Elderberry Resources Pty Ltd v Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC
[2024] NNTTA 47
•28 June 2024
NATIONAL NATIVE TITLE TRIBUNAL
Elderberry Resources Pty Ltd v Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC and Another [2024] NNTTA 47 (28 June 2024)
Application No: | WF2024/0001 |
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 -
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2004/001)
(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 June 2024 |
CORRIGENDUM
Correction to the Future Act Determination made on 28 June 2024 to rectify a typographical error as follows.
At paragraph [42], the reference to ‘ss 31(1)(a) and (b)’ is corrected to read ‘ss 39(1)(a) and (b)’.
Ms Nerida Cooley
Member
29 May 2025
NATIONAL NATIVE TITLE TRIBUNAL
Elderberry Resources Pty Ltd v Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC and Another [2024] NNTTA 47 (28 June 2024)
Application No: | WF2024/0001 |
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 -
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2004/001)
(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 June 2024 |
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) – s 39 criteria considered – effect on native title rights and interests – effect of act on way of life, culture and traditions – effect of act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – s 39(4) consideration of agreed issues – determination that the act may be done |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 66 Native Title Act 1993 (Cth) ss 24MD, 28, 31, 36, 38, 39, 151, 238 |
Cases: | Cheedy and Others v Western Australia and Others [2011] FCAFC 100; (2011) 194 FCR 562 (‘Cheedy’) Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182 (‘Copper Strike’) Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 (‘Gomeroi v Santos’) Neowarra v Western Australia [2004] FCA 1092 (‘Wanjina-Wunggurr Determination’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd and Another [2018] NNTTA 73 (‘Elderberry Resources 2018’) Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’) |
| Representatives of the native title party: | Imogen Cox and Scott Howieson, Kimberley Land Council |
| Representative of the grantee party: | Olivia Turner, IGO Limited |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Dennis Jacobs, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Elderberry Resources Pty Ltd has applied for the grant of an exploration licence (E 04/2485) located easterly of Derby in Western Australia.
In 2018, the Tribunal determined that the grant of the licence is not an act attracting the expedited procedure under the Native Title Act 1993 (Cth): see Elderberry Resources 2018.
This meant that the negotiation parties, being Elderberry, the State of Western Australia and Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC were required to negotiate in good faith in accordance with s 31(1)(b) of the Native Title Act with a view to obtaining Wanjina-Wunggurr’s agreement to the grant of the licence (Section 31 Agreement). If all of the negotiation parties had entered into a Section 31 Agreement, then the licence could be validly granted in accordance with the Native Title Act: s 28(1)(f).
Elderberry and Wanjina-Wunggurr say they have reached agreement as between themselves in relation to the grant of the licence by entering into what Elderberry calls an Ancillary Agreement. However, there is no agreement with the State, which means there is no Section 31 Agreement.
Elderberry has applied to the Tribunal for a determination under s 38 of the Native Title Act, which is an alternative way for the licence to be validly granted: s 28(1)(g) Native Title Act.
All parties agree to me determining this matter on the papers and I am satisfied that I can adequately determine the issues without the need for a hearing: s 151 Native Title Act.
Neither Wanjina-Wunggurr nor the State oppose Elderberry’s application. Having taken into account the mandatory considerations set out in the Native Title Act and the issues agreed by the parties, I have determined that the licence may be granted. In reaching this conclusion I have given significant weight to Wanjina-Wunggurr’s views about the Ancillary Agreement and, informed by the Preamble to the Native Title Act, consider there is public interest in making a determination which reflects that agreement.
What are the relevant issues?
Under s 38 of the Native Title Act, I am required 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. As observed by O’Bryan J in Gomeroi v Santos at [382], the Tribunal’s task involves a balancing of all of the mandatory considerations. The weight to be afforded to each matter will depend on the evidence (see Western Australia v Thomas at page 166).
The State and Elderberry have provided a Joint Statement in relation to matters they consider relevant to my determination, while Wanjina-Wunggurr provided separate contentions. There is no new 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 has raised any issue in relation to good faith: s 36(2) Native Title Act.
Are there any relevant issues on which the parties agree?
With the parties’ consent, I must take into account any relevant issues on which they agree and need not take into account the matters mentioned in s 39(1) to the extent they relate to the agreed issues: s 39(4) Native Title Act.
As I will discuss further below, the parties each agree to me taking into account the way in which the Ancillary Agreement addresses the matters in ss 39(1)(a) and (b).
While the State agrees to me having no further regard to the matters set out in s 39(1), neither Elderberry nor Wanjina-Wunggurr go that far and, in any event, the scope of the agreed issues is confined to ss 39(1)(a) and (b). I have considered each of the matters mentioned in s 39 as outlined below, taking the agreed issues into account.
Details about the licence and the licence area
The licence is an exploration licence which would be granted under s 57 of the Mining Act1978 (WA), ordinarily for an initial term of five years but it may be renewed. The non-extinguishment principle will apply to the grant of the licence which means that, while they will continue to exist, any inconsistent native title rights will have no effect on the licence during its term: s 24MD(3) and s 238 Native Title Act.
In Elderberry Resources 2018, the Tribunal noted that Elderberry considers the area prospective for proterozoic nickel sulphides. While the Tribunal had some evidence of Elderberry’s initial activities, the activities in later years were dependant on results and so the Tribunal proceeded on the basis that Elderberry intended to exercise the full suite of rights set out in s 66 of the Mining Act. I do not have any new information about Elderberry’s proposed activities.
The information about the licence provided by the State reveals that:
(a)the licence is 11,124.17 hectares in size and the underlying tenure is pastoral lease;
(b)the whole of the licence area is included in the West Kimberley National Heritage Listing; and
(c)there are a number of waterholes and a well in the licence area.
The State has provided details of the proposed endorsements and conditions to which the licence would be subject. A range of other regulatory controls would also apply including under the Mining Act, Aboriginal Heritage Act 1972 (WA) (AHA) and environmental and water management legislation.
What effect will the grant of the licence have on particular matters relating to Wanjina-Wunggurr and what are its interests, proposals, opinions or wishes?
Wanjina-Wunggurr holds non-exclusive native title in trust for the members of the Wanjina-Wunggurr Community in relation to the whole of the licence area (see Wanjina-Wunggurr Determination).
The native title rights and interests held by Wanjina-Wunggurr are set out in the relevant entry on the National Native Title Register maintained under the Native Title Act. In the present context it is not necessary for me to list all of those rights and interests, but they include rights such as accessing certain areas to seek sustenance as well as for hunting, gathering and fishing activities, camping, conducting and taking part in ceremonies and visiting places of importance.
The first of the matters I must take into account, as listed in s 39(1)(a), is the effect of the grant of the licence on the following relating to Wanjina-Wunggurr:
(a)the enjoyment of its registered native title rights and interests;
(b)its way of life, culture and traditions;
(c)the development of its social, cultural and economic structures;
(d)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; and
(e)any area or site of particular significance to Wanjina-Wunggurr.
In determining how the grant of the licence will affect these matters I must take into account the nature and extent of existing non-native title interests and any other existing uses of the land or waters in the licence area: s 39(2) Native Title Act.
I must also take into account Wanjina-Wunggurr’s interests, proposals, opinions or wishes in relation to the management, use or control of those lands or waters where its registered native title rights will be affected by the grant of the licence: s 39(1)(b) Native Title Act.
In Elderberry Resources 2018, the Tribunal found that members of the Wanjina-Wunggurr Community conducted community and social activities in the licence area, including regular hunting, fishing, gathering and camping, as well as visiting and maintaining sites and intergenerational teaching. The Tribunal was satisfied that the grant of the licence was likely to interfere with those activities.
A number of the identified cultural activities were associated with Kongorow Pool, a large body of permanent water located in the licence area. The Tribunal also found that the area of the pool and surrounds, called Kongorow/Congarra, was an area or site of particular significance to the Wanjina-Wunggurr Community, with which the grant of the licence was also likely to interfere. The particular significance of Kongorow/Congarra was explained by reference to a number of factors including dreaming stories associated with the pool, rock art and ceremonial use.
In addition to Kongorow/Congarra, there are two sites in the licence area on the Aboriginal Cultural Heritage Register under the AHA, one described as “Grinding areas / Grooves” and one as “Artefacts / Scatter”. However, there is no evidence about whether those sites are of particular significance to Wanjina-Wunggurr for the purposes of s 39(1)(a)(v).
The Tribunal’s findings in relation to the activities undertaken by members of the Wanjina-Wunggurr Community in the licence area and Kongorow/Congarra as an area or site of particular significance are relevant to the effect of the grant of the licence under s 39(1)(a) and informed or underpinned the parties’ negotiations under s 31(1)(b).
In Elderberry Resources 2018, the Tribunal was concerned with particular “likely” consequences arising from the grant of the licence whereas s 39(1)(a) requires me to take into account the actual effect on a range of different matters. It might be reasonable to infer from the Tribunal’s findings in Elderberry 2018 that the grant of the licence will have at least some effect on Wanjina-Wunggurr’s enjoyment of its registered native title rights and interests, its way of life, culture and traditions, its freedom of access to parts of the licence area and an area or site of particular significance. The extent of any such effect is not clear on the material before me and none of the parties has undertaken that analysis, although, by their contentions, Wanjina-Wunggurr and Elderberry appear to accept that the grant of the licence will have some effect on the matters in s 39(1)(a).
Wanjina-Wunggurr makes a number of key statements in relation to ss 39(1)(a) and (b) which it asks that I take into account. It says that:
(a)it has reached agreement with Elderberry (which I take to be the Ancillary Agreement) which it considers addresses each of the matters set out in ss 39(1)(a) and (b) with respect to the licence; and
(b)its interests, proposals, opinions and wishes in relation to the management, use or control of the relevant land and waters have been taken into account by Elderberry and addressed in the agreement.
Both Wanjina-Wunggurr and Elderberry agree to me taking into account the fact that they have addressed the matters outlined in ss 39(1)(a) and (b) to their mutual satisfaction. While the State is not a party to the Ancillary Agreement, it relies on Elderberry’s statement to that effect and agrees to me taking it into account, which I have done.
The Ancillary Agreement itself is not in evidence and the parties have not provided any details about its terms. The Tribunal observed in Copper Strike at [33] that it is not the role of the Tribunal to “second guess” the negotiation parties or evaluate “the commercial or other merits of agreements reached by the negotiation parties”.
Of importance in this case is that, following negotiations in accordance with s 31(1)(b), Wanjina-Wunggurr is itself satisfied that the effect of the grant of the licence, and its interests, proposals, opinions and wishes are addressed through its agreement with Elderberry. In my view, the agreed issues and Wanjina-Wunggurr’s views in that respect carry significant weight in my consideration of ss 39(1)(a) and (b).
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).
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. Wanjina-Wunggurr 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 and, in particular, why it is of economic significance as submitted by Elderberry. The licence application discloses the rent payable by Elderberry. There may be some benefit to Wanjina-Wunggurr under its agreement with Elderberry but again I have no evidence on that point.
Overall, on the material before me, there is little to be gleaned regarding any economic or other benefit arising from the grant of the licence.
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.
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. Wanjina-Wunggurr does not address the public interest.
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 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.
The scope of s 39(1)(e) was recently considered by the Full Court of the Federal Court in Gomeroi v Santos. Her Honour Chief Justice Mortimer observed at [213] that, “[i]t is well established … that Parliament’s use of the phrase “any public interest” confers a wide discretionary value judgment”. Her Honour went on to note at [214] that the adjective “public” asks a repository of power such as the Tribunal to look at “interests common to or held amongst a wider community, but not necessarily across an entire community, or nation” and at [221] that, “informed by the objects of the [Native Title Act] and the values set out in the Preamble” the Tribunal is required 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)”.
The Preamble to the Native Title Act sets out considerations taken into account by the Parliament of Australia in its enactment. These considerations include, as observed by O’Bryan J at [332] of Gomeroi v Santos, that acts that affect native title “should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate”.
As I have said none of the parties in this case has made any detailed submissions on any public interest in the grant of the licence. In the absence of any other specific public interest factors being raised, I can accept the general proposition that mining exploration is in the public interest.
However, I also observe, consistent with the aims expressed in the Preamble to the Native Title Act, that Wanjina-Wunggurr and Elderberry have reached agreement through the “special right to negotiate”. While their Ancillary Agreement cannot be relied upon for the valid grant of the licence because it is not a Section 31 Agreement with the State, it is nonetheless an agreement reached between a native title party and a grantee party through the right to negotiate process and under which the native title party says the matters in ss 31(1)(a) and (b) have been addressed to its satisfaction.
In that context, there is, in my view, also public interest in an outcome consistent with the agreement reached between those parties. In Copper Strike, the Tribunal observed at [32]–[33], that the right to negotiate provisions of the Native Title Act “have been drafted with the clear aim of promoting agreement-making” describing “the cumulative effect” of a number of the relevant provisions being “to place the Tribunal on notice that wherever possible the Tribunal should promote agreement-making and recognise the primacy of any reasonable agreement reached between the negotiation parties”.
Wanjina-Wunggurr 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, and the fact that all three negotiation parties have not reached an agreement of the kind contemplated by s 31(1)(b) does not detract from that position.
Are there any other relevant matters?
Under s 39(1)(f) I must take into account any other matters I consider relevant.
As noted, I have taken into account the fact that Wanjina-Wunggurr 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?
The parties appear to accept that the grant of the licence will have some effect on the matters listed in s 39(1)(a) but there is no evidence as to the extent of that effect other than what I might reasonably infer from the findings in Elderberry Resources 2018.
There is also no evidence of the economic or other benefit or public interest in the grant of the licence, although I can accept there is at least some public interest in the grant proceeding as part of a viable mining industry.
I have given significant weight to the fact that Wanjina-Wunggurr does not oppose the grant and that Wanjina-Wunggurr and Elderberry have reached an agreement about the grant of the licence which addresses Wanjina-Wunggurr’s interests, proposals, opinions and wishes, as well as any effects under s 39(1)(a) to its satisfaction. Wanjina-Wunggurr’s views in that respect are significant and, having regard to my consideration of the matters prescribed in s 39 as outlined above, I am satisfied that the licence may be granted. I consider the public interest is also served by that outcome given the Ancillary Agreement reached between Wanjina-Wunggurr and Elderberry.
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 04/2485 may be granted.
Ms Nerida Cooley
Member
28 June 2024
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