Elderberry Resources Pty Ltd v Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC - [2024] NNTTA 47

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 (‘

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Elderberry Resources Pty Ltd v Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC [2024] NNTTA 47
Case: [2024] NNTTA 47
Decision Date: 28 June 2024

CaseChat Overview and Summary

Elderberry Resources Pty Ltd applied for a future act determination under section 38 of the Native Title Act 1993 (Cth) in respect of the grant of an exploration licence (E 04/2485) located easterly of Derby in Western Australia. Elderberry and the native title holder, Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC, have reached an agreement in relation to the grant of the licence, however, there is no agreement with the Government party, the State of Western Australia. The Tribunal is required to consider the effect of the grant of the licence on Wanjina-Wunggurr’s rights and interests, the economic or other significance of the licence, and whether there is any public interest in the grant of the licence. The parties agreed to the Tribunal taking into account the Ancillary Agreement between Elderberry and Wanjina-Wunggurr, which addresses the matters in sections 39(1)(a) and (b) to their mutual satisfaction. In the absence of any evidence to the contrary, the Tribunal is satisfied that the grant of the licence may be done.

The Tribunal considered the effect of the grant of the licence on Wanjina-Wunggurr’s 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 Tribunal observed that it was not its role to “second guess” the negotiation parties or evaluate “the commercial or other merits of agreements reached by the negotiation parties”. Wanjina-Wunggurr is satisfied that the effects of the grant of the licence and its interests, proposals, opinions and wishes are addressed through its agreement with Elderberry, and the fact that all three negotiation parties have not reached an agreement of the kind contemplated by section 31(1)(b) does not detract from that position. In addition, the Tribunal considered the economic or other significance of the licence and, in the absence of any evidence to the contrary, was satisfied that the public interest was served by the grant of the licence. The Tribunal observed that, consistent with the aims expressed in the Preamble to the Native Title Act, Wanjina-Wunggurr and Elderberry have reached agreement through the “special right to negotiate” and there is also public interest in an outcome consistent with the agreement reached between those parties.

DeterminationThe Tribunal determines that exploration licence E 04/2485 may be granted.

Orders