FEDERAL COURT OF AUSTRALIA

Kokatha Uwankara (Part A) Native Title Claim v State of South Australia

[2013] FCA 856

THE COURT ORDERS THAT:

1.    Kelaray Pty Ltd cease to be a party to the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE ISSUE

1    This application for the determination of native title under s 61 of the Native Title Act 1993 (Cth) (the NT Act) was commenced on 18 June 2009.

2    It covers a substantial area of land north from the top of Spencer Gulf, and slightly to its east. Its eastern portion, until recent orders, was marked by the eastern boundary of Lake Torrens and extended westwards across Lake Torrens and further west, including beyond Woomera.

3    To the eastern side of this claim area is an area of land claimed, and in large measure acknowledged to be land of the Adnyamathanha People: Adnyamathanha No 1 Native Title Claim Group v State of South Australia (No 2) [2009] FCA 359. The Adnyamathanha People also claim native title over the Lake Torrens area: Adnyamathanha People Native Title Claim No 5, SAD 227 of 2012 (Adnyamathanha No 5 Native Title Claim).

4    Following the institution of this application, the usual processes of notification and the identification of parties to the application took place. Kelaray Pty Ltd (Kelaray) became a party to the application pursuant to s 84(3) on the basis that it is an entity that claims that its interests, in relation to the land or waters of the claim, may be affected by a determination in the proceeding. It duly gave the notification in writing to the Court in accordance with s 84(3)(b). That document, and the accompanying material, identified that Kelaray is the registered holder of Exploration Licence 4296 (EL 4296) issued pursuant to the Mining Act 1971 (SA) in respect of a portion of the claim area which is in the Lake Torrens area. It is now common ground that Kelaray holds that exploration licence as a joint venturer with Straits Exploration (Australia) Pty Ltd (Straits). Kelaray holds a 30% interest in that joint venture.

5    The application itself has now progressed in two separate streams. The first stream concerns the area which is the Lake Torrens area. That is because, as noted above, the Adnyamathanha No 5 Native Title Claim on behalf of the Adnyamathanha People, also claims native title rights and interests over the Lake Torrens section of the claim area. Section 68 of the NT Act makes it plain that there can be only one determination of native title for each area. As a consequence of that overlap of two apparently competing claims to have native title rights and interests recognised in the Lake Torrens area, and the way in which the balance of the claim area has progressed, the Court on 5 April 2013 ordered that the claim be separated into two separate claims by the line of the western boundary of the Lake Torrens area, so that that part of the claim area which is not on or occupied by Lake Torrens is now called Kokatha Uwankara (Part A) Native Title Claim and that part of the claim area which is occupied by Lake Torrens is called Kokatha Uwankara (Part B) (Lake Torrens) Native Title Claim. That enabled the Kokatha Uwankara (Part A) claim to proceed without having to confront issues arising from the overlapping Adnyamathanha No 5 Native Title Claim.

6    As is apparent from the above, the interest which Kelaray asserted first to establish its entitlement to be a party to this proceeding is an interest in Kokatha Uwankara (Part B) (Lake Torrens) claim area and not in the Kokatha Uwankara (Part A) claim area.

7    This decision concerns Kelaray’s status as a party to the Kokatha Uwankara (Part A) claim.

8    Negotiations between the applicant on behalf of the Kokatha Uwankara (Part A) claim group and the State have substantially progressed. They have reached the point where the proposed terms of a consent determination have been circulated by the State in December 2012, for the comments of other respondents.

9    On 12 March 2013, I directed that any respondent (other than the State) that does not consent to and wishes to oppose the proposed consent determination circulated by the State in December 2012 in respect of the area covered by the Kokatha Uwankara (Part A) claim do file and serve by 2 April 2013 a memorandum specifying clearly the reasons why that party does not consent to the proposed consent determination, and do file and serve by 30 June 2013 the material relied upon to establish the status it asserts as a respondent in relation to the claim area and the material it relies upon in its opposition to the proposed consent determination.

10    Kelaray, in anticipation of receiving the December 2012 proposed consent determination, raised with the State and then with the applicant a request that it be permitted to inspect a report of an anthropologist, Dr Scott Cain, and other material referred to or relied upon by Dr Cain in providing a report which had apparently been considered by the State in providing its input to the proposed consent determination. On 12 November 2012, it applied for discovery of that material. It is not presently necessary to decide the question of its entitlement to look at that report or the associated papers, but I note that the refusal to provide access to Kelaray for that material was, at least in part, because the report is said to have been prepared at the request of South Australian Native Title Services Ltd (previously Aboriginal Legal Rights Movement Inc), the native title representative body for South Australia under the NT Act, for a mediation and therefore was not available to be produced because of confidentiality given under the NT Act and possibly also by other agreement or circumstances which surround the mediation.

11    The applicant for its part then applied to have Kelaray removed as a party to the Kokatha Uwankara (Part A) claim. That is because EL 4296 is over the area now covered by the Kokatha Uwankara (Part B) (Lake Torrens) claim.

12    The present decision concerns Kelaray’s entitlement to participate further as a party in the processes which may lead to a consent determination of the area occupied by the Kokatha Uwankara (Part A) claim. The State supports the applicant’s position. It is agreed that that issue should be decided before Kelaray’s application for discovery referred to in the preceding paragraph is addressed. If it ceases to be a party, its application will fall away.

THE LAW

13    The relevant provisions of the NT Act are sub-ss 84(8) and (9) of the NT Act. They provide as follows:

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

     (ii)    the person’s interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

14    In Cheinmora v State of Western Australia [2013] FCA 727 Gilmour J at [8] said:

“Interests” for the purposes of s 84(9) bears the same meaning as “interests” for the purposes of s 84(5): Budby on behalf of the Barada Barna People v State of Queensland [2010] FCA 1017 at [12]. For the purpose of s 84(5), a sufficient interest need not be “proprietary or even legal or equitable in nature”, nonetheless it must be genuine; “not indirect, remote, or lacking substance”; capable of clear definition; and “be affected in a demonstrable way” by the determination in the proceedings: Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at 7-8 per Black CJ. A sufficient interest may be “that of a corporation whose activities may be curtailed or otherwise significantly affected by a determination:, but that does not extend to an interest in furthering the interests of the corporation’s members: Byron; Adnyamathanha People No 1 v South Australia (2003) 133 FCR 242; Budby.

There is no real dispute about the applicable principles, subject to the following issue.

15    Counsel for Kelaray noted that Byron Environmental Centre Inc v Arakwal People (1997) 78 FCR 1 (Byron) was decided in a context where a respondent party to an application under s 61 of the NT Act “could effectively veto the making by the Court of a consent determination”: see per Hely J in Wilson v Minister for Land and Water Conservation (NSW) (2003) 126 FCR 500 at [27]. It is certainly correct that in Byron both Black CJ at 7 and Merkel J at 31 made that point. The expression in Byron of the content of the “interests which may be affected” in sub-ss 84(3) and (5) was clearly influenced by that matter. For instance, Black CJ in Byron said at 7:

The nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) [now repealed and succeeded by s 84(3)(a)] and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance.

See also per Merkel J at 31-32 and 36-37.

16    On 15 April 2007, s 87A of the NT Act came into force: Native Title Amendment Act 2007 (Cth). It was then amended in some respects by the Native Title (Technical Amendments) Act 2007 (Cth) and by the Native Title Amendment Act 2009 (Cth). I shall call the two amendments in 2007 “the 2007 amendments” and the later amendments “the 2009 amendments”.

17    The contention of Kelaray is that a party who does not hold an “interest in relation to land or waters” within the defined meaning of s 253 of the NT Act in respect of the area that is to be subject to the consent determination no longer has the right of veto described by Black CJ and Merkel J in Byron, but has only a right to procedural fairness under s 87A(8). Hence, it is argued, the degree to which a person’s interests are to be affected in order to become a party has been lessened. The qualitative nature of that change is not fully expressed. It is accepted that the various descriptive words such as “not indirect”, “remote”, “lacking in substance”, “genuine” and the like used in Byron are still useful but, it is argued that in applying such words, the significant change must be kept in mind.

18    I do not think much, if anything, can be made of the history of s 87 or the introduction and history of s 87A to advance Kelaray’s position. In the first place, the directly applicable words in sub-ss 84(3), (5) and (9) for the joinder or removal of parties have changed only in the ways addressed below, and there is no reason why the amendments to ss 87 and 87A should be taken as intending to alter the clear meaning of those words as in force from time to time. Secondly, the removal of the veto entitlement of a respondent to an application does not itself signify that the test to determine whether an entity should become, or be removed as, a party to an application is intended to be changed. And thirdly, more as a corollary to the second reason, it is clear enough that the work intended by the amendments to s 87 and the introduction of and amendments to s 87A is achieved without requiring or suggesting the need for any substantive alteration of the test for a party to be, or remain as, a party to an application under s 61. Finally, it may be added, the expressions used in Byron seem equally appropriate now. It is difficult to think of any different and more confined expressions which might now otherwise be adopted.

19    It is necessary to explain in a little more detail the third proposition and the relevant legislative changes.

20    The relevant provisions are in Part 4 – Determinations of the Federal Court. Originally Division 1 – General of Part 4 included ss 80-87. Section 84 dealt with parties in briefer terms than it now does. The parties were those who were parties under the then s 68 which in turn referred relevantly to the then s 66(2)(a): a person holding a registered proprietary interest in any part of the claim area. In addition, the then s 84(2) permitted the Court to join a person whose “interests” are affected or may be affected by a determination. Section 87 dealt with the power of the Court if parties to an application reached agreement. It then included only sub-ss (1)-(3), as they presently stand.

21    The Native Title Amendment Act 1998 (Cth), introduced a new and brief Division 1 – Overview of Part comprising only s 79A. The previous Division 1 was broken into Divisions 1A, 1B and 1C dealing respectively with General (still including s 84), Reference to NNTT for Mediation, and Agreements and Unopposed Applications (ss 86F, 86G and 87). Section 87 was not changed.

22    At the same time, s 84 was amended so that certain persons were entitled to become parties under s 84(3), relevantly, persons holding a registered proprietary interest in any part of the claim area or persons whose “interests” may be affected by a determination, and who had given notice to the Court in the specified time. Sub-sections 84(5), (8) and (9) were introduced in their current terms, save that the words “and it is in the interests of justice to do so” were later added to s 84(5) by the 2007 amendments. The use of the term defined in s 253, “interests in relation to land or waters” of the claim area, was not then applicable to a non-native title person seeking to be or remain a respondent party.

23    By the 2007 amendments, s 87A was introduced, and s 87 remained materially unchanged. It is clear from its terms that s 87A made explicit that the Court had power to give effect to an agreement between the parties where the agreement related to part only of a determination area. It required the agreement of specified parties by sub-s (1)(c), including by subclause (v), each person who claims to hold “an interest in relation to land or waters” over the land the subject of the agreement and who is a party to the proceeding. That reflects the words in s 84(3)(a)(iii) as they were altered at the same time, changing “interests” to “interest in relation to land or waters”, so as to pick up the definition in s 253. By that amendment, it appears that the entitlement to become a party under s 84(3)(a)(iii) was confined but s 84(5) was left to allow wider “interests” to be recognised in the Court’s discretion. To the extent that s 84(3)(a)(iii) applied, the veto referred to was maintained. Notice was required to be given to other parties (presumably including parties with possibly wider “interests”): s 87A(3), and the Court was required to consider their objections: s 87A(8). It may be inferred that sub-ss 87A(3) and (8) recognise that the “interests” referred to in sub-ss 84(5) and (9) may be interests other than interests in relation to the land or waters of the claim. Of course, s 84(5) could also cover those with interests in relation to the land or waters of the claim area who had not given the notification required by s 84(3)(b).

24    The 2007 amendments therefore provided for two categories of persons with “interests” which may be affected by a determination to be able to become parties:

(1)    by s 84(3): those who have an interest in relation to land or waters in the claim area (as defined in s 253), and who give notice under s 84(3)(b); and

(2)    by s 84(5): those whose “interests” may be affected by a determination, where the word “interests” is not defined, but may include:

(i)    those who have an interest in relation to land or waters in the claim area, but did not give notice under s 84(3)(b);

(ii)    those who have a different (and probably lesser) interest or interests which may be affected by a determination.

Those in the second category are subject to the Court’s discretion as to whether they may be joined as parties. The removal of parties under s 84(8) is not in terms restricted, but informed by s 84(9) which imposes an obligation on the Court to consider removing a party in certain circumstances.

25    The 2009 amendments did not further amend s 84. They added sub-ss 87(4)-(11) and substituted a new sub-ss 87A(5)-(12) for the old sub-s 87A(5). Those amendments made it clear that the Court could make orders giving effect to the agreement of parties, extending beyond the recognition of native title rights and interests, and the procedures to be followed in doing so.

26    Whilst it is clear that Byron was decided when the relevant provisions did not include those made in 2007 and in 2009, there is no reason to doubt its relevance to the correct application of the present provisions. More importantly, the distinction appearing from the 2007 amendments to s 84 referred to above appears to have been influenced by the consideration in Byron of any difference in the use of the terms “interests” and “interest in land or waters” in s 84 as it then stood: see eg per Black CJ at 4-6.

27    Kelaray has defined its claimed interest in relation to the claim area in the following terms at [43]-[46] of its outline of submissions:

Kelaray’s interests arise from it being a holder of EL 4296 and its intention to conduct mining operations in respect of it, if economically viable. The substantive nature of those interests is demonstrated by both the potential size of the mineralisation within the tenement and the expenditure by both Kelaray and its joint venture partner.

If the mineralised rock currently identified within the tenement were economically viable, Kelaray would, as a matter of course, apply for a mining lease within the area of EL 4296 in order to conduct mining operations.

In the event that such a lease is sought and granted, there would be a need to seek further permissions in respect of the wider non-overlapping area, in that:

1.    Any viable mineral deposits within the tenement are geologically constrained to depths greater than 400m below the surface due to overlaying, unmineralised sedimentary rocks.

2.    Any mine will be an underground mining operation, rather than open-cut, as the presence of the lake surface restricts the practicality of an open-cut mine.

3.    In order to access ore at depths of greater than 400m, a decline (a sloping underground ramp) for vehicle and infrastructure access would be required.

4.    This decline must be constructed so that, starting from the mineralised rock, it proceeds on an angle to the surface. Given the depth of the mineralised rock, the opening of the decline (known as the decline portal) will be to the west of the lake margin. This would place part of the decline and the decline portal within the non-overlapping area that remains part of the present proceedings.

5.    In the event of such mining operations being conducted, it will be necessary to construct infrastructure in the vicinity of the decline portal to support the operation. This infrastructure would include a mineral processing plant, tailings facilities, accommodation, and potentially additional roads or at least an upgrade of existing tracks and roads.

6.    A mineral processing plant for the type of ore and scale of operation under consideration will be large. The smallest plant of the type described has a footprint of .35 square kilometres. The plant would comprise:

(a)    crushing and milling facilities to break the mined ore into small enough particles to allow for the liberation of economic minerals;

(b)    a flotation plant to separate heavier, economic minerals from gangue minerals;

(c)    thickeners for the dewatering of the mineral concentrate; and

(d)    if justified by feasibility study, a smelting plant for the production of metal from the concentrate.

7.    A tailings dam for an operation of this nature would also be necessarily large and would be located so as to mitigate against the potential for leakage into Lake Torrens. The smallest dam of the type described has a footprint of 1 square kilometre.

8.    Logistical facilities such as accommodation camps, laydown areas and roads would be extensive during the construction phase and comparatively modest during the operational phase.

9.    It is unlikely these facilities could be built to the east of the lake, as the proximity of the mineralised rock to the western edge of the lake makes it economically impracticable to build them on the other side.

A determination of native title over the non-overlapping area will require that Kelaray, in order to construct such facilities, will need to negotiate and/or commence proceedings with the registered native title holders. As such, its interests may be affected.

28    The significance of the present provisions in relation to the present claim area (which excludes the Lake Torrens area over part of which EL 4296 lies) is that Kelaray no longer has an “interest in relation to the land and waters” of this claim area. It could not now routinely qualify as a party to this claim under s 84(3)(a) and (b). Any such interest is confined to the Kokatha Uwankara (Part B) (Lake Torrens) claim. Any “interests” it has in the present claim area do not fall within the relevant definition in s 253.

29    Kelaray’s evidence shows that it has held exploration rights over part of the Lake Torrens area since 1998. There are “preliminary indications” of substantial mineral deposits with the area of EL 4296, and exploratory non-field based investigations are continuing in respect of the tenement. EL 4296 expires on 17 August 2013. Kelaray anticipates that it will be renewed. Depending on further investigations (in an unspecified time frame, but assuming EL 4296 is extended) and the identification more positively of mineralised rock within the scope of the exploration licence, it will be necessary to determine whether the tenement is “economically viable”. If that step is then affirmatively assessed, it is said that Kelaray (presumably with Straits) would apply for a mining lease over the same area of Lake Torrens.

30    Kelaray says that, because of the depth of any such mining and the nature of the surface of Lake Torrens, there would have to be an underground mine with a sloping underground access ramp (decline portal) from west of the western margin of Lake Torrens, and therefore commencing from the present claim area, with associated infrastructure around the decline portal occupying some 0.35 square kilometres. That would in any event, it accepts, require the grant of further licences under the Mining Act 1971 (SA) and/or other access arrangements over that area.

31    There is no preliminary feasibility study at present.

CONSIDERATION

32    It is not possible to say how close to the present claim area any possible mineralised rock will be found.

33    I think it is fair to say that the prospects of Kelaray and/or Straits wanting to extract proved or probable mineral resources from EL 4296 are somewhat speculative at present.

34    In my view, Kelaray should now be removed as a party to this application.

35    As explained, its relevant interest in the claim area has changed by reason of the orders made on 5 April 2013: cf James on behalf of the Martu People v State of Western Australia [2002] FCA 849 at [9]-[10]. Its primary interest under EL 4296 is not within the claim area. The interests which it says may be affected by the determination in this proceeding are, at best, in essence speculative. That is evident from the material it has adduced. It is not clear whether, or when, it will establish that there are sufficient proved or provable resources in EL 4296 to warrant it seeking to extract those resources by seeking a mining licence under the Mining Act 1971 (SA), and it is also somewhat speculative as to whether those resources when found will be able to be economically mined especially given the extent of EL 4296. The area of EL 4296 is about 295 sq kms, essentially within Lake Torrens and it is rectangular in shape measuring about 20 kms by 15 kms. Obviously, the economics of extracting minerals where, as is asserted, access to the minerals to be extracted will require a location not itself on Lake Torrens by a decline portal elsewhere will depend upon the distances to the mineralised rock to which the decline portal will be required to provide access. There has been no economic study made of the costs at all. EL 4296 has been in place since 1998, and is or is about to be probably renewed.

36    In the circumstances, I do not think that it is an entity whose interests may be affected by a determination in the present proceedings. As it became a party to the present proceedings in the circumstances referred to, that is, because of its interest under EL 4296 in the Lake Torrens area, in my view it is now an entity which no longer has interests that may be affected by a determination in the current claim. That adopts the words in s 84(9)(b). It is sufficient to warrant the order which I propose to make.

37    There are additional considerations which, as a matter of discretion, would in any event lead to the making of that order under s 84(8) in any event.

38    Kelaray’s concerns about the terms of the proposed consent determination are vague. The affidavit of Katie Bickford of 12 November 2012 says that Kelaray is “unable to be satisfied as to the description of the claim group”, and would “not be likely to consent” to the proposed determination. It has not put forward any positive evidence to support its concern, or suggested any alternative formulation of the claim group. It has not identified why the processes of the State to accept that the claim group as expressed in the proposed consent determination are inappropriate or inadequate. It has not explained why its concern is not apparently shared by Straits as the majority interest holder in EL 4296.

39    It has also referred to an affidavit of Mark McKenzie of 15 May 2012. That affidavit explains why Mr McKenzie was removed as one of the persons constituting the applicant for the present claim. His focus is on the recognition of the rights of Adnyamathanha People over the Lake Torrens area of the then claim area. Kelaray seeks to extrapolate from his position in relation to the Lake Torrens area the basis for its concern about the status of the claim group for the separate area which is now the subject of this claim. I am not satisfied that it is a proper use of his affidavit.

40    Kelaray has produced no evidence to suggest that it could, or would, or does dispute that native title rights and interests over the claim area did not exist at sovereignty, or that such rights as have not been extinguished no longer exist and should not be recognised or that the nature and extent of the rights and interests to be recognised in the proposed consent determination are too extensive. Its only concern, as expressed, is as to the description of the claim group.

41    Moreover, I note that Straits has expended some $7,000,000 in respect of EL 4296 since 2002. It has not expressed any concerns about the terms of the proposed consent determination. Kelaray has expended about $824,500 in respect of EL 4296 since 1998. No other mining interest, whether in respect of this claim area or the Lake Torrens area, has expressed any concerns about the terms of the proposed consent determination.

42    In addition, it is not clear how Kelaray’s prospects of securing access to the present claim area, if ultimately that becomes desirable, for the purposes of establishing infrastructure to provide decline portal access to the Lake Torrens area might be affected by the proposed consent determination. It has not identified any significant way in which that may be so. If, at some time in the future, it seeks such access, it is able to pursue that proposed access arrangement under the “future act” regime in Pt 2 Div 3 of the NT Act. That is a right which any putative miner may seek to exercise. It is not clear to me that, in that respect, any concern it may have as to whether the present proposed claim group is or is not the correct proposed claim group would make any difference to its interests because of the rights which exist under that regime, ultimately a right to arbitration under s 35 of the NT Act.

43    Consequently, even if it be assumed that Kelaray’s asserted “interests” would be sufficient to qualify it now to be joined as a party to this proceeding under s 84(5) of the NT Act (as it no longer has an interest in relation to the land or waters of the claim area), the Court’s power to permit it to be so joined under s 84(5) is qualified by the Court being satisfied that it is in the interests of justice to do so. The corollary is the apparently unfettered discretion in s 84(8) to order that a person cease to be a party to the proceedings, subject to s 84(9), which may equally be guided by the interests of justice. I would in any event exercise the discretion available under s 84(8) to remove Kelaray as a party to the proceeding because I think the interests of justice are best served, in the present circumstances, by such an order.

44    I have taken into account the extent to which Kelaray has been able to express its concern about the proposed consent determination. I have taken into account the consequences of permitting it to remain as a party to the proceeding to further explore that concern. The concern is not supported by any direct anthropological or other evidence to suggest that the claim group should be differently constituted. Nor is it supported by any evidence or even assertion that the claim group as differently constituted (presumably Kelaray in due course would be expected to identify who constitutes the correct claim group) would be in any different position in relation to Kelaray’s putative desire to seek access to part of this claim area for the purpose of establishing infrastructure to get access to, and establish, the decline portal as discussed above, bearing in mind the “future act” regime under the NT Act. It has not suggested that one claim group (its unspecified but presumably its proposed claim group) would negotiate in any different way from the present claim group or that any arbitrated outcome would be in any way different.

45    Equally importantly, the impact upon the present prospects of this claim resolving by the consent of the applicant, the State and by other respondent parties who had not indicated any concern about the terms of the proposed consent determination is a significant matter. If Kelaray remains a party for the purposes of procedural fairness, that would produce potentially a very much prolonged and expensive process, presumably commencing with Kelaray’s application for discovery referred to above, then time for it to consider that material if it is to be produced, and in any event time for it to investigate and procure any competing material which it wants to secure and advance, and possibly a hearing and determination as to the appropriate claim group. As against that, I note that Straits as the majority holder of EL 4296 does not apparently share the concerns of Kelaray. Not only has it the majority interest, but it has spent in excess of seven times the amount expended by Kelaray presently in exploring for minerals under EL 4296. I also bear in mind that none of the mining interests who have a direct interest in relation to the land or waters over the present claim area has signified any concern about the proposed consent determination including about the composition of the proposed claim group. They too, if they seek to get interests beyond their existing interests, will need to expand those interests through the “future act” regime under the NT Act.

46    I note that counsel in the course of submissions said that Kelaray had a suspicion that there may be no native title rights and interests in respect of the claim area, but that it had taken no steps of its own to explore its suspicion. There is no evidence to support the suspicion. The evidence in the affidavit of Abigail Steed of 4 July 2013 does not do so, and the evidence of Katie Bickford referred to above is limited in the way to which I have referred.

47    For those reasons, I order that Kelaray be removed as a party to this application.

Associate:

Dated:    30 August 2013