BW (deceased) and Others on behalf of Bunuba/Western Australia/Callum Baxter

The case of BW (deceased) and Others on behalf of Bunuba/Western Australia/Callum Baxter dealt with a dispute concerning the proposed grant of an exploration licence over native title land. The parties involved in the litigation were the Bunuba native title holders, the Western Australia government, and the proposed grantee, Callum Baxter. The dispute arose as the Bunuba sought to object to the proposed exploration activities under the expedited procedure of the Native Title Act 1993 (Cth). The Federal Court of Australia was tasked with determining whether the proposed exploration activities were likely to interfere directly with the carrying on of community or social activities, whether they would interfere with sites of particular significance, and whether they would cause major disturbance to the land or waters.

The legal issues before the court included the interpretation of the term “major disturbance” within the context of the expedited procedure of the Native Title Act 1993 (Cth). The court also had to consider the potential impacts of the proposed exploration activities on the native title holders' rights and interests, particularly in relation to the carrying on of community or social activities and the protection of sites of particular significance. Additionally, the court needed to assess the likelihood of major disturbance to the land or waters due to the proposed exploration activities.

In its decision, the court found that the proposed exploration activities were likely to interfere directly with the carrying on of community or social activities, as the exploration program involved significant geological mapping, soil geochemistry, and other activities that could potentially disturb the native title holders' land. The court also determined that the proposed activities would interfere with sites of particular significance, as several registered Aboriginal sites and other heritage places were located within or near the proposed exploration licence area. Furthermore, the court concluded that the proposed activities were likely to cause major disturbance to the land or waters, as the exploration program involved substantial geophysical and remote sensing surveying, which could have significant environmental impacts. Based on these findings, the court held that the expedited procedure was attracted.

The court's decision resulted in the proposed exploration licence being subject to additional conditions and endorsements to mitigate the potential impacts on the native title holders' rights and interests. These conditions and endorsements included requirements for obtaining prior written consent from the relevant minister, notifying pastoral or grazing lessees, and adhering to the provisions of the Aboriginal Heritage Act 1972 and the Environmental Protection Act 1986. The court's decision ensured that the proposed exploration activities would be conducted in a manner that balanced the interests of the native title holders with the economic benefits of the exploration.