appeal to only one of those exploration licences (EL32920). Accordingly, I will only set out background facts relating to that exploration licence.
On 1 December 2021, the Northern Territory gave notice under s 29 of the Native Title Act of its intention to grant exploration licence EL32920 to Cedar Resources Pty Ltd (Cedar Resources). The notice for the proposed licence included a statement that the Territory considered the grant to be an act attracting the expedited procedure. During the course of the proceeding before the Tribunal, the Northern Territory advised that the holder of the proposed licence changed from Cedar Resources to Daly Tenements.
EL32920 is approximately 819 km² in size and is situated approximately 80 km in a northerly direction from Elliot. This licence overlaps the Shenandoah Pastoral Lease native title determination, the Beetaloo Pastoral Lease native title determination and the Kalala Pastoral Lease native title determination.
Top End is the registered native title body corporate for each of the native title groups relating to the determinations referred to above. In this capacity, Top End lodged objections with the Tribunal against the Northern Territory's contention that the expedited procedure applied to the grant of the proposed licence.
The proposed licence is an exploration licence, a type of licence outlined in Pt 3, Div 1 of the Mineral Titles Act. The licence applied for in this instance is for a term of six years.
The underlying land tenure is pastoral lease. EL32920 overlaps the Shenandoah, Beetaloo and Kalala pastoral leases.
The material provided by the Northern Territory to the Tribunal included information provided with the tenement applications, such as information on the proposed work program. Initially, Cedar Resources described itself as a company seeking to explore and develop battery metals, uranium and base metals. Given the affirmation provided by Daly Tenements via an affidavit of Ms Holly Edgar, the Tribunal assumed that exploration would be for any or all of these things.
In terms of the work program, in year one the grantee party intends to collate and review existing data and conduct research to identify gaps in data sets, before examining historic cores from this and adjacent tenure in the Northern Territory Geological Survey core library in Darwin for analysis. The grantee party also intends to sample and analyse groundwater from bores once historic data is reviewed.
In year two, the grantee party plans to undertake a regional geophysical survey, as guided by the studies undertaken in the first year. Following this, a drilling program is anticipated to be undertaken, as guided by the results of the activities conducted in years one and two.
The Territory provided a copy of the AAPA abstract for the area of the proposed lease. The AAPA abstract shows that the area of the proposed licence contains three recorded sacred sites. The AAPA abstract also shows that much of the proposed lease was covered by previous Authority Certificates.
Top End identified three sites as being of particular significance within EL 32920. These were (see the Tribunal's reasons at [54]):
Bamarrnganja Waterhole;
Kitiburu; and
Warrbani.
[19]
General matters
The Tribunal described various procedural matters at [10]-[21] of its reasons. The Tribunal noted that all parties agreed to the matters being determined on the papers (that is, without the need for a hearing).
At [32], the Tribunal noted that, on 4 July 2022, the Northern Territory wrote to the Tribunal to advise that the proposed licence had changed ownership following the registration of a transfer of title from Cedar Resources to Daly Tenements, which took effect on 29 June 2022. This raised questions regarding the validity of the notice. That issue was discussed by the Tribunal at [32]-[35]. The Tribunal concluded at [35] that the transfer of the proposed licence had no impact on the validity of the s 29 notice or the ability of the Tribunal to conduct the inquiry.
The Tribunal indicated the principles that it would apply at [38]:
In conducting this inquiry, I must look at what is likely to result from the grant of the licences and decide whether there is a real chance or risk of interference or disturbance as outlined in s 237 of the Native Title Act and therefore, whether they are acts that attract the expedited procedure (Smith v Western Australia [[2001] FCA 19; 108 FCR 442] at [23]). The legal principles are summarised in Yindjibarndi v FMG at [15] - [21].
[20]
Section 237(a)
The Tribunal considered s 237(a) at [39]-[52]. The Tribunal concluded that it did not find that the grant of the proposed licence was likely to directly interfere with the community or social activities of the native title party. There is no issue on appeal relating to this section of the Tribunal's reasons.
[21]
Section 237(b)
The Tribunal then considered s 237(b). The Tribunal indicated the principles it would apply at [53]:
For an area or site to be regarded as being of particular significance for the purposes of s 237(b) of the Native Title Act, it must be of special or more than ordinary significance to the native title holders in accordance with their traditions. It must be known, able to be located and for its significance to be explained to the Tribunal (see Yindjibarndi v FMG [17] and cases cited therein). …
(Emphasis added.)
The Tribunal considered each of the sites identified by Top End.
[22]
Bamarrnganja Waterhole
The Tribunal considered this site at [56]-[60], concluding that it was not a site of particular significance for the purposes of s 237(b). The Tribunal reasoned as follows:
[56] As detailed in the statement from Mr Jackson, Bamarrnganja Waterhole is located within EL32920 and gives directions on how to travel to the locality by reference to surrounding landmarks. This provides significant certainty as to the location of the site.
[57] In addition to this, mapping provided in Annexure 1 of the Jackson statement and topographic mapping provided by the Territory identify a 'Barmaranja Waterhole' in the northeastern portion of EL32920. I am satisfied this is the same site and location of the site described by Mr Jackson. This also looks to match or overlap a recorded sacred site labelled C2010/234 in the AAPA abstract. Having reviewed the material before me, I am also satisfied that this recorded sacred site is the Bamarrnganja Waterhole described by Mr Jackson.
[58] Mr Jackson explains that the site possesses the same name as the broader area that a dreaming traverses, that it's the main waterhole and that there was ceremony there. Mr Jackson further states that Bamarrnganja Waterhole is the main place for the Goanna dreaming and there is a song cycle sung at initiation ceremonies, although this is not further explained and from the description, it seems this is a general practice rather than one specific to this site. Mr Jackson also notes there are stone tools at the waterhole as well as red, yellow and white ochre and that children can attend the site for the passing on of knowledge.
[59] The Territory contend that the fact a dreaming may have passed through a site or that a site is associated with a dreaming is not sufficient to establish that it is a site of particular significance. In effect, the Territory argues that insufficient evidence has been provided, notably that Mr Jackson does not describe, by reference to songs, traditions or ceremonies, that it is a place of more than ordinary significance.
[60] It is clear that Bamarrnganja is a place of significance, with a number of cultural attributes that converge on the site. While this might be the case, it is my view that while the evidence names these factors and provides a baseline of evidence to its significance, it does not then go further to explain how or why Bamarrnganja is of particular significance with sufficient detail. Given this, I am of the view there is insufficient evidence and do not find Bamarrnganja is a place of particular significance.
(Emphasis added.)
[23]
Kitiburu Site
The Tribunal considered this site at [61]-[65], concluding that it was not a site of particular significance for the purposes of s 237(b). The Tribunal reasoned as follows:
[61] Mr Jackson provides that, also within EL32920, there is a sacred site called Kitiburu, which is about 15-20 km west of Bamarrnganja situated within the Kalala pastoral lease but close to the boundary with Shenandoah pastoral lease. Mr Jackson explains that there are large sinkholes in that particular area and that Kitiburu is a sinkhole site.
[62] The mapping at Annexure 1 of Mr Jackson's statement shows a sinkhole marked in the approximate position described by Mr Jackson as does the topographic mapping provided by the Territory. This also looks to match one of the recorded sacred sites on the AAPA abstract. Given these sources, I am satisfied of the location and that the site described by Mr Jackson corresponds to the recorded sacred site indicated on the AAPA abstract.
[63] Mr Jackson describes this place as a sacred site where the Goanna went from Bamarrnganja to Kitiburu, where it dug around Kitiburu to make the sinkholes and to bury itself there.
[64] The Territory again contends that the fact a site is associated with a dreaming is not sufficient to establish that it is a site of particular significance. While the Territory states that it does accept that Kitiburu may be of significance to Mr Jackson, it contends the evidence does not describe how Kitiburu is of special or more than ordinary significance to the native title holders.
[65] Having examined the materials before me, it is my view the evidence provided is insufficient. As before, some information on the attributes of the site is provided and it is clear that the site is of some significance. Section 237(b) however, is concerned with particular significance. As such, evidence provided must also explain why and how a place is of particular significance, which [in] this case, it has not. As such, I do not find Kitiburu is a place is of particular significance for the purposes of s 237(b).
(Bold emphasis added.)
[24]
Warrbani Site
The Tribunal considered this site at [66]-[70], concluding that it was not a site of particular significance for the purposes of s 237(b). The Tribunal reasoned as follows:
[66] Mr Jackson also identifies a site named Warrbani which he describes as being located only a few kilometres to the north of Bamarrnganja waterhole. In a similar fashion to previously described, Annexure 1 of the Jackson statement and the topographic mapping provided by the Territory show a site called Warramban Waterhole located approximately 2.5 km to the north-north-east of Barmaranja Waterhole inside the north-eastern boundary of EL32920, which I am satisfied is this same place. Additionally, this location corresponds to a recorded sacred site shown in the AAPA abstract which I am also satisfied is Warrbani.
[67] Mr Jackson provides that there are sinkholes and a cave at this place and that it is a dangerous place to camp at night as it is sacred ground. [Mr Jackson's] evidence goes no further as he states that because it is sacred ground, he is unable to talk about it.
[68] The main contention of the Territory in response is that there is insufficient evidence to make a finding it is of particular significance. In reply, Top End contend the significance of Warrbani is evidenced by Mr Jackson's statements on the laws and customs relating to the site, including restrictions on visiting the site except where and the consequences when, those laws and customs are not followed.
[69] Top End further notes Mr Jackson's statement that he cannot speak about the site in the context of evidence and submits that sharing details about the site would be inappropriate [under] the traditional laws and customs of the native title holders. In the context of inquiries such as this, it is not unusual for there to be concerns surrounding the disclosure of culturally sensitive evidence. I do note however that the Tribunal has systems and processes such as non-disclosure directions to cater for concerns such as these.
[70] This type of situation was addressed in Ward v Western Australia at [26], and I adopt the approach set out therein. In light of this, it is my view that insufficient evidence has been provided to satisfy the requirements of s 237(b). Accordingly, I do not find the Warrbani site is a place of particular significance.
(Emphasis added.)
I note that, unlike the reasoning for the previous two sites, the reasoning in respect of this site does not refer to the absence of an "explanation" of the significance of the site. In relation to the Tribunal's reference to Western Australia v Ward at [26], see [49] above.
[25]
Likely interference issue
The Tribunal stated at [71] that, given it had not found there to be a place of particular significance within the area of the proposed licence, the Tribunal found that the grant of the proposed licence was not likely to cause interference under s 237(b).
[26]
Section 237(c)
At [72], the Tribunal stated that Top End made no contentions in relation to s 237(c). As such, there was no material before the Tribunal in regard to that criteria. The Tribunal stated that, applying the approach outlined in Ward v Western Australia at [26], the Tribunal found that the grant of the licence was not likely to cause interference or disturbance under s 237(c). Again, in relation to the Tribunal's reference to Western Australia v Ward at [26], see [49] above. There is no issue on appeal relating to this section of the Tribunal's reasons.
The Tribunal therefore concluded that the grant of exploration licence EL32920 to Daly Tenements was an act attracting the expedited procedure.
[27]
Consideration
In its amended notice of appeal, Top End relies on three questions of law and two grounds.
[28]
Ground 1
By this ground, which relates to questions of law 1 and 2, Top End contends that, in relation to the Bamarrnganja Waterhole, the Kitiburu Site and the Warrbani Site, the Tribunal erred in finding that those places were not of "particular significance" for the purposes of s 237(b) unless the native title holders provided some further "explanation" of their "particular significance". As noted above, this ground is essentially the same as ground 2 in the Baudin Proceeding.
The Tribunal's reasons in relation to the Bamarrnganja Waterhole in the Daly Waters matter are relevantly similar to its reasons in relation to the Ambulya site in the Baudin matter. The Tribunal's reasons in relation to the Bamarrnganja Waterhole have been set out above. They included:
[60] It is clear that Bamarrnganja is a place of significance, with a number of cultural attributes that converge on the site. While this might be the case, it is my view that while the evidence names these factors and provides a baseline of evidence to its significance, it does not then go further to explain how or why Bamarrnganja is of particular significance with sufficient detail. Given this, I am of the view there is insufficient evidence and do not find Bamarrnganja is a place of particular significance.
(Emphasis added.)
The parties' submissions in relation to this ground are essentially the same as their submissions for ground 2 in the Baudin Proceeding.
I consider that the reasoning set out above in relation to ground 2 in the Baudin Proceeding (see [67]-[86] above) is equally applicable to ground 1 in the Daly Waters Proceeding. While the wording of the reasons is not identical, it is quite similar. Given that similarity, I consider that the same reasoning applies.
I therefore conclude that ground 1 is made out.
[29]
Ground 2
In light of the conclusion I have reached in relation to ground 1, it is unnecessary to consider ground 2.
[30]
Conclusion
For the above reasons, I have reached the conclusions summarised at [12]-[13] above.
In each proceeding, I will make orders to the effect that: (a) the appeal be allowed; (b) the relevant determination or determinations of the Tribunal be set aside; and (c) the relevant application or applications be remitted to the Tribunal for determination according to law. No order for costs has been sought, therefore I will not make any order as to costs.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.
442
Top End (Default PBC/CLA) Aboriginal Corporation v Gempart (NT) Pty Ltd [2022] NNTTA 64
Ward v Western Australia (1996) 69 FCR 208
Western Australia v McHenry (unreported, National Native Title Tribunal, Franklyn DP, WO98/125, 28 July 1999)
Western Australia v Ward (1996) 70 FCR 265
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8