Elderberry Resources Pty Ltd v Bunuba Dawangarri Aboriginal Corporation RNTBC
[2025] NNTTA 14
•28 May 2025
NATIONAL NATIVE TITLE TRIBUNAL
Elderberry Resources Pty Ltd v Bunuba Dawangarri Aboriginal Corporation RNTBC and Another [2025] NNTTA 14 (28 May 2025)
Application No: | WF2025/0001 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Elderberry Resources Pty Ltd
(grantee party)
- and -
Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2012/006; WCD2015/009; WCD2015/010)
(native title party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 28 May 2025 |
Catchwords: | Native title – future act – s 35 application for determination – exploration licence application – uncontested application – where the grantee party and the native title party have reached agreement but there is no agreement of the kind mentioned in s 31(1)(b) –consideration of agreed issues in accordance with s 39(4) – consent given for s 39(4)(b) – s 39 criteria considered – economic or other significance of act – public interest in doing of act – determination that the act may be done |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) s 57 Native Title Act 1993 (Cth) ss 28, 31, 36, 38, 39, 151 |
Cases: | Bunuba Dawangarri Aboriginal Corporation RNTBC v Elderberry Resources Pty Ltd and Another [2018] NNTTA 76 (‘Elderberry Resources 2018’) Cheedy and Others v Western Australia and Others [2011] FCAFC 100; (2011) 194 FCR 562 (‘Cheedy’) Elderberry Resources Pty Ltd v Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC and Another [2024] NNTTA 47 (‘Elderberry v Wanjina-Wunggurr’) Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 (‘Gomeroi v Santos’) Santos NSW Pty Ltd and Another v Gomeroi People and Another [2025] NNTTA 12 (‘Gomeroi 2025’) Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’) |
| Representative of the native title party: | Maddy Wonders, Kimberley Land Council |
| Representative of the grantee party: | Olivia Turner, IGO Limited |
| Representatives of the Government party: | Matthew Offer, State Solicitor’s Office; Dennis Jacobs, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Elderberry Resources Pty Ltd has applied to the Tribunal for a determination under s 38 of the Native Title Act 1993 (Cth) that exploration licence E 04/2487, located north-westerly of Fitzroy Crossing in Western Australia, may be granted.
Elderberry’s application comes after a period of negotiation between Elderberry, the relevant native title party Bunuba Dawangarri Aboriginal Corporation RNTBC and the State of Western Australia in accordance with s 31(1)(b) of the Native Title Act. The negotiations between the parties followed an earlier determination by the Tribunal that the grant of the licence is not an act attracting the expedited procedure under the Native Title Act: Elderberry Resources 2018 at [62]. The Tribunal made that determination on the basis that the grant of the licence was likely to interfere with a number of areas or sites, some located in and around Windjana Gorge National Park.[1] Those areas or sites, which the parties had agreed were of particular significance to the Bunuba People, included a gender restricted ceremony site, rock paintings and dreaming sites.
[1] According to the Tribunal’s online mapping tool, Native Title Vision, Windjana Gorge National Park is now called Bandilngan National Park.
If all of the negotiation parties had entered into an agreement of the kind mentioned in s 31(1)(b) (Section 31 Agreement), then the licence could be validly granted in accordance with the Native Title Act: s 28(1)(f). However, that has not occurred. Elderberry and Bunuba say they have reached agreement as between themselves in relation to the grant of the licence and its effect by entering into an Ancillary Agreement but there is no Section 31 Agreement. Hence, Elderberry’s application to the Tribunal, which is an alternative way for the licence to be validly granted: s 28(1)(g) Native Title Act. Neither Bunuba nor the State oppose Elderberry’s application.
I am satisfied that I can adequately determine the issues without the need for a hearing: s 151 Native Title Act. Having taken into account the issues agreed by the parties and the other requirements of the Native Title Act, I have determined that the licence may be granted.
What are the relevant issues?
Section 38 of the Native Title Act requires me to make one of the following determinations:
(a)that the grant of the licence must not be done;
(b)that the grant of the licence may be done; or
(c)that the grant of the licence may be done, subject to conditions to be complied with by any of the parties.
In making a determination, I must take into account the five matters (or groups of matters) set out in ss 39(1)(a)-(c), (e) and (f) of the Native Title Act. The Tribunal’s task involves a balancing of all of the mandatory considerations (see Gomeroi v Santos at [382]) and the weight to be afforded to each matter will depend on the evidence (see Western Australia v Thomas at page 166).
Sections 39(1)(a) and (b) concern the effect of the grant on particular matters relating to Bunuba and its intentions for the management, use or control of the area. Sections 39(1)(c) and (e) relate, respectively, to the economic or other significance of the grant and any public interest in it, and s 39(1)(f) captures any other matter I consider relevant.
Importantly, I must also take into account any relevant issues on which the parties agree and, with the parties’ consent, need not take into account the matters mentioned in s 39(1) to the extent that they relate to those agreed issues: s 39(4) Native Title Act. In this case, each of the parties has given their consent for the purposes of s 39(4); although, as I will explain, not all issues are agreed.
The State and Elderberry have provided a Joint Statement in relation to matters they consider relevant to my determination, while Bunuba provided separate contentions. There is no evidence before me other than the preliminary mapping and information about the licence and the licence area provided by the State. None of the parties have raised any issue in relation to good faith: s 36(2) Native Title Act.
Which issues are agreed?
In its contentions, Bunuba confirmed that it has reached an Ancillary Agreement with Elderberry which it considers “addresses each of the matters set out in [ss] 39(1)(a)-(b)”. This is echoed by the State and Elderberry in their Joint Statement.
Further, Bunuba and Elderberry both submit that the Tribunal should take into account the fact that they have addressed the matters set out in ss 39(1)(a) and (b) to their mutual satisfaction.
The State confirms its reliance on the statements of Elderberry at paragraphs 7–10 of their Joint Statement, which includes its statements about ss 39(1)(a) and (b), and agrees to the Tribunal taking those statements into account.
Given the parties’ agreement that Bunuba and Elderberry have addressed the matters in ss 39(1)(a) and (b) to their mutual satisfaction and their consent for the purposes of s 39(4), I do not propose to further consider the matters in ss 39(1)(a) and (b). However, I will now turn to consider each of the remaining matters listed in s 39(1).
What is the economic or other significance of the grant of the licence?
Under s 39(1)(c), I am required to take into account the economic or other significance of the licence to Australia, the State, the area in which the licence is 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 licence, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas at pages 175–176).
The licence is an exploration licence which would be granted under s 57 of the Mining Act 1978 (WA), ordinarily for an initial term of five years but it may be renewed. The State has provided details of the proposed endorsements and conditions to which the licence would be subject. I note that a range of regulatory controls apply including under the Mining Act, Aboriginal Heritage Act 1972 (WA) and other environmental and water management legislation.
In Elderberry Resources 2018 at [20], the Tribunal noted that Elderberry considers the area prospective for Proterozoic nickel sulphides and outlined details of Elderberry’s exploration strategy and proposed work program.
Elderberry submits that the grant of the licence is of economic significance to Australia, the State of Western Australia, the area in which the licence is located and the Aboriginal people who live in that area, although no further explanation is given. The State says that it relies on that statement by Elderberry and agrees to me taking it into account. Bunuba does not make any submissions on this criterion.
There is no specific evidence regarding any of the potential benefits arising from the grant of the licence. The licence application discloses the rent payable by Elderberry. There may also be some benefit to Bunuba under the Ancillary Agreement, but again, there is no evidence on that point.
I recognise there may be some economic benefit arising from exploration activity, particularly to the local area but, overall, there is little I can draw from the material, and I give limited weight to this matter.
Is there any public interest in the grant of the licence?
Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the licence. Only Elderberry and the State addressed the question of public interest.
This phrase confers a wide discretionary judgement. As Mortimer CJ observed in Gomeroi v Santos at [221], the scheme of the Native Title Act requires the Tribunal, “informed by the objects of the [Native Title Act] and the values set out in the Preamble”, to “form its own views on where the public interest lies both as a separate consideration and as part of a holistic exercise, reflecting on all the factors in s 39(1)”.
O’Bryan J, with whom the Chief Justice agreed, framed the analysis as requiring a consideration of both the public benefits and public detriments of the proposed act in order to assess whether there is any overall (or net) public interest: Gomeroiv Santos at [345]. This analysis has also been recently canvassed in Gomeroi2025 at [281].
None of the parties have made any detailed submissions on any public interest (whether benefit or detriment) in the grant of the licence. Elderberry submits that the public interest supports the grant of the licence but does not explain why. The State does not expressly agree with that proposition but again says that it relies on the statement by Elderberry and agrees to me taking it into account.
The Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry (Western Australia v Thomas at page 176). In Cheedy at [138] the Full Court of the Federal Court of Australia accepted that general proposition while noting that it may be necessary for the Tribunal to consider the public interest in the particular project rather than by reference to the mining industry in general. I also accept that general proposition.
More importantly though, Bunuba is satisfied that the effects of the grant of the licence and its interests, proposals, opinions and wishes will be addressed or managed through the Ancillary Agreement. For the reasons I discussed in Elderberry v Wanjina-Wunggurr at [40] and [42]–[43], I am therefore of the view that there is public interest in a decision consistent with the outcome of the parties’ negotiations under s 31(1)(b), notwithstanding the absence of a Section 31 Agreement.
Are there any other relevant matters?
Under s 39(1)(f) I must take into account any other matters I consider relevant.
I have taken into account the fact that Bunuba has reached agreement with Elderberry and that it neither consents to nor opposes the making of a determination.
There are no other matters that I consider relevant to my determination in this matter.
Should the licence be granted and, if so, should conditions be applied?
I have given significant weight to the fact that Bunuba does not oppose a determination that the licence may be granted and that Bunuba and Elderberry have reached an agreement about the grant of the licence which addresses Bunuba’s interests, proposals, opinions and wishes, as well as any effects under s 39(1)(a) to Bunuba’s satisfaction. Consistent with the parties’ consent under s 39(4), I have not further considered the matters in ss 39(1)(a) or (b).
There is limited evidence of any economic or other benefit or public interest in the grant of the licence but, as explained, I am satisfied there is public interest in the grant proceeding.
For these reasons, I conclude that the licence may be granted.
As noted, the State’s material includes the endorsements and conditions it proposes to impose on the grant of the licence, which I have considered in making my decision. No other condition is proposed by any party and I do not consider it necessary to make my determination subject to any conditions to be complied with by any party.
Determination
I determine that exploration licence E 04/2487 may be granted.
Ms Nerida Cooley
Member
28 May 2025
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