Rodney Wayne Bell v Watarra Aboriginal Corporation RNTBC
[2025] NNTTA 19
•14 July 2025
NATIONAL NATIVE TITLE TRIBUNAL
Rodney Wayne Bell v Watarra Aboriginal Corporation RNTBC and Another [2025] NNTTA 19 (14 July 2025)
Application No: | WF2024/0014 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Rodney Wayne Bell
(grantee party)
- and -
Watarra Aboriginal Corporation RNTBC (WCD2022/002)
(native title party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Member Glen Kelly |
Place: | Perth |
Date: | 14 July 2025 |
Catchwords: | Native title – future act – s 35 application for determination – mining lease application – no agreement with native title party – s 39 criteria considered – no evidence from native title party – common sense approach to evidence – native title party providing no evidence– 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: | Mining Act 1978 (WA) s 85 Native Title Act 1993 (Cth) ss 29, 30A, 31, 36, 37, 38, 39, 109 |
Cases: | Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 764 (Harrington-Smith v WA) Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 (Gomeroi v Santos) Kevin Alfred De Roma v Western Yalanji Aboriginal Corporation RNTBC and Another [2022] NNTTA 40 (De Roma v Western Yalanji) Raymond Dann & Others on behalf of the Amangu People/Western Australia/Warrego Energy Limited, [2010] NNTTA 30 (Dann v Warrego) Santos NSW Pty Ltd and Another v Gomeroi People and Another [2025] NNTTA 12 (Santos v Gomeroi) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208(Ward v Western Australia) Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 (Western Australia v Thomas) Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (WA v Ward) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (WA) Ltd [1996] NNTTA 30; (1996) 133 FLR 124 (Waljen) White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales, [2011] NNTTA 110 (White Mining v Wonnarua) WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (WMC Resources v Evans) |
| Representative of the native title party: | Vanessa Malu Cecchi, Umanity Legal |
| Representative of the grantee party: | Rodney Bell |
| Representatives of the Government party: | Matthew Offer, State Solicitor’s Office; Simon Gamble, Department of Mines, Petroleum and Energy |
BACKGROUND
This decision concerns whether the State of Western Australia may grant the mining lease M 37/1357 to Mr Rodney Wayne Bell (grantee party) and if so, whether the grant should be subject to conditions.
On 7 April 2021, the State issued a notice pursuant to s 29 of the Native Title Act 1993 (Cth) that it intends to grant the lease to Mr Bell. As set out in the notice, the lease is approximately 10 hectares in size and is located approximately 54 kilometres in a north-westerly direction from Leonora.
Watarra Aboriginal Corporation RNTBC holds non-exclusive native title rights and interests in trust for the whole of the lease area (see Harrington-Smith v WA) and is therefore a negotiation party under s 30A of the Native Title Act.
Following the s 29 notice, the negotiating parties are required to conduct good faith negotiations with a view to obtaining Watarra’s agreement to the grant of the lease (s 31(1)(b) Native Title Act). The parties were not able to reach agreement and, on 6 December 2024, Mr Bell applied to the National Native Title Tribunal for a determination under s 38 of the Native Title Act. On 11 December 2024, the President of the Tribunal directed me to constitute the Tribunal for the purposes of conducting an inquiry into the application. Due to the need for further information however, the application was not accepted by the Tribunal until 14 January 2025.
I must not make a determination in this matter if the 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, Watarra indicated at the preliminary conference its intention to raise the issue of good faith negotiations. However, as explained below, no submissions on this point were made.
Having taken into account the matters required by the Native Title Act, I have determined that the future act may be done.
Issues for Determination
Section 38 of the Native Title Act provides that in determining this application, 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.
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. 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 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 placed before the Tribunal on each occasion (see Western Australia v Thomas at page 166).
Further to this and as noted by Deputy President Sumner in Dann v Warrego Energy at [12], the provisions impose an obligation on the Tribunal to give proper consideration to the s 39 criteria even when a native title party has not participated in proceedings.
Tribunal proceedings
Following acceptance of the application, a preliminary conference was held on 30 January 2025. All parties agreed to the draft directions circulated by the Tribunal in advance of the conference, and these were subsequently issued to parties. The State then provided its technical submissions on 12 February 2025.
On 14 March 2025, being the date that Watarra were due to comply, the State on behalf of Watarra advised the Tribunal that due to a number of recent deaths in the Watarra community and the legal representative for Watarra being on leave, the required submissions had not been provided. The State noted that the Watarra representative would be returning the following week and requested time be allowed for a formal extension request from Watarra. Given the circumstances, I vacated directions and instructed Watarra to provide an extension request or status update by 26 March 2025.
On 26 March 2025, the Watarra representative provided an update advising instructions regarding timeframes for an extension request had not been able to be obtained. It was noted that Watarra’s ability to engage on this matter had been hampered by sorry business and a backlog of matters, and it was expected that Watarra would need at least a month to comply. The Watarra representative requested the Tribunal propose further directions and instructions would be sought in the coming weeks.
In response to Watarra’s update, the State advised it would support a compliance date of 5 May 2025 for Watarra or alternatively for a further status update from Watarra to be provided by 11 April 2025. No comments were received from Mr Bell.
As conveyed to parties by email on 31 March 2025, the timelines for determining matters such as this are not open ended and the Tribunal must aim to make a determination in this matter by 14 July 2025 (per s 36(3) Native Title Act). For this reason, directions were reinstated with Watarra compliance falling due on 17 April 2025.
On 17 April 2025, the Tribunal was advised that Umanity Legal had taken carriage of this matter on behalf of Watarra and requested a further three weeks to provide submissions, noting it was attending to this matter as a priority and seeking a complete handover. Again, given the circumstances, I amended directions for Watarra compliance by three weeks, with compliance now due 8 May 2025.
Even so, no submissions have been provided by Watarra in this matter, either in regard to good faith or on the s 39 criteria. On 3 June 2025, the State provided contentions and, on the same date, Mr Bell provided a brief email by way of submissions. In this email, Mr Bell outlined that he had been able to engage in a conversation with a Director of Watarra and that as an outcome, Umanity were to provide an agreement draft which Mr Bell regarded as a ‘solution [that] sound[s] really good for us all’[1].
[1] Grantee contentions [1].
On 9 July 2025, at my instruction, a Tribunal officer reached out to the parties to seek advice on whether any agreement had been reached. The State replied on 11 July 2025 that it was of the understanding that no agreement of the kind mentioned in s 31(1)(b) of the Native Title Act had been reached.[2] Mr Bell also replied on 11 July 2025 and stated that he had not heard from Watarra’s legal representative and that he was surprised by this given there seemed to be some enthusiasm about the result.[3]
[2] State agreement submission.
[3] Grantee agreement submission
The legal representative of Watarra, Umanity Legal, replied on 14 July 2025 stating it had provided the draft agreement on the previous business day, being 11 July 2025.[4] Given the information contained within communication from Mr Bell on this same issue, this would appear to have occurred after the submission made by Mr Bell.
[4] Watarra agreement submission.
In this same correspondence, the Watarra representative requested a 21-day deferral of this determination to provide reasonable time for consideration by Mr Bell. The Watarra representative further submitted that delays in the provision of the draft reflected the complexity involved in developing terms that addressed all parties’ interests and concerns and that deferral would align with the ‘fundamental objectives of the [Native Title] Act, established principles favouring negotiated outcomes, the legitimate interests of all parties in achieving certainty and mutual respect, and the broader public interest in effective native title resolution’.[5]
[5] Ibid.
It would seem more likely that the inquiry by the Tribunal on the status of an agreement draft was the event that triggered its delivery, which occurred more than five weeks after it was initially committed to. At each point of this inquiry, Watarra and its representatives have been provided with time and space to provide submissions and to further their interests within this process, and at each of these points, there have been no submissions forthcoming from Watarra or its representatives.
It defies credibility for the representative to now submit, on the very day the determination is set to be made in accordance with the Native Title Act, that an extension should be provided based on the fundamental objectives of the Native Title Act when it has failed at each point to support the Watarra interest by providing actual submissions to the inquiry. Indeed, if as much effort had been placed into developing submissions and an agreement draft in a timely manner as the final extension request, the result may have been different.
This was not the case however, and given the procedural history I formed the view that it was unlikely that action would occur in a timely manner. Additionally, I formed the view that Watarra had been provided with sufficient opportunity to present its case. As a result, I declined the extension request, of which the parties were notified on 14 July 2025.
Nature of the Future Act
The act is for the grant of a mining lease, M 37/1357. This is a relatively small mining lease in that it covers an area of approximately 10 ha and is not associated with a broader project. This lease is a conversion from a prospecting licence.
The rights of the holder of a mining lease are set out in s 85 of the Mining Act 1978 (WA) and include that, subject to the Mining Act and any conditions, the holder may work and mine the land for any materials, take and remove any materials and dispose of them, take and divert water subject to relevant legislation and do all things necessary to carry out mining operations in, on or under the land. Additionally, the holder of the lease is entitled to use, occupy and enjoy the land and owns all minerals lawfully mined from the land under the mining lease.
The small mining proposal contained in the State’s technical submissions sets out a broad scope of works. In this Mr Bell states he intends to follow ore by scraping in strips until it is exhausted or leads to a minable source. Mr Bell also puts forward that in his view, ninety percent of the area has a base of greenstone at less than a metre of depth[6] which would appear to infer the scrapings referred to will generally be around one metre in depth. Material would then be processed in a wash plant[7] in which only water is used to physically separate raw gold from the surrounding soil.
[6] State Book of Documents, 13.
[7] Ibid, 19.
Water is to be sourced on site, presumably from a bore, and is to be used for the plant, general camp use and dust suppression, with water used in the wash plant disposed of in a small on-site dam.[8] Water from this dam is also recycled and reused through the wash plant.[9] Mr Bell provides that he hopes to be able to process around 20 tonnes of material per day through the wash plant.[10]
[8] Ibid, 17.
[9] Ibid, 19.
[10] Ibid, 19.
Overburden and wash spoil are to be sorted into separate piles depending on the type of material, with these materials subsequently being used in rehabilitation works.[11] As the operation involves only soil washing to physically separate gold, this same material and any overburden is to be placed back into the areas that have been scraped, and then sown with previously collected seed for revegetation purposes.[12]
[11] Ibid, 16.
[12] Ibid, 27.
Ancillary facilities include a small 6 x 4 m shed in addition to a small camp area.[13]
[13] Ibid, 14.
Native Title Rights and other Land Interests
The native title rights of the native title party form part of this consideration, particularly in light of s 39(1)(a). In this instance, the portion of the Watarra native title determination overlapped by the lease is an area over which non-exclusive native title has been found to exist. The nature of these non-exclusive rights and interests are set out in Harrington-Smith v WA at [5].
Additionally, s 39(2) of the Native Title Act requires me to take into account the nature and extent of existing non-native title rights to the area and existing use of the land by persons other than the native title parties. The State’s technical submissions show the lease fully overlaps a prospecting licence held by Mr Bell and the underlying tenure consists entirely of the Tarmoola pastoral lease. Additionally, the area has previously been subject to a number of now surrendered or expired exploration and prospecting licences.[14]
[14] Ibid 1
GOOD FAITH
Right to negotiate matters are subject to a requirement for the grantee and government parties to negotiate in good faith with a view to obtaining the agreement of the native title party (s 31(b) Native Title Act). If I am satisfied that one of these parties did not negotiate in good faith, I must not make the determination on the application (s 36(2) Native Title Act). Principles regarding the Tribunal’s consideration of good faith, which I adopt for this determination, are set out in De Roma v Western Yalanji at [16]-[30].
Initially, the representative for Watarra indicated that an assertion would be made that the grantee party did not negotiate in good faith. After a series of extensions and a change of legal representation however, no submission was made by the provided compliance date supporting this assertion. As a result, I have no material before me from Watarra detailing its initial assertion that the grantee party did not negotiate in good faith. Additionally, no other party made submissions on this topic.
Given I have no material before me, I am unable to come to a finding that the grantee party did not negotiate in good faith as initially asserted by Watarra. As a result of this, I am able to proceed to make a determination on the application.
CONSIDERATION OF SECTION 39(1) CRITERIA
Section 39(1)(a)(i)-(v):
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)
No evidence or contentions have been submitted by Watarra in regard to any of the s 39 criteria. The Tribunal is not bound by the rules of evidence (s 109(3) Native Title Act) however must take a common sense approach. As clarified in Ward v Western Australia at [26], this common sense approach is not the same as applying an onus of proof on a native title party in that if a party does not lead evidence on a particular issue, it does not necessarily mean they must fail on this issue. Further to this however, if there are facts that are specifically within the knowledge of a party, failure to produce evidence may lead to an unfavourable inference on the part of the Tribunal. This is not because of an evidential onus of proof, it is through the application of a common sense approach to evidence.[15]
[15] Ward v Western Australia [26].
In considering the effect of the act on these criteria, it is necessary to take into account the nature of the act and the activities associated with it so as to undertake an assessment of any potential effect. This includes a consideration of other land uses in accordance with s 39(2) of the Native Title Act.
In doing so, I understand the operation to be of a relatively small scale in terms of landscape impact, covering a relatively small area of land. Mr Bell’s proposal involves minor infrastructure, with no chemical use, and rehabilitation to occur using the same material as that which was excavated, following the physical separation of any gold through the wash plant.
Watarra have provided no evidence as to the enjoyment of native title, or indeed any statement regarding the physical enjoyment of native title in the area of the lease.[16] The State contends that with the absence of evidence, I should conclude there will not be any negative effects on the enjoyment of native title rights and interests, and even where effects may exist, these are mitigated by the regulatory environment and the small size of the lease.[17]
[16] See for example WA v Ward [104] and WMC Resources v Evans [31].
[17] State contentions [26], [29].
The contention regarding the small size of the tenement and the nature of the activity is compelling, and the limited nature of the activity and the small size of the lease would suggest there will be minimal effect on the exercise of native title in any event. This view is not countered by evidence as to the enjoyment of native title and the effect the act may have on this enjoyment by Watarra.
As a result of this, I conclude that any effect on the enjoyment of native title will be minimal.
I consider similarly in regard to s 39(1)(a)(ii)-(iv). Watarra have not provided evidence in regard to any of these criteria, to which the State contends should lead me to conclude there will be no relevant effects.[18] In regard to s 39(1)(a)(ii), in Waljen, the Tribunal made remarks on the need for evidence of the way of life, culture and traditions of the native title party[19]. In White Mining v Wonnarua, Deputy President Sosso provided more general remarks in that the Tribunal could only sensibly evaluate the effect of the future act if there is evidence from which inferences can be drawn and scenarios developed.[20] These remain sound principles upon which to approach these matters.
[18] State contentions [32], [35], [38].
[19] Waljen 169-170
[20] White Mining v Wonnarua [48].
As a result of there being no evidence before me in relation to s 39(1)(a)(ii)-(iv) from Watarra, I cannot sensibly assess what effect there may be and cannot reach a conclusion there will be any effect in regards to the subject matter of these criteria made by the act. In any event and as remarked previously, the future act itself and the activities that are set to arise from it are limited. Even in the absence of any evidence then, it seems reasonable to reach a conclusion that any effect of the act in regard to these criteria will be minor.
As with the previous, there is no evidence before me in regard to places of particular significance (s 39(1)(a)(v)), with the State’s technical submissions also showing there are no registered or lodged sites within or near the lease.[21] Given the material before me, I conclude there are no areas or sites of particular significance within or near the lease and as a result, conclude that the future act will have no effect on places or sites of particular significance.
Section 39 (1)(b) – the interests, proposals, opinions or wishes of Watarra in relation to the management, use or control of the land affected by the future act.
[21] State Book of Documents 33 - 41
In correspondence during the course of the inquiry, Watarra expressed to the grantee party that it would like to come to agreed terms and there seemed to be some move towards this late in proceedings. This did not occur however, and neither did the Tribunal receive submissions on the terms sought.
As a result of this and due to there being no contentions or evidence submitted by Watarra, there is no information before me in regard to the interests, proposals, opinions or wishes of Watarra to take into account.
Section 39(1)(c) – the economic or other significance of the act to Australia, the State, the area in which the act occurs and the Aboriginal or Torres Strait Islander people who live in the area.
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).
No economic information has been submitted in regard to this future act and neither has there been on other types of significance the project may have. Nonetheless a high-level assessment can be made based on the nature of the project as described in the Proposal for Small Mining Operations contained with the State technical submissions and as outlined previously.
The project described is small in nature and will operate over a small area of land. While there is a possibility the grantee party may make strong resource finds, these are likely to be commensurate with the size and nature of the project. While this means that on a personal level and by extension, in the local area due to consumption, there may be a positive economic impact, on a national or State level, this project could not be said to have great economic or other significance.
Given there is no agreement in place with Watarra and given there is no likelihood of employment or other such outcomes due to the small size of the project, I cannot conclude the project will be of economic or other significance to the Aboriginal people who live in the area.
Section 39(1)(e) – The public interest in the doing of the act
Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the licence, with what may be construed as the public interest being examined in the Tribunals determination of Santos v Gomeroi at [270]-[275].
The State contends that the public interest will be served by the grant of the lease given economic benefits that may accrue at a local level, even if there is no significant benefit at a State or national level.[22] Aside from this, no material has been put before me by Watarra or Mr Bell on the public interest or otherwise, in the doing of the act.
[22] State contentions [51].
In light of this, I agree with the State that public interest is served, if only in a minor way, by the grant of the lease due to local economic benefits.
Section 39(1)(f) - Other relevant matters?
Aside from those matters that are mandatory considerations in s 39 of the Native Title Act, I am of the view there are no other relevant matters that require consideration.
Section 39(4) – Agreements to be given effect
There are no agreements or issues relevant to the determination that the parties agree on that the Tribunal is aware of. As such, there are no agreements or matters of agreement to be given consideration or effect.
Conditions
Given the lack of submissions from Watarra, particularly in regard to s 39(1)(b), and having regard to the limited nature of this future act and the activities that will arise from it, I have formed the view it would not be reasonable to impose conditions on this occasion.
CONCLUSION
The lack of evidence from Watarra has allowed only limited examination of the s 39 criteria, particularly s 39(1)(a). Even without this evidence however, it can be seen that the future act is limited in size and scope, and will have limited effect.
Even so, I have taken into account each of the mandatory criteria with equal weight and considered the nature of the act and the information before me in regard to each of these criteria. Having taken this consideration and having regard to the findings in each criteria, I have formed the view the act may be done without conditions.
DETERMINATION
I determine that the act may be done, namely, that mining lease M 37/1357 may be granted to Mr Rodney Wayne Bell.
Mr Glen Kelly
Member
14 July 2025
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