Coronet Resources Limited v Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC
[2025] NNTTA 3
•29 January 2025
NATIONAL NATIVE TITLE TRIBUNAL
Coronet Resources Limited & Anor v Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC [2025] NNTTA 3 (29 January 2025)
| Application No: | WF2024/0006, WF2024/0007 & WF2024/0008 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2004/001)
(native title party)
- and -
Coronet Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Member Glen Kelly |
Place: | Perth |
Date: | 29 January 2025 |
| Catchwords: | Native title – future act – s 35 application for determination – uncontested application – proposed grant of exploration licences – ancillary agreement executed by native title party and grantee party – terms of s 31 deed unable to be agreed – consideration of s 39 criteria – taking into account matters agreed by the parties – economic significance of exploration licences – public interest in maintaining a viable mining industry – proposed future act may be done |
| Legislation: | Mining Act 1978 (WA) ss 57, 61, 66 Native Title Act 1993 (Cth) ss 31, 35, 36, 38, 39, 151 |
| Cases: | Bradley Foster & Ors (Waanyi Peoples) v Copper Strike Ltd & Anor [2006] NNTTA 61 (Foster v Copper Strike) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85(Minister for Lands v Thalanyji) Neowarra v Western Australia [2004] FCA 1092 (‘Neowarra v Western Australia’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Coronet Resources Ltd and Another [2019] NNTTA 117 (‘Wanjina-Wunggurr v Coronet Resources 1’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Coronet Resources Ltd and Another [2020] NNTTA 55 (‘Wanjina-Wunggurr v Coronet Resources 2’) Western Australia v Roberta Vera Thomas & Ors (1996) 133 FLR 124; [1996] NNTTA 30 (Western Australia v Thomas) |
| Representatives of the native title party: | Ms Imogen Cox, Kimberley Land Council |
| Representative of the grantee party: | Mr Shota Hitomi, Lawton Macmaster Legal |
| Representatives of the Government party: | Mr Dennis Jacobs, Department of Energy, Mines, Industry Regulation & Safety Mr Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
This decision concerns an application made to the National Native Title Tribunal by Coronet Resources Limited seeking a future act determination that exploration licences E04/2606, E04/2607 and E04/2646 may be granted.
The licences are located as follows:
·E04/2606 is located in Western Australia’s Kimberley region, approximately 101 km east of Derby.
·E04/2607 is located in Western Australia’s Kimberley region, approximately 108 km east of Derby.
·E04/2646 is located in Western Australia’s Kimberley region, approximately 109 km east of Derby.
Wanjina-Wunggurr Aboriginal Corporation RNTBC holds native title in trust for the Wanjina-Wunggurr Wilinggin People over the whole of each licence area (see Neowarra v Western Australia).
In Wanjina-Wunggurr v Coronet Resources 1, Member Shurven determined that the expedited procedure did not apply to the grant of E04/2606 and E04/2607 and the parties were instead required to negotiate pursuant to s 31 of the Native Title Act 1993 (Cth). In Wanjina-Wunggurr v Coronet Resources 2, Member Cooley similarly determined that the expedited procedure did not apply to the grant of E04/2646 and the parties were instead required to negotiate pursuant to s 31 of the Native Title Act.
Section 31(1)(b) of the Native Title Act requires the parties to negotiate in good faith with a view to obtaining the agreement of the relevant native title party to the grant of the respective exploration licences. If, after six months, the parties are unable to agree, an application may be made to the Tribunal for a determination that the act of granting the licences may be done.
I must not make a determination on the application in this matter if a native title party satisfies me that the State or the relevant grantee party did not negotiate in good faith (s 36(2) Native Title Act). In this case, Wanjina-Wunggurr has made no allegation that the State or Coronet have failed to negotiate in good faith.
Coronet lodged the future act determination applications in accordance with statutory time frames and no s 31(1)(b) agreement has been made, the applications satisfy the requirements of s 35(1) of the Native Title Act. Following acceptance of the applications, I was directed by the President of the Tribunal to constitute the Tribunal for the purpose of holding an inquiry into the applications.
The applications of Coronet are unopposed. Having reviewed the materials before me and considered the matters set out in s 39 of the Native Title Act, I have determined the licences may be granted.
Issues for Determination
Section 38 of the Native Title Act provides that in determining these applications, I am required to make one of the following decisions:
a) the act must not be done;
b) the act may be done; or
c) the act may be done subject to conditions to be complied with by any of the parties.
Pursuant to s 37 of the Native Title Act, I must not make a determination if an agreement of the kind mentioned in s 31(1)(b) has been made, which in this case has not. Although in its application Coronet states that while a deed in compliance with s 31(1)(b) of the Native Title Act could not be agreed to between Wanjina-Wunggurr and the State, an ancillary agreement has been reached between Coronet and Wanjina-Wunggurr.
The matters that I must take into account in making a determination are those set out in s 39(1) of the Native Title Act. The Native Title Act does not specify the weight to be afforded to each matter listed in s 39, this will depend on the evidence placed before the Tribunal on each occasion (see Western Australia v Thomas [166]).
Under s 39(4) of the Native Title Act, I must take into account any relevant issues upon which the parties agree. Further, if all parties consent, I need not take into account the matters mentioned in s 39 to the extent they relate to agreed issues (see Foster v Copper Strike [27] - [33]).
In this case, Coronet and Wanjina-Wunggurr have reached an ancillary agreement which I have taken into account. This is examined further in the consideration of the s 39 criteria.
The Inquiry
At a preliminary conference, the parties confirmed that the application would be uncontested and that Wanjina-Wunggurr would not allege a lack of good faith on the part of Coronet or the State. Directions setting the timeline for the inquiry were subsequently issued.
The State provided information resources and lodged a joint submission with Coronet. Coronet and the State confirmed they agreed to a determination that the licences be granted and were content for the Tribunal to make the determination on the papers per s 151(2) of the Native Title Act.
Wanjina-Wunggurr also lodged contentions which neither gave their consent to nor opposed a determination by the Tribunal under s 38 of the Native Title Act.
Details of Licences
The licences are exploration licences to be granted under s 57 of the Mining Act 1978 (WA). Pursuant to s 61 of the Mining Act, exploration licences are granted for an initial term of five years and may be renewed. Section 66 of the Mining Act outlines the rights conferred on the holder of an exploration licence.
In Coronet’s work programs for each licence provided in the State materials, Coronet states that it is targeting lead, zinc and silver with consideration also to be given to the discovery of alluvial and lamproite hosted diamonds and details initial exploration budgets for each licence. The work programs includes a summary of three years’ activities and note that work activities are expected to be expanded and total exploration increased if initial results are positive and support the likelihood of a discovery to be made with economical potential.
Materials from the State show a large number of heritage sites in relation to each of the licences with E04/2646 in particular containing a high number of sites.
In Wanjina Wunggurr v Coronet 1 Member Shurven found the Napier Range, including the sites and areas within E04/2606 and E04/2607, burial sites and painting sites to be of particular significance in accordance with the traditions of Wanjina Wunggurr. Similarly in Wanjina Wunggurr v Coronet 2 Member Cooley also found the part of the Napier Range within E04/2646 to be of particular significance to Wanjina Wunggurr.
Consideration of Section 39 Criteria
a)Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
b)Effect on way of life, culture and traditions: s 39(1)(a)(ii)
c)Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
d)Effect on freedom of access to the land or waters and freedom to carry out rites, ceremonies or other activities of cultural significance in accordance with traditions: s 39(1)(a)(iv)
e)Effect on any area or site of particular significance: s 39(1)(a)(v)
f)Interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters affected by the licences: s 39(1)(b)
The State and Coronet submit that Coronet has reached an ancillary agreement with Wanjina Wunggurr regarding each of the matters set out in s 39(1)(a) and (b) to their mutual satisfaction. This is confirmed by Wanjina Wunggurr in their submission.
No express submission is provided by either party in regard to s 39(1)(a)(i)-(v), other than that the components of s 39(1)(a) have been taken into account and addressed in the ancillary agreement.
In relation to s 39(1)(b), the State and Coronet submit that the interests, proposals, opinions and wishes of Wanjina Wunggurr in relation to the management, use or control of the relevant land and waters have also been taken into account and addressed by Coronet in the ancillary agreement. This is also confirmed by Wanjina Wunggurr in their submission.
The State confirms its reliance on the statements of Coronet in their joint submission and submits that the Tribunal should take those statements into account and have no further regard to the matters set out in s 39(1) of the Native Title Act.
I have taken these submissions into account, and the fact that an ancillary agreement has been reached between the parties in satisfaction of s 39(1)(a)-(b) as I am required to by s 39(4) of the Native Title Act.
Economic or other significance of the licences: s 39(1)(c)
While the State and Coronet make a submission on s 39(1)(c), Wanjina Wunggurr do not. I therefore cannot assume there is agreement in regard to this component of s 39(1) and as such, am required to take into account the economic or other significance of the licences to Australia, the State, the area in which the licences are located and to the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the licences, rather than consideration of the significance of exploration or mining generally (see Western Australia v Thomas [175] - [176]).
While Wanjina Wunggurr is silent on these topics, Coronet submits that the grant of the licences is of economic significance to each area or group set out in s 39(1)(c). The State, as mentioned at [24], relies on Coronet’s statement and agrees with this being taken into account by the Tribunal.
While there is no specific evidence regarding any of the potential benefits arising from the grant of the licences before me, the Tribunal has often found the grant of mining tenure will be of economic benefit to the State, as well as local or regional areas. In doing so it is acknowledged that, in general, exploration activity will provide lesser benefit than productive mining but may result in productive mining at a future date (Western Australia v Thomas [175]).
It is possible that benefits may accrue to Wanjina Wunggurr through their ancillary agreement with Coronet, although I cannot make conclusive statements on this without understanding the content of the agreement. Nevertheless, Wanjina Wunggurr does not consent to or oppose a determination by the Tribunal that the acts may be done. Given my previous remarks on the ancillary agreement, the lack of opposing statements is taken in a positive light.
The material before me provides me with only a limited understanding of the economic or other benefits arising from the licences. Although this is the case, given these are exploration licences that are the subject of this determination and given the lack evidence to the contrary from Wanjina Wunggurr, I can accept they may be of at least some benefit to the local region, even if the wider State and national benefits are limited.
Public interest in the grant of the licences: s 39(1)(e)
Section 39(1)(e) requires me to take into account whether there is any public interest in the grant of the licences. Minister for Lands v Thalanyji at [266] provides useful commentary on this criteria.
Coronet submits that public interest supports the grant of the licences. The State relies on this statement and agrees it should be taken into account by the Tribunal while Wanjina Wunggurr makes no submission on this topic.
The Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry (see for example Western Australia v Thomas [176]). Although this determination relates only to three exploration licences, in the context of Western Australia v Thomas and given the absence of evidence to the contrary from Wanjina Wuggurr, I am satisfied there is general public interest in the grant of the licences in this case.
Any other matter the Tribunal considers relevant: s 39(1)(f)
There are no other matters that I consider relevant to my determination in this matter.
Should the licences be granted and, if so, should conditions be applied?
Having regard to my consideration of the matters in s 39, I am satisfied that the licences may be granted.
I have scrutinised the conditions and endorsements which the State proposes to impose on the grant of the licences and have taken these into account in making my decision. As no other condition is proposed by any party, I do not consider it is necessary to make my determination subject to any conditions to be complied with by any party.
Determination
I determine that the grant of exploration licences E04/2606, E04/2607 and E04/2646 to Coronet Resources Ltd may be done.
Mr Glen Kelly
Member
29 January 2025
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