William Gerard Tully v Boonthamurra Native Title Aboriginal Corporation... [2025] NNTTA 21 | Case summary

William Gerard Tully v Boonthamurra Native Title Aboriginal Corporation... [2025] NNTTA 21 | Case summary | Zoe

[45]

[22] Despite these apparent setbacks, the parties continued to discuss a proposed meeting. Between 23 July 2024 and 8 August 2024, parties exchanged correspondence relating to the costs of a meeting between Boonthamurra and Mr Tully. Boonthamurra put forward two alternate budgets; one for a meeting in Eromanga (estimated at approximately $22,000 plus GST) and the other in Brisbane (estimated at approximately $14,500 plus GST). Boonthamurra said it was also liaising with another proponent about the possibility of cost sharing. Mr Phillips confirmed Mr Tully was unable to afford the budgets put forward by Boonthamurra and proposed, as an alternative, an hour meeting by teleconference with one person from Boonthamurra and Ms Matthews as Boonthamurra's representative.
[23] On 21 August 2024, Ms Matthews confirmed Boonthamurra was interested in meeting with Mr Tully provided the meeting occurred on country with three directors from Boonthamurra and one legal representative from QSNTS.
[24] On 15 September 2024, Mr Phillips confirmed that the new proposal would still be unaffordable for Mr Tully. Mr Phillips noted Mr Tully "still stands by his cultural heritage inspection" but suggested, in an effort to resolve this matter, Mr Tully could "utilise his [two] Boonthamurra [e]mployees to undertake a [c]ultural [h]eritage [i]nspection at a rate agreed between [him] and those persons". Mr Phillips agreed to prepare a draft agreement for Boonthamurra's consideration if it was willing to consider this proposal.
[25] On 23 September 2024, Ms Matthews confirmed Boonthamurra maintained its position that there should be a meeting between the parties to negotiate this matter. Ms Matthews acknowledged Mr Tully was unable to fund the meeting proposed by Boonthamurra which, she said, "was a significant compromise" and requested Mr Tully to advise on what terms he would be willing to fund a meeting, noting more than one Boonthamurra representative would be required to attend. Ms Matthews noted Mr Tully's proposal regarding the cultural heritage inspection could be discussed at the meeting but that it would be difficult for Boonthamurra to agree to.
[26] On 30 September 2024, Mr Phillips advised that Mr Tully had provided a proposal for a meeting which had been rejected by Boonthamurra. Mr Phillips said that, because there had been no progress, he had been instructed to apply to the Tribunal for a future act determination.
[27] On 4 October 2024, Ms Matthews provided Mr Phillips with a brief history of negotiations, noting Mr Tully had not engaged in good faith negotiations and stating his position on funding a meeting was unreasonable. Ms Matthews referred to Boonthamurra's alternative meeting proposal and noted Boonthamurra was willing to compromise on a budget so requested Mr Phillips seek instructions on an alternative meeting proposal and to reconsider applying for a future act determination at this stage.
[28] On 6 October 2024, Mr Phillips advised Ms Matthews that he had been instructed to lodge this application.

[48]

[31] A number of Boonthamurra's complaints concerning the manner in which the negotiation proceeded and Mr Tully's efforts at negotiation are interrelated and it is convenient to deal with them together.
[32] Specifically, Boonthamurra says that Mr Tully's failure to provide any feedback on the Ancillary Agreement unduly delayed the negotiations.
[33] Boonthamurra submits that it is Mr Tully's obligation to progress the negotiations and/or engage external assistance to facilitate negotiations. I note that all parties share the obligation to negotiate in good faith. Also, it is not clear what Boonthamurra means by external assistance. Mr Tully did enlist the assistance of Mr Phillips and it was Mr Tully who requested mediation by the Tribunal in June 2024. It was Boonthamurra which said it was not ready to participate in mediation.
[34] Boonthamurra also complains that it was not until April 2024 that Mr Tully gave any substantive response to the Ancillary Agreement, when he said it was too onerous. Additionally, Boonthamurra argues that Mr Tully chose not to provide feedback then, whereas more specific feedback has been provided in Mr Tully's contentions. This is not entirely accurate in my view. Mr Tully repeatedly expressed his view about the Ancillary Agreement being unsuitable from the outset, referring to it as "a bit overwhelming" in July 2023, although it was only in April 2024 that the word "onerous" was used. During that time, Mr Tully did suggest the parties could look to other examples, although these were not agreeable to Boonthamurra. Further, the argument Mr Tully makes in his contentions is that to mark up the agreement would have been virtually meaningless because of the extent to which it would have been amended to accommodate his reliance on the Duty of Care Guidelines.
[35] For whatever reason, the parties seemed unable to progress any detailed discussion of the issues for an agreement and there is no evidence that either party sought to interrogate the other's position in any meaningful way. Just as Mr Tully was repeating his views, so too was Boonthamurra mostly repeating its request for a marked-up response. On the evidence before me, neither party appears to have picked up the telephone to explore the issues and a way forward which seems unfortunate, as does the missed opportunity of mediation.
[36] However, I do not read Mr Tully's approach as being intentionally obtuse or unresponsive because he did proffer alternatives and explain the reasons for his preference to rely on the Duty of Care Guidelines.
[37] Boonthamurra also argues that Mr Tully failed to make any reasonable proposals or counteroffers regarding a meeting between the parties. Mr Tully had requested a meeting with Boonthamurra representatives as early as 30 October 2023 and this request was repeated on multiple occasions. After Ms Matthews became the relevant representative for Boonthamurra, Mr Tully again made a request for a meeting on 11 April 2024.
[38] Subsequent discussions regarding a meeting collapsed over costs. Mr Tully says that he was seeking an informal meeting and the scale of meeting costs proposed by Boonthamurra was exorbitant. Boonthamurra says that it was responding to Mr Tully's suggestions for a meeting in Quilpie or Eromanga (with Boonthamurra proposing Brisbane as a cheaper alternative) and that it also made a reasonable counteroffer when Mr Tully indicated he could not fund a meeting of the scale proposed. It also proposed cost sharing measures with other proponents which is not uncommon. Mr Tully did offer to fund a teleconference with one Boonthamurra representative and Ms Matthews but once that approach was not accepted, the negotiations came to an end.
[39] In its reply to the State's contentions, Boonthamurra acknowledges that there is no obligation on any one party to fund a meeting but says that Mr Tully's conduct should be considered as a whole and the position regarding funding should also be considered in light of more recent authorities such as De Roma which came after the introduction of s 60AB of the Native Title Act. Overall, I do not disagree with those submissions, save that it is the entirety of the negotiations that I must view as a whole.
[40] Boonthamurra also took issue with Mr Phillips raising the possibility of taking a similar approach to other Boonthamurra agreements he had worked on and says that Mr Phillips inappropriately disclosed the names of other proponents. Boonthamurra contends that the reliance on and disclosure of confidential information is indicative of a failure to negotiate in good faith, although at the hearing it acknowledged that this issue on its own would not be critical but is one piece of evidence which could be taken with other matters.
[41] I am not persuaded by these arguments in the context of this matter. Mr Phillips says he did not discuss the terms of these agreements with Mr Tully, a point which Boonthamurra questions in light of the agency relationship between the two. However, Boonthamurra makes only generalised assertions on this point and there is no evidence regarding any breach of confidentiality. It is not clear at all that Mr Tully identifying specific grantee parties was a breach of anything, when presumably those individuals would have been named in s 29 notices and in the State's tenement register. More to the point, Mr Phillips is a peak body representative for opal miners with experience in negotiating for various grantee parties. He was trying to find a path to agreement and it was in fact Mr Phillips who first raised the issue of confidentiality, so he was alive to the issue. It might have been possible for Mr Phillips to suggest suitable terms based on his experience without reference to any prior agreement or a breach of any confidential information but he was, in my view, simply looking for a short cut to common ground and a suitable way forward. However, the suggested approach did not proceed past the question of confidentiality.

[51]

[45] Mr Tully contends that the protection of cultural heritage can be a shared responsibility and asserts that what he calls the ""paternal and commercial" approach" taken by Boonthamurra's legal representative is not the only approach to resolution.
[46] With respect to the application of the Duty of Care Guidelines, Mr Tully contends that much of the area of the mining claim has been subject to significant ground disturbance which he says would place it in Category 4 of the Duty of Care Guidelines. Mr Tully goes on to describe undertaking three cultural heritage inspections of the mining claim area, one as landowner in assessing how to rehabilitate the area and twice related to pegging the mining claim.
[47] Boonthamurra disputes Mr Tully's assessment under the Duty of Care Guidelines and points out that the whole of the mining claim area has not been subject to significant ground disturbance. Boonthamurra also says that Mr Tully is not qualified to make an expert determination of the category in question.
[48] I do not accept Boonthamurra's submission about Mr Tully not having the requisite expertise to form a view about how the Duty of Care Guidelines might apply. The Duty of Care Guidelines are largely a self-assessment tool and are one way a person undertaking an activity may meet their duty of care under the ACHA. By their own terms they "identify reasonable and practicable measures for ensuring that activities are managed to avoid or minimise harm to Aboriginal cultural heritage in a way that meets the duty of care requirements". No expert determination is required. Of course, a person relying on the Duty of Care Guidelines may be wrong in their assessment, which carries significant risk for compliance with the ACHA, including penalties.
[49] The fact that the whole of the mining claim area has not been subject to prior disturbance seems evident from Mr Tully's disturbance mapping and acknowledged by Mr Phillips in his correspondence, although he described it variously as "pretty extensive" and "intensive".
[50] Even so, there is a significant difference between a proponent undertaking a self-assessment of how the Duty of Care Guidelines might apply in an area subject to previous disturbance and the good faith negotiations between the parties which are directed to obtaining a native title party's agreement to the doing of a future act. This was a distinction made by QSNTS in negotiations when it pointed out that the area of disturbance did not cover the entire area of the mining claim. Mr Tully may have formed a view that he could meet his duty of care through the application of the Duty of Care Guidelines but Boonthamurra, whose agreement he was seeking to the grant, did not share that view and wanted cultural heritage matters addressed as part of any agreement. These issues could have been further explored by the parties in the negotiation. Perhaps the previous disturbance might have been relevant to the scale of the cultural heritage protection processes ultimately agreed. Again, mediation might have assisted in exploring the options.
[51] There is also a material distinction between Mr Tully making an assessment about how the Duty of Care Guidelines might apply to enable him to meet his cultural heritage duty of care and him undertaking an inspection to determine the existence of cultural heritage in the area. The latter is not Mr Tully's assessment to make.
[52] I am not questioning Mr Tully's belief that he has knowledge and experience which may make him more informed than the average person and alive to the risk of harm to cultural heritage. However, Mr Tully is not the Aboriginal party. The Duty of Care Guidelines repeatedly state that the views of the Aboriginal party for an area are key in assessing Aboriginal cultural heritage and managing any activity likely to excavate, relocate, remove or harm Aboriginal cultural heritage. If Mr Tully truly acknowledges the role of Boonthamurra as the Aboriginal party as he submits, that should be evident from his actions.
[53] Nonetheless, while I consider Mr Tully's views on this aspect were misguided, he was clearly open to alternatives, be it inspection by his Boonthamurra workers or the alternative agreement approach raised by Mr Phillips. Again, I am not suggesting either was an appropriate solution, but the rigid views argued by Boonthamurra are not evident on the material.
[54] Therefore, while aspects of the approach undertaken by Mr Tully with respect to cultural heritage management were ill-advised, I do not think they were so unreasonable or rigid as to amount to a lack of good faith. Mr Tully was endeavouring to reach agreement within the facts as he apprehended them. He was also prepared to consider alternatives which departed from his preferred position and was open to mediation.

[55]

[56] Section 64A requires an applicant to provide certain information about a proposed mining claim to an "affected person" which is defined as an owner of land subject to the proposed mining claim or land necessary for access or the relevant local government.
[57] Section 85 of the Mineral Resources Act requires compensation with an owner to be agreed or determined by the Land Court before a mining claim may be granted.
[58] The definition of affected person and s 85 both refer to an "owner" of land. The definition of owner in the Dictionary at sch 2 to the Mineral Resources Act is exhaustive. It lists specific interest holders, such as the holders of fee simple or leasehold interests and, for present purposes,[1] does not include a registered native title body corporate (RNTBC) or registered native title claimant (RNTC).
[59] Neither of these requirements appears to have arisen as an issue during the negotiations. Rather, as explained by Ms Matthews, the genesis of the argument appears to be a September 2024 version of the then Department of Resources' Mining claim application guideline which included a footnote stating that, by operation of s 10 of the Racial Discrimination Act 1975 (Cth), an "affected person" would include a native title party. Ms Matthews also states her understanding that the same position would apply to s 85.
[60] The State says Mr Tully's compliance with s 64A is not a good faith issue as the relevant version of the guideline was not in place until September 2024, which was after Mr Tully says he had complied with s 64A and, I note, very late in the negotiations. It contends that requiring retrospective application of the guideline is unreasonable and creates an impossibility which cannot serve as a basis for a lack of good faith negotiations. In response to that issue, Boonthamurra points out that if s 10 of the Racial Discrimination Act applies, it is not dependent on the State saying so in a guideline. I do not disagree with that proposition, but I think the point the State is making is that Mr Tully's conduct must be judged in context. The evidence suggests that this was not an issue either Boonthamurra or Mr Tully were alive to before September 2024. As I said, it did not feature in the parties' discussions.
[61] In a similar vein, Mr Tully says it is disingenuous for this issue to be raised now when it was not raised in the negotiations. He says that if Boonthamurra thought this was an issue, it should have raised it at the time. There is merit in that view, and I agree with the State's contention that the issue raised by Boonthamurra does not go to Mr Tully's good faith on the facts of this case.
[62] If Mr Tully had been aware of an obligation to provide additional material to Boonthamurra and had wilfully ignored that obligation or a similar request by Boonthamurra, then that may well be a relevant consideration to the question of his good faith. However, it is evident that is not the case here. These issues have only been raised after the event.
[63] For the same reason, I do not consider that s 31(2), which provides that a party's refusal or failure to negotiate about matters unrelated to the effect of the grant on native title rights and interests does not mean that party has not negotiated in good faith (relied upon by the State) is particularly relevant. In Shell v Thalanyji, the Tribunal observed that s 31(2) should not be read too literally, but there is no evidence that Mr Tully refused or failed to negotiate about any particular issue, whether raised by Boonthamurra or otherwise.
[64] The State contends that compensation for the effect of the mining claim on native title is dealt with by the Native Title Act and not the Mineral Resources Act. It says, in any event that, any requirement to comply with s 85 is a matter for the Land Court under the Mineral Resources Act and a failure to comply would result in the grant being statute barred regardless of the outcome of this application. The State also asserts that Boonthamurra would not have the equivalent rights of an owner in this context as it holds non-exclusive rather than exclusive native title rights. Incidentally, both the State and Boonthamurra noted that questions regarding how State compensation provisions apply in relation to compensation for effect on native title is an issue presently before the Federal Court of Australia in a matter in Western Australia.
[65] The question before me is Mr Tully's good faith and, in my view, there is nothing in what has occurred in Mr Tully's efforts at compliance with the Mineral Resources Act which impugns his honesty and fair dealing. Further, as the State says and as seems to be acknowledged by Boonthamurra in its characterisation of s 85 as a precondition to grant, the question of compliance with s 85 will be a matter for the relevant decision maker to consider before grant of the mining claim. Additionally, there was nothing to stop the parties discussing the issue of payments or compensation in the negotiations as Boonthamurra argued they should. However, the negotiations did not proceed that far and there is no requirement that they do so (see Cox at [23]). Again, this was not an issue raised by Boonthamurra until this proceeding.

[57]

[66] Although I am not satisfied that the Mineral Resources Act issues raised by Boonthamurra impugn Mr Tully's good faith in the manner contended, both the State and Boonthamurra spent considerable time on this aspect of the case and the arguments covered a lot of ground and occupied much of the hearing. For the purposes of the hearing, I had also asked the parties to specifically consider ss 7, 24MD(3), 24MD(6) and 24MD(6A) of the Native Title Act and the decision in Queensland v CQLC. Mr Tully elected to defer to the other parties in relation to the legal argument.
[67] Boonthamurra correctly contends, and the State agrees, that s 24MD(6A) of the Native Title Act generally provides an RNTBC and RNTC with the same procedural rights as an owner of freehold, except, amongst other things, when the future act is one to which Subdivision P applies (as is the case here).
[68] However, Boonthamurra says the application of that provision is not relevant in this case because ss 64A and 85 of the Mineral Resources Act cannot be characterised as procedural rights, with s 64A being an obligation on a mining claim applicant and s 85 a condition on the Minister's power to grant a mining claim. Further, while the State broadly agrees with Boonthamurra's analysis of ss 24MD(6), (6A) and Subdivision P, it refers to aspects of the arguments as novel. In particular, it says that the Racial Discrimination Act is not enlivened in the manner outlined because Boonthamurra holds non-exclusive rather than exclusive native title and that it proposes to amend its guideline to reflect that view.
[69] While it is not necessary for me to form a concluded view in relation to either of those matters given my conclusions on good faith, I will briefly mention key aspects of the parties' submissions regarding the interaction of the Mineral Resources Act, Racial Discrimination Act and Native Title Act and make some general comments.
[70] Boonthamurra argues that s 24MD(6) is not directed to and does not affect the procedural rights afforded to native title holders under other State or Commonwealth legislation (relying on Malu Lamar). It says there is no indication within the Native Title Act of a statutory intention to displace rights under other statutes and so ss 24MD(6) and (6A) do not interfere with State procedures or procedural rights. Further, it says that if s 24MD(6) operated to exclude procedural rights outside of the Native Title Act and reduce procedural rights to the right to negotiate only, the conclusion in Malu Lamar could not have been made.
[71] I have some difficulties with this aspect of Boonthamurra's argument. As it contends, the Native Title Act, by s 7, largely has primacy over the Racial Discrimination Act. For acts to which s 24MD(6A) applies, the Native Title Act is arguably doing the work which might otherwise, on Boonthamurra's argument, be done by the Racial Discrimination Act. In general terms, s 24MD(6A) provides that native title parties have the same procedural rights as they would if they instead held ordinary title. However, the Native Title Act also says that is not the case for an act to which Subdivision P applies because, in such a case, a native title party has the right to negotiate in Subdivision P, failure to comply with which results in invalidity: see ss 25(4) and 28 Native Title Act. The implication is therefore that, in such a case, the rights of an ordinary title holder do not apply.
[72] This is the interpretation adopted by the Full Court of the Federal Court of Australia in Queensland v CQLC which carefully considered the interaction of all three statutes (see especially [149]-[150]) and reflects the Explanatory Memorandum to the Native Title Amendment Bill 1997 [No 2] which states at [15.13] that the procedural rights (being the rights afforded to ordinary title holders) "do not apply in these cases because other procedures [meaning Subdivision P] are applicable under the [Native Title Act]".
[73] Of course, there may be rights, other than procedural rights as defined, in relation to which s 10 of the Racial Discrimination Act is engaged or, in fact, other rights specifically afforded to native title parties under other State or Commonwealth laws. However, it seems tolerably clear that, where there is a vacuum in the rights afforded under, relevantly, State law in relation to an act to which Subdivision M applies, it is nonetheless s 24MD which dictates the applicable procedural rights, not s 10 of the Racial Discrimination Act.
[74] There does not appear to be anything in that analysis at odds with Malu Lamar, which concerned a decision infected with jurisdictional error which the Federal Court of Australia found could not validly affect native title. In that case, the Court did not consider the application of either s 24MD or the Racial Discrimination Act.

[73]

[96] Mr Wallace gives evidence regarding the Boonthamurra People's wishes for country, including the importance of rehabilitation. He also speaks of the importance of monitoring by Boonthamurra People before ground disturbance and says that the mining claim area should be cleared on foot due to the terrain.
[97] This sentiment is echoed by Boonthamurra in its contentions. It argues that, as the Aboriginal party under the ACHA, it should be involved in the assessment and management of cultural heritage in the area of the mining claim. It also argues that the mining claim should not be granted as activities conducted under it are likely to cause harm to cultural heritage. There is no evidence of any such harm, but I understand clearly that Boonthamurra is concerned about the risk of damage to cultural heritage, particularly given Mr Tully's approach to heritage assessment as I have discussed above. Further, while Mr Wallace acknowledges previous opal mining in the area, his concerns are heightened by, what he says, was a lack of cultural heritage clearances undertaken previously, coupled with his understanding that mining methods are now more "destructive".
[98] The State acknowledges Mr Wallace's concerns and Boonthamurra's wishes for county but relies upon Mr Tully's acknowledgment of Boonthamurra's role as the Aboriginal party under the ACHA, his knowledge of cultural heritage issues (which is discussed above) and the need for compliance with the Small Scale Mining Code. It says that the mining claim is not likely to interfere with any areas or sites of particular significance because of the various regulatory controls on the mining claim and Mr Tully's categorisation of the mining claim area under the Duty of Care Guidelines. Those matters are more relevant for s 39(1)(a).
[99] Additionally, Mr Tully has not shown himself to be especially concerned with Boonthamurra's role as the Aboriginal party, being content to rely on his own assessment of heritage risk. He asserts that the mining claim has been subject to significant disturbance yet, as pointed out by Boonthamurra, and as shown on Mr Tully's own mapping, only parts of the area appear to have been the subject of previous mining activity. Unless Mr Tully's activities are confined to those previously disturbed areas, the Duty of Care Guidelines would seem to require an agreement for the balance. That issue does not appear to have been considered by Mr Tully.
[100] This criterion is about Boonthamurra's wishes and interests for the area and I accept its clear interest in cultural heritage protection and management, as well as rehabilitation of the country, as expressed by Mr Wallace.

[77]

[104] Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the mining claim.
[105] This phrase confers a wide discretionary judgement. Mortimer CJ observed in Gomeroi at [221] that the scheme of the Native Title Act requires the Tribunal, "informed by the objects of the [Native Title Act] and the values set out in the Preamble", 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)".
[106] O'Bryan J, with whom the Chief Justice agreed, framed the analysis as requiring a consideration of both the public benefits and public detriments of the proposed act in order to assess whether there is any overall (or net) public interest: Gomeroi at [345].
[107] The State says the grant is in the public interest and points to previous Tribunal decisions which acknowledged exploration as central to a healthy and feasible mining industry: Carpentaria Gold at [51]; Higgins at [30]-[32]; Purse at [55].
[108] Mr Tully contends, amongst other things, that the grant of the mining claim will help reinvigorate a once vibrant regional mining community. He refers to the tradition of opal mining in the Restricted Area and his connection to these activities.
[109] Mr Tully also says that the grant is in the public interest because it is small in size, will not affect the Boonthamurra People's enjoyment of their native title rights and interests and there is no significant or tangible cultural heritage in the mining claim area. To the extent Mr Tully is here referring to the matters covered by s 39(1)(a), they are no doubt factors I have to weigh up but they do not necessarily mean there is a public benefit in the grant.
[110] It is true that 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 of Australia 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. I can accept that general proposition.
[111] Conversely, Boonthamurra says there is public interest in not granting the mining claim in order to protect cultural heritage and Boonthamurra's native title rights, and that this should be given more weight than the grant of the mining claim which will have limited, if any, significance to Australia or Queensland. It is difficult to accept this contention in the absence of any evidence regarding potential harm to cultural heritage or any effect on the enjoyment of native title rights and interests in the area, as discussed above. As I have said, I accept that Boonthamurra is concerned about the risk of harm to cultural heritage, but there is insufficient information before me to go so far as to say it is not in the public interest to grant the mining claim because of this perceived risk. That is particularly so in circumstances where the area has been mined in the past.
[112] There is no evidence of any public detriment in the grant and, overall, I accept there is some limited public interest as part of the opal mining industry. However, I do not give this criterion any significant weight.

[79]

[113] Based on the evidence and information provided by the parties, there is relatively little to go on to assist me in weighing the matters in s 39.
[114] I can accept there is some degree of public interest in the grant and limited economic benefit, but the issue is whether that outweighs the impacts on the matters affecting Boonthamurra. There is no evidence of any effect on the enjoyment of native title rights and interests in the area of the mining claim or the access route and no evidence of any areas or sites of particular significance in those areas either. However, Boonthamurra, through Mr Wallace's evidence, has clearly explained its wishes and concerns for the area, particularly regarding heritage protection measures, including as part of its social, cultural and economic structures.
[115] I understand also that these matters are of heightened concern to Boonthamurra in circumstances where Mr Tully has taken it upon himself to conduct cultural heritage inspections. I have already explained my views on that approach.
[116] In the absence of specific evidence regarding the effect of the grant on the matters in s 39(1)(a), I do not go so far as to say that the mining claim may not be granted, but Boonthamurra's concerns and wishes, as articulated by Mr Wallace, carry significant weight in my analysis, particularly in light of the unorthodox approach to cultural heritage assessments taken by Mr Tully.
[117] I am therefore of the view that the grant may be done but should be subject to conditions regarding cultural heritage protection in order to provide the required level of finality to the conclusion of this matter: Evans v Western Australia at page 214. I acknowledge that Mr Wallace also expressed a concern regarding rehabilitation but no party has addressed that issue in any meaningful way and the Small Scale Mining Code includes a range of regulatory requirements for rehabilitation, so I do not propose to impose any conditions in that respect.
[118] In accordance with s 41(1) of the Native Title Act, conditions imposed by the Tribunal take effect as if the conditions were the terms of a contract among the parties. For the conduct of a cultural heritage survey, there are clear advantages to such terms being negotiated by the parties rather than formulated by the Tribunal, but here we are.
[119] The Tribunal provided proposed draft conditions to the parties and afforded them an opportunity to comment. None of the parties opposed the proposed conditions, but each proposed relatively minor amendments. The parties also conferred on the terms of the conditions and settled several issues by agreement. The Tribunal then circulated a further version substantially in the form in Annexure A which reflected the matters agreed between the parties, addressed any issues in dispute and proposed a number of minor additional amendments for clarity. None of the parties had any further comments and I am satisfied that the conditions set out in Annexure A are appropriate. For completeness, I note that Annexure A includes two additional minor typographical or grammatical corrections to the draft last circulated to parties.

William Gerard Tully v Boonthamurra Native Title Aboriginal Corporation RNTBC and Another [2025] NNTTA 21

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (108 paragraphs)

William Gerard Tully v Boonthamurra Native Title Aboriginal Corporation RNTBC and Another [2025] NNTTA 21 (31 July 2025)

Parties

Legislation Cited (4)

Cases Cited (8)