IN THE MATTER of an inquiry into future act determination applications

Wangkatja Tjungula Aboriginal Corporation RNTBC (WCD2023/002)

DECISION ON PRELIMINARY ISSUE OF WHETHER A HEARING IS REQUIRED

Native title - future acts - s 35 applications for determination - mining lease application - exploration licence application -preliminary issue - whether a hearing is required - hearing required to provide opportunity for on-country evidence, cross examination and closing submissions

Native Title Act 1993 (Cth) ss 39, 109, 151

Raymond Ashwin & Ors on behalf of Wutha/Western Australia/West Coast Geoscience Pty Ltd, [2013] NNTTA 34 ('Ashwin')

Page v Teelow and Another [2002] NNTTA 17; [2002] NNTTA 17; (2002) 169 FLR 62 ('Page')

Matthew Offer, State Solicitor's Office; Simon Gamble, Department of Mines, Petroleum and Exploration

• [1] Before the Tribunal for inquiry are two future act determination applications. The first is brought by Saturn Metals Limited in respect of the proposed grant by the State of Western Australia of mining lease M 31/496. The second is brought by Wangtkatja Tjungula Aboriginal Corporation RNTBC in respect of the proposed grant by the State of exploration licence E 31/1340.
• [2] The areas of these proposed tenements fall wholly (in the case of E 31/1340) or substantially (in the case of M 31/496) within the area of the Lake Raeside Registered Site (#2708).
• [3] The proposed tenements comprise part of Saturn's Apollo Hill project, which involves the proposed construction and establishment of an open-cut gold mine and associated mine infrastructure within the area of the Lake Raeside Registered Site, as well as proposed exploration activities within the area of the Lake Raeside Registered Site.
• [4] A preliminary issue has arisen for decision by the Tribunal; namely, whether a hearing, including in the form of an on-country hearing, is required in the context of this inquiry.

• [5] The issue of whether a hearing in the form of an on-country hearing is required in the context of this inquiry has been in the contemplation of the parties and the Tribunal since 24 July 2025, when WTAC relevantly advised the other parties and the Tribunal by email that it would be seeking an on-country hearing as part of the inquiry process.
• [6] Broadly speaking, in the course of the inquiry to date, WTAC has consistently contended that a hearing in the form of an on-country hearing is necessary, whereas Saturn and the State have each consistently contended that a hearing in the form of an on-country hearing is not necessary.
• [7] The nuances of this issue and the positions of the parties are more fully explained below.

• [8] At the first preliminary conference in these matters held on 29 July 2025, WTAC contended that the issue of whether a hearing in the form of an on-country hearing is necessary in this inquiry should be decided before the provision of the parties' written evidence and contentions, whereas Saturn and the State contended that this issue should be decided after the provision of the parties' written evidence and contentions.
• [9] I decided that this issue should be progressed through the circulation of party proposals and contentions and an opportunity for the parties to make oral submissions in a case management conference, following which the issue, including any next steps and any further directions, could be decided.
• [10] Consistent with this, on 11 August 2025, I made directions which provided an opportunity for:
  • WTAC to provide the other parties and the Tribunal with its on-country hearing proposal, together with its primary evidence and contentions, by 7 October 2025 (Direction 4 dated 11 August 2025, as amended);
  • Saturn and the State to provide any response to WTAC's on-country hearing proposal, and any alternative proposal, together with their primary evidence and contentions, by 11 November 2025 (Direction 5 dated 11 August 2025, as amended);
  • further submissions to be provided by any party wishing to do so by 24 November 2025 (Direction 6 dated 11 August 2025, as amended); and
  • a case management conference to be held after the provision of the parties' written evidence and contentions to discuss WTAC's on-country hearing proposal, Saturn's and the State's responses to it, and next steps, including any further directions which may be required, on 15 December 2025 (Direction 7 dated 11 August 2025, as amended).
• [11] Each of the parties responded to this program, including by providing oral submissions at the case management conference held on 15 December 2025.
• [12] At the case management conference held on 15 December 2025, I informed the parties that I had decided that:

(a) a hearing is necessary in the context of this inquiry; and

(b) the hearing should encompass the opportunity for on-country evidence, cross examination and final oral submissions,

and that I would provide these written reasons and directions following the conference.

• [13] Having regard to the applicable legal principles, the various written contentions and material provided by the parties, as well as the oral submissions of the parties in the case management conference held on 15 December 2025, it is apparent that there are two related issues for decision:

(a) first, is a hearing necessary?

(b) and secondly, if a hearing is necessary, what should the hearing encompass and when should it be held?

• [14] For the purposes of an inquiry into a right to negotiate application the Tribunal may hold hearings: s 151(1) of the Native Title Act 1993 (Cth).
• [15] The Tribunal may make a determination in relation to a right to negotiate application by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal: s 151(2) of the NTA.
• [16] However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties: s 151(2) of the NTA.
• [17] The key principles and considerations relevant to ss 151(1) and 151(2) were summarised by the Tribunal in Ashwin at [17]:

The power of the Tribunal to determine whether it should hold a hearing in relation to a particular application, or determine the matter on the papers is contained in s 151(2) of the NTA. The Federal Court has found that "the patent intention of this power is that the Tribunal can decide to proceed on the papers if it satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of the parties". See Little v State of Western Australia [2001] FCA 1706 per Nicholson J at 55. Notwithstanding that discretion s 151(2) makes it clear that the Tribunal "must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties". As was found by Member Sosso J in Michael Page/Michael Teelow/Northern Territory [2002] NNTTA 17 at 23 it is mandatory for the Tribunal to hold a hearing unless it is of the view that the documents and other evidence sufficiently address the issues to be decided. However, the Tribunal may take into account considerations of cost, delay and inconvenience to the parties of a full hearing as a relevant but not decisive factor, see Michael Page at 34 and Dorothy Tucker and Ors/Western Australia/FraserX Pty Ltd [2003] NNTTA 126 per Daniel O'Dea at 10 to 17.

• [18] Having regard to WTAC's material, including proposed draft directions, it is apparent that WTAC relevantly seeks a hearing for three reasons.
• [19] First, WTAC seeks a hearing to provide an opportunity for its Aboriginal witnesses to provide oral evidence on-country at locations within the areas of M 31/496 and E 31/1340 and surrounds.
• [20] WTAC says an on-country hearing is necessary due to (among other considerations) the importance of the Lake Raeside and Porkies Swamp sites to the native title holders, the scale and nature of the impacts from Saturn's proposed mining and exploration operations on these sites (in particular), and the need for the Tribunal to see and understand these matters in situ.
• [21] Materially, WTAC says there is a contest, or potentially a contest, between WTAC's Aboriginal witnesses and Saturn's Aboriginal witnesses, in particular about certain matters but particularly matters pertaining to Lake Raeside (in particular) and the effect of the project on the lake, and that such matters are best resolved by Aboriginal evidence at the locations in question.
• [22] In its written contentions, WTAC seeks an on-country hearing so that its Aboriginal witnesses can provide oral evidence. However, at the case management conference held on 15 December 2025, WTAC indicated it has no objection to Saturn's Aboriginal witnesses also being permitted to provide oral evidence on-country, in common with WTAC's Aboriginal witnesses, should Saturn's Aboriginal witnesses wish to do so.
• [23] Secondly, WTAC seeks a hearing to provide an opportunity for Saturn's witnesses to be cross-examined.
• [24] In its written contentions, WTAC says that absent an opportunity for it to cross-examine Saturn's witnesses, especially some of Saturn's Aboriginal witnesses and Saturn's consultant anthropologist, the Tribunal may be left in doubt as to how to reconcile the evidence of Saturn's witnesses with the evidence of WTAC's witnesses, and that any reliance on the evidence of Saturn's witnesses in preference to the evidence of WTAC's witnesses on contested matters would be unfair.
• [25] Further, WTAC indicates it has no objection to its Aboriginal witnesses also being cross-examined. At the case management conference held on 15 December 2025, WTAC confirmed this position and advised that it extends to all of its witnesses.
• [26] Lastly, WTAC seeks a hearing to provide an opportunity for closing oral submissions.
• [27] Overall, WTAC says that these matters are ripe for an on-country hearing because the project is very significant, the sites are very significant, there are numerous Aboriginal witnesses with different accounts which need to be tested in cross-examination, and that only through an on-country hearing will the Tribunal be able to assess all of the evidence and reach a considered conclusion.
• [28] Importantly in my view, WTAC has gone to some lengths in its written contentions to identify what it says are the factual matters on which the Aboriginal witnesses, in particular, differ, or, depending on the view taken, accord, which I consider to be examples of matters which are apt to be elaborated upon through location-specific on-county evidence and explored in cross-examination. WTAC has also identified potential sites and locations where on-country evidence would be given and the likely WTAC Aboriginal witnesses who would especially seek to do so.
• [29] Additionally, prior to the case management conference held on 15 December 2025, WTAC provided draft directions specifying that the hearing should be comprised of one day of on-country evidence within the areas of M 31/496 and E 31/1340 and surrounds, three days of cross-examination at Leonora and Perth, and one day of closing oral submissions in Perth. This proposal was discussed in the case management conference held on 15 December 2025 and is a matter I discuss further below.

A hearing must be held in the context of this inquiry

• [30] I consider that where a party seeks an opportunity for oral testimony in the form of cross-examination to test the evidence of witnesses who have given different accounts, and the party has provided cogent reasons why this is necessary, as WTAC has done here in my view, I consider s 151(2) of the NTA mandates the holding of a hearing for at least this purpose. As the matter currently stands, there is doubt in my mind about the adequacy of certain aspects of the material before the Tribunal and I consider this inadequacy can be addressed by oral testimony in the form of cross-examination: see Page at [23].
• [31] For the same reason, I consider oral testimony in the form of location-specific on-country evidence from WTAC's Aboriginal witnesses and Saturn's Aboriginal witnesses (if they wish to avail themselves of this opportunity) at locations within the areas of M 31/496 and E 31/1340 and surrounds, would also be of assistance to me having regard to the material provided to the Tribunal and the issues I am required to determine, including the matters identified in ss 39(1)(a) and (b) of the NTA, and I consider that reasonable opportunity for this form of oral testimony is also necessary and appropriate in the circumstances of this inquiry.
• [32] Similarly, I consider that reasonable opportunity for closing oral submissions would also be of assistance to me and, importantly, will allow all parties the opportunity to be heard after the completion of the on-country evidence and cross-examination phases of the hearing.
• [33] I have carefully considered the written contentions and oral submissions of Saturn and the State, respectively, opposing the holding of a hearing, including in the form of an on-country hearing, in the context of this inquiry. In the result, no matter they have raised dissuades me of my threshold view that, having regard to the material which has been provided and the issues I am required to determine, I must hold a hearing in this inquiry and that this hearing should provide opportunity for location-specific on-country evidence, cross-examination and closing oral submissions.
• [34] However, a number of aspects of Saturn's and the State's written contentions are relevant to the question of what the hearing should otherwise encompass.
• [35] Both Saturn and the State have raised concerns in their written contentions and oral submissions in relation to the cost of, and time required for, a hearing but particularly an on-county hearing, in the context of the Tribunal's objectives as stated in s 109(1) of the NTA. The cost of a hearing and the time required for it to occur are matters which have informed the Tribunal's case management approach in this inquiry since the case management conference in the matter on 11 August 2025, when I directed that the question of whether a hearing in the form of an on-county hearing is required in the context of this inquiry was best answered after the parties' documents and other material had been provided, when an assessment could more properly be made about whether the applications could be determined on the papers. Consistent with this case management approach, and for the reasons already mentioned, I have determined that a hearing is required.
• [36] Concerns in relation to the cost of, and time required for, a hearing, and, also, the scope of any on-country evidence to be adduced should I conclude an on-country hearing is necessary, were also matters emphasised by Saturn and the State in the case management conference held on 15 December 2025. These concerns were discussed at the conference as material considerations. In the result, having consulted with the parties during the conference, I am satisfied that the timing of the hearing can and should be brought forward from April-May 2026, as proposed by WTAC in its draft directions, to March-April 2026. This view is variously reflected in Direction 1 below. I am also satisfied that the scope of the on-country hearing component should be limited to a maximum of one day and by the qualification that the evidence to be adduced should be location-specific. This view is reflected in Direction 1(a) below.
• [37] In the case management conference held on 15 December 2025, I also expressed the view that location-specific cross-examination should be permitted at the time the location-specific on-country evidence is adduced. My view in this regard has not changed and is reflected in Direction 1(a) below.
• [38] A further relevant concern raised by Saturn in its written contentions is that, if the Tribunal is minded to direct the holding of an on-country hearing, then all of Saturn's witnesses should be permitted to attend the hearing. This concern was discussed in the case management conference held on 15 December 2025. In the result, my understanding of the consensus reached in the conference was that all of Saturn's witnesses should be permitted to attend the on-country hearing and, further, that Saturn's Aboriginal witnesses should also be given the opportunity to provide location-specific on-county evidence in common with WTAC's witnesses, should they wish to do so.
• [39] The issue of whether Saturn's other witnesses, for example Saturn's consultant anthropologist and Saturn's managing director, should be given the opportunity to provide location-specific evidence during the on-country hearing was also discussed during the conference, with to my understanding no objection being indicated by the State but with some concerns expressed by WTAC. In the result, I indicated to the parties that I would be open to Saturn's other (i.e. non-Indigenous) witnesses giving location-specific evidence to the extent it would assist to facilitate the efficient conduct of the on-country hearing and subject to the outcome of the further case management conference to discuss and agree the witnesses for the hearing, among other matters, which is scheduled for 13 February 2026. This view is reflected in Directions 1(a) and 2 below.
• [40] A further relevant concern of Saturn in its written contentions is that an on-country hearing will prejudice Saturn because Saturn will not have the opportunity to consider and respond to any new evidence that is provided at the hearing, and that this will deny Saturn procedural fairness which requires that Saturn has a reasonable opportunity to address WTAC's evidence and assertions prior to a decision being made that affects Saturn's rights and interests. I have taken this concern into account when determining that the on-country hearing should be scheduled for one day only, the evidence to be adduced in the on-country hearing should be location-specific, Saturn's Aboriginal witnesses should be permitted to give on-country evidence in common with WTAC's Aboriginal witnesses, limited location-specific cross-examination should be permitted during the on-county hearing phase of the hearing, three days should be allocated for the cross-examination-phase of the hearing, and all parties should have the opportunity to provide final oral submissions at a reasonable time after the completion of the on-country hearing (see generally the Directions below).
• [41] A further relevant matter which arose in the case management conference held on 15 December 2025, and which bears consideration, is the scope of the witnesses who should be involved in the on-country hearing and cross-examination phases of the hearing. During the conference, WTAC indicated that it is at least possible that WTAC will seek to adduce on-country evidence from native title parties who have not previously provided an affidavit or statement on behalf of WTAC in the course of the inquiry to date. This proposition was opposed by Saturn and the State, and in the result, I indicated to the parties that I consider the only witnesses who should be involved in the on-country hearing and cross-examination phases of the hearing are those witnesses who have already provided an affidavit or statement or video evidence in the course of the inquiry to date. Accordingly, in the Directions below, the expressions "WTAC's Aboriginal witnesses", "WTAC's witnesses" (i.e. WTAC's Aboriginal and non-Indigenous witnesses), "Saturn's Aboriginal witnesses", and "Saturn's witnesses" (i.e. Saturn's Aboriginal and non-Indigenous witnesses) extend only to the relevant witnesses who have already provided an affidavit or statement or video evidence in the course of this inquiry to date and these expressions should be read accordingly.
• [42] Finally, in the case management conference held on 15 December 2025 my understanding of the consensus of the parties was that, subject to the outcome of the further case management conference to confirm the witnesses to be involved in the on-country evidence and cross-examination phases of the hearing, among other matters, which is programmed for 13 February 2026 (see Direction 2 below), the dates and locations referred to in Directions 1, 2 and 3 below are appropriate on the information currently available.

• [43] For foregoing reasons, I have determined that:

(a) I must hold a hearing in the circumstances of this inquiry;

(b) the hearing should encompass:

1. a hearing of up to one day's duration within the areas of M 31/496 and E 31/1340 and surrounds to:

   1. provide opportunity for location-specific on-country evidence to be given by:

      1. WTAC's Aboriginal witnesses;

      2. Saturn's Aboriginal witnesses; and

      3. any other witness who has provided a statement or affidavit in this inquiry and who is given leave by the Tribunal to provide such evidence in the course of the process identified in Directions 2, 3 and 4 below; and

      4. provide opportunity for contemporaneous location-specific cross-examination; and

   2. a hearing of up to three days' duration for cross-examination of WTAC's witnesses (i.e. WTAC's Aboriginal witnesses and WTAC's non-Indigenous witnesses) and Saturn's witnesses (i.e. Saturn's Aboriginal witnesses and Saturn's non-Indigenous witnesses) at Leonora and Perth; and

   3. a hearing of up to one day's duration for closing submissions in Perth; and

   4. the hearing should commence no later than March 2026 and be completed by no later than April 2026.

1. Pending further direction of the Tribunal including in the course of the process identified in Directions 2, 3 and 4, the applications are listed for hearing:

(a) within the areas of M 31/496 and E 31/1340 and surrounds for: > > > (i) the hearing of location-specific on-country evidence to be adduced by: > > > > * (A) the native title party's Aboriginal witnesses; > > * (B) the grantee party's Aboriginal witnesses; and > > * (C) any other witness who has already provided a statement or affidavit in this inquiry and who is given leave by the Tribunal to provide such evidence in the course of the process identified in Directions 2, 3 and 4 below; and > > > > (ii) location-specific cross-examination,

(b) in Leonora for cross-examination of:

(i) the native title party's witnesses; and

(ii) the grantee party's witnesses,

(c) in Perth for cross-examination of:

(i) the native title party's witnesses; and

(ii) the grantee party's witnesses,

for two (2) days on Thursday, 26 March 2026 and Friday, 27 March 2026; and

(d) in Perth for closing oral submissions for one day on a date to be fixed in the week beginning Monday, 13 April 2026.

1. The applications are listed at 9:30 am (AWST) on Friday, 13 February 2026 for a further Member's Case Management Conference, to be conducted via remote access technology, to:

(a) confirm the witnesses proposed to give on-country evidence and/or required to be made available for cross-examination; and

(b) discuss, in all respects, the program for the hearing, including any availability issues, the specific locations to be visited, the timing and time allocated for each witness at each specific location, and the detailed logistics of the hearing, including any land access considerations.

1. On or before Friday, 20 February 2026, the parties are to:

(a) use their best endeavours to jointly develop and agree a detailed hearing schedule reflective of the matters identified in the Member's Case Management Conference identified in Direction 2 above, and to provide this schedule to the Tribunal; and

(b) provide to the Tribunal and each other party an outline of the evidence of each witness proposing to give on-country evidence.

1. The applications are provisionally listed at 2:00 pm (AWST) on Tuesday, 24 February 2026, for a further Member's Case Management Conference to be conducted via remote access technology to discuss any further matter reasonably arising in connection with the hearing and/or any further directions which may be reasonably required in connection with the hearing.
2. There be liberty to apply.