IN THE MATTER of the Native Title Act 1993 (Cth)

IN THE MATTER of an inquiry into a future act determination application

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2004/001)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

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

Mining Act 1978 (WA) ss 57, 61, 66

Native Title Act 1993 (Cth) ss 31, 35, 36, 38, 39, 151

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 RNTBC v Buxton Resources Ltd and Another [2019] NNTTA 119 (Wanjina-Wunggurr v Buxton #1)

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Ltd and Another [2020] NNTTA 48 (Wanjina-Wunggurr v Buxton #2)

Western Australia v Roberta Vera Thomas & Ors (1996) 133 FLR 124; [1996] NNTTA 30 (Western Australia v Thomas)

Mr Armando Tovar, Department of Energy, Mines, Industry Regulation & Safety

• [1] This decision concerns an application made to the National Native Title Tribunal by Buxton Resources Limited seeking a future act determination that exploration licences E04/2611, E04/2648, E04/2649 and E04/2651 may be granted.
• [2] The licences are located as follows:
  • E04/2611 is located in Western Australia's Kimberley region, approximately 131 km east of Derby.
  • E04/2648 is located in Western Australia's Kimberley region, approximately 133 km east of Derby.
  • E04/2649 is located in Western Australia's Kimberley region, approximately 145 km east of Derby.
  • E04/2651 is located in Western Australia's Kimberley region, approximately 140 km east of Derby.
• [3] Wanjina-Wunggurr Aboriginal Corporation RNTBC holds native title in trust for the Wanjina-Wunggurr Wilinggin People over the whole of each licence area.[1]
• [4] Section 31(1)(b) of the Native Title Act 1993 (Cth) requires the parties to negotiate in good faith with a view to obtaining the agreement of the relevant native title party to the doing of the particular act in question, in this case the grant of the licences. If, after six months from the notification of the proposed future act, the parties are unable to reach, any negotiation party may make an application to the Tribunal for a determination that the act may be done.
• [5] Per s 36(2) of the Native Title Act, I must not make a determination on the application if any negotiation party satisfies me that the State or the relevant grantee party did not negotiate in good faith. In this case, there has been no allegation that the State or Buxton have failed to negotiate in good faith.
• [6] Buxton 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, as President of the Tribunal I appointed myself to constitute the Tribunal for the purpose of holding an inquiry into the applications.
• [7] The licences were previously the subject of expedited procedure objection applications.[2] In those matters Member Helen Shurven determined that the Expedited Procedure did not apply as the grant of the licences was likely to cause interference with areas or sites of particular significance to Wanjina-Wunggurr in accordance with s 237(b) of the Native Title Act.
• [8] The applications of Buxton are unopposed.

• [9] Section 38(1) 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.

• [10] 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 Buxton 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 Buxton and Wanjina-Wunggurr.
• [11] 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.[3]
• [12] 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.[4]
• [13] In this case, Buxton 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.

• [14] 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 Buxton or the State. Directions setting the timeline for the inquiry were subsequently issued. On 14 February 2025, I granted a one week extension to the State and Buxton and issued amended directions.
• [15] The State provided initial materials concerning the licences and lodged a joint submission with Buxton. Buxton 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.
• [16] Wanjina-Wunggurr also lodged submissions (Wanjina-Wunggurr submissions) which neither gave their consent to nor opposed a determination by the Tribunal under s 38 of the Native Title Act.

• [17] The licences are exploration licences proposed 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.
• [18] In their initial materials the State has provided Buxton's initial work programs for each of the licences. These work programs are largely similar in style and show that Buxton intends to target copper, nickel, gold, lithium and base metals. The work programs show that during the first year Buxton intends to undertake a literature review and acquire a 'high-quality airborne magnetic and radiometric dataset'.[5] In year 2, Buxton will 'implement an infill auger/AC drilling campaign to test positive reconnaissance results in Year 1' and further works will depend on the results coming from years 1 and 2.[6]
• [19] Materials from the State indicate that there are no registered heritage sites lying within the proposed licences, although there are a number in the vicinity, particularly of E04/2611 and E04/2651.[7] The State's initial materials show that there is one lodged site within E04/2611, described as Artefacts/Scatter.[8]

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)

• [20] In their submissions Wanjina-Wunggurr provides that they have reached an agreement with Buxton that they consider 'addresses each of the matters set out in sections 39(1)(a)-(b) of the Act'.[9] This is echoed by the State and Buxton.[10]
• [21] In relation to s 39(1)(a) Wanjina-Wunggurr submits the Tribunal should take into account that they have reached an agreement with Buxton that they consider addresses each of the matters set out in ss 39(1)(a).[11] Similarly, Buxton submits the matters in s 39(1)(a) have been taken into account and are addressed in the ancillary agreement.[12]
• [22] Turning to s 39(1)(b), Buxton 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 been taken into account by Buxton and addressed in the ancillary agreement.[13] This is also confirmed by Wanjina-Wunggurr in their submission.[14]
• [23] The State confirms its reliance on the statements of Buxton 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.[15]
• [24] Section 39(4) of the Native Title Act requires I must take into account any agreement between the parties and, with the consent of the parties and to the extent that agreement relates to the matters in s 39(1), need not take those s 39(1) matters which are agreed into account when making my determination.

Economic or other significance of the licences: s 39(1)(c)

• [25] Section 39(1)(c) requires that I 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.
• [26] Wanjina-Wunggurr makes no direct submission on s 39(1)(c). Buxton submits the grant of the licences 'is of economic significance to Australia, the State of Western Australia, the area in which the Tenements is located and the Aboriginal people who live in that area and that this may be taken into account'.[16] As previously noted at [23] the State relies on the statements [17] Buxton.17
• [27] Given Wanjina-Wunggurr has not made direct contentions on s 39(1)(c) I cannot assume agreement on s 39(1)(c). This requires an evaluation of the economic or other significance of the licences, rather than consideration of the significance of exploration or mining generally.[18]
• [28] 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.[19]

Public interest in the grant of the licences: s 39(1)(e)

• [29] Section 39(1)(e) requires me to take into account whether there is any public interest in the grant of the licences. The Tribunal has previously found this 'imports a discretionary value judgment made by reference to undefined factual matters, and only confined by the subject matter, scope and purpose of the legislation' and that there 'can be a public interest in the act proceeding or not proceeding, and the public interest is not limited to economic considerations'.[20] The Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry.[21]
• [30] Wanjina-Wunggurr makes no contentions concerning s 39(1)(e). Buxton submits that public interest supports the grant of the licences and the State relies on this statement.[22]

Any other matter the Tribunal considers relevant: s 39(1)(f)

• [31] The parties make no submissions concerning s 39(1)(f).

Should the licences be granted and, if so, should conditions be applied?

• [32] Having regard to my consideration of the matters in s 39, I am satisfied that the licences may be granted.
• [33] I have reviewed 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.

• [34] I determine that the grant of exploration licences E04/2611, E04/2648, E04/2649 and E04/2651 may be done.

[2] See Wanjina-Wunggurr v Buxton #1 and Wanjina-Wunggurr v Buxton #2.

[3] See Western Australia v Thomas, [166].

[4] Foster v Copper Strike, [27] - [33].

[5] See for example initial materials, 11.

[6] See for example initial materials, 11.

[9] Wanjina-Wunggurr submissions, [4].

[11] Wanjina-Wunggurr submissions, [6].

[14] Wanjina-Wunggurr submissions, [5].

[18] See Western Australia v Thomas, [175] - [176].

[19] Western Australia v Thomas, [175].

[20] Minister for Lands v Thalanyji, [266].

[21] Western Australia v Thomas, [176].

[22] Joint submissions, [11], [13].