FEDERAL COURT OF AUSTRALIA

NC (deceased) v State of Western Australia [2012] FCA 773

THE COURT ORDERS THAT:

1.    Fortescue Metals Group Ltd (ACN 002 594 872), The Pilbara Infrastructure Pty Ltd (ACN 103 096 340) and FMG Pilbara Pty Ltd (ACN 106 943 828) each be joined as a respondent to this proceeding.

2.    Service on the parties to this proceeding other than the applicant and the State of Western Australia be dispensed with.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    An application has been brought by three companies that they be joined as respondents to this proceeding. The interlocutory applicants are Fortescue Metals Group Ltd (Fortescue), The Pilbara Infrastructure Pty Ltd (TPI) and FMG Pilbara Pty Ltd (FMGP) (I will refer to these collectively as FMG unless it is necessary to stipulate a specific company).

2    The application is opposed by the Yindjibarndi Aboriginal Corporation (YAC) purportedly acting for the applicant. There is a preliminary question as to whether the YAC remains the applicant’s agent and therefore has standing to oppose the joinder applications. In light of the conclusion I have reached on FMG’s joinder applications, it is unnecessary to express a view on the question of agency at this stage.

3    The first respondent (the State) has made it clear that it does not oppose the application for joinder.

4    For reasons which follow, the joinder will be permitted.

GROUNDS FOR APPLICATION

5    Pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA) the Court may at any time join any person as a party to the proceedings if the Court is satisfied that the person’s interest may be affected by a determination in the proceedings and it is in the interests of justice to do so. ‘Interest’ is defined in s 253 NTA as follows:

interest, in relation to land or waters, means:

(a)    a legal or equitable estate or interest in the land or waters; or

(b)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i)    the land or waters; or

(ii)    an estate or interest in the land or waters; or

(c)    a restriction on the use of the land or waters, whether or not annexed to other land or waters.

6    The application for joinder is based on detailed affidavit evidence of Mr Thomas James Weaver, the Native Title Manager of Fortescue, from which it is established that TPI and FMGP are subsidiaries of Fortescue and that Fortescue is Australia’s third largest iron ore producer. FMG is pursuing a mining development called the Solomon Hub Expansion Project (the Solomon Project). The Solomon Project lies within the claim area. The planned capital expenditure of the Solomon Project exceeds AUD3 billion.

7    In addition, FMG is developing the Anketell Project which will include the construction of a heavy gauge railway from the Solomon Project to a port to be built at Anketell near Roebourne in Western Australia (the Anketell Rail Extension). TPI holds a Special Rail License which extends into the claim area. The licence entitles it to construct and operate a heavy gauge railway. It is also applying for four miscellaneous licences partly within the claim area applied in connection with the Anketell Rail Extension.

8    FMGP is the holder of some 14 mining tenements lying wholly or partly within the claim area. FMGP has also applied for over 20 more mining tenements which also lie partly or wholly in the claim area.

9    Ignoring the interests of the subsidiaries, Fortescue is the applicant for exploration licence E47/1319 which lies wholly within the claim area.

10    On 7 February 2012, the National Native Title Tribunal (the NNTT) determined that E47/1319 may be granted in a decision FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia, [2012] NNTTA 11.

11    Fortescue submits that as an applicant for an exploration licence it has sufficient interest for the purpose of s 84(5) NTA. It relies upon the observations of French J (as his Honour then was) in Walker v Western Australia (2002) 191 ALR 654 (at [20]) where his Honour said:

It may be seen from the preceding that AngloGold has no legal or equitable interest in relation to the land by virtue of having lodged applications for exploration licences, notwithstanding that recommendations have been made for their approval. In Members of the Yorta Yorta Aboriginal Community v State of Victoria (unrep., Fed Court, 7 June 1996), Olney J held an application for an exploration licence not to constitute a sufficient interest for joinder of the Western Mining Corporation as a party in a native title determination application. His Honour said:

"Even on the basis of the fairly wide construction which I have applied to the words "the person's interests" ... I do not think that the mere desire of an individual to obtain a licence, which may or may not be granted by the licensing authority, amounts to an interest which has sufficient substance to be caught by the words of s 84(2). If the mere lodging of an application for an exploration licence gives a person standing to apply under s 84(2) to be joined as a party there would be no limit to the occasions when such an application could be used as a device to intermeddle in the proceeding."

(9-10)

But the case differs materially from that decided by Olney J. It may be that a single application, early in the stages of processing under the Act, and unsupported by other evidence, would not be sufficient to grant an interest which would support joinder. In the present case, however, a number of the applications are well advanced and they are directed to the furtherance of a substantial economic interest that AngloGold has in the area. That interest cannot be dismissed as speculative or nebulous. The applications represent steps taken as part of an ongoing exploration activity in the region which encompasses parts of the claim area. It is plainly qualified for joinder. It may be noted, by way of caution, that if a party's interests were used as a platform to pursue some collateral ideological or other agenda or if a party were to act grossly unreasonably in relation to a proposed consensual settlement, there is a discretion on the part of the Court to dismiss the party from the action - Bissett v Minister for Land and Water Conservation (NSW) at [24].

12    As with AngloGold in Walker, the application for exploration licence E47/1319 is well advanced as acknowledged in the determination by the NNTT that the licence may be granted and that it is part of a larger mining activity within the claim area. It is clearly distinguishable from the position I considered in Freddy on behalf of the Wiluna Native Title Claimants v State of Western Australia [2010] FCA 1158 where there was no evidence of the status exploration licence application or of any interests that the applicant may have had in the area.

13    As to the interests of justice, FMG contends that they ‘include’ the following:

1.    all the joinder applicants have significant interests in the claim area which may be materially affected by any determination in the proceeding;

2.    FMG plans to incur and has already incurred significant capital expenditure constructing infrastructure within the claim area;

3.    the determination application has not been listed for hearing and is still the subject of mediation in the NNTT;

4.    YAC purportedly on behalf of the applicant has opposed and continues to oppose the endeavours of FMGP within the claim area; and

5.    YAC and FMG have been unable to reach agreement concerning FMGP’s mining operations within the claim area.

BASIS OF OPPOSITION TO THE JOINDER

14    YAC purportedly on behalf of the applicant opposes the joinder application on that basis that the requirements under s 84(5) NTA have not been established.

15    In opposing the joinder application, YAC points to the fact that Mr Weaver’s affidavit has repeated reference to two of the exploration leases on a number of occasions, has given inadequate explanation for the delay in bringing the application and submits that the opposition advanced by YAC to determinations of the NNTT about the interests of FMG is irrelevant. The first of these points is correct but an inconsequential error. As to the second point, it may be the case that such an application, albeit with perhaps weaker evidentiary support might have been brought earlier. That should not be a fatal failing. The question before the Court at this point is to be determined by the current and likely future state of affairs including a range of possibilities. There is no suggestion on the evidence or argument that the applicant’s claim has been pursued only because FMG had not sought to be joined or that FMG had given any assurance that it would not seek joinder. As to the third point, I do not consider this to be irrelevant for reasons explained below (at [26]).

16    The two main grounds of opposition are these:

    While it is accepted that FMG has interests in relation to land that is subject of the applicant’s native title claim, it is disputed that the interests may be affected by a determination in the proceedings.

    It is also submitted that joinder would not be in the interests of justice.

17    These arguments are advanced on the basis that the applicant’s native title claim is about whether the applicant can prove within the claim area native title rights and interests that are recognised and may be subject to a determination in accordance with the NTA. FMG has not suggested it has any evidence that can be put before the Court relevant to a determination of those central issues.

18    Further, a determination of those rights and interests would not affect the mining interests of FMG because those interests are granted under the Mining Act 1978 (WA) (Mining Act) and the NTA. Those rights, that is, mining tenement rights of FMG, to the extent there is any inconsistency, would prevail over any native title rights and interests found to be established in the determination (see, for example, State of Western Australia v Ward (2002) 213 CLR 1 (at [309]). This is confirmed by the non-extinguishment principle under the NTA as defined in s 238 and as applied to the grants of mining tenements: see ss 238, 24AA(6), 24AA(7), 24MD(3) and 44H NTA.

19    YAC submits that the condition to which each of the mining leases was granted permitting access to native title parties (except in relation to those parts used for exploration or mining operations or where it is unsafe or insecure to have access), indicates that FMG’s mining interests and mining on the land subject to the claim will not be affected by any determination of native title in the proceeding. This argument in particular, YAC suggests, does not appear to have been put before the Court in Walker and falls separately for consideration in the present application. Rights granted to FMG under the Mining Act will prevail over inconsistent native title rights and interests to the extent of any inconsistency. Shortly put, it is asserted that it is not generally in the interests for native title proceedings to have a multiplicity of parties, especially parties whose rights and interests cannot be affected by a determination of native title. YAC argues that a multiplicity of parties would make it less likely that the application would settle and could lead to unnecessary ‘meddling’ in the proceedings. YAC argues that the State can be relied upon to place before the Court all evidence of mining tenements that have been or are in the process of being granted within the claim area.

CONSIDERATION

20    It would appear that the current form of s 84(5) NTA including the addition of the words ‘in the interests of justice’ pursuant to the Native Title Amendment Act 2007 (Cth) (NT Amendment Act) do not apply to the present application. Those words apply only in respect of proceedings commenced on or after 15 April 2007. The native title claim was filed with the Court on 9 July 2003. This point was acknowledged in subsequent submissions by FMG. It is difficult to know why the words were added to the provision as it is axiomatic that any joinder application would be granted only if it were in the interests of justice. Those words add nothing to the matters the Court must consider in such an application as noted by Gilmour J in Barunga v State of Western Australia (No 2) [2011] FCA 755 (at [163] and [164]). Further, in Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 (at [8]) Reeves J said:

Dealing with the second ground of opposition first, the phrase “in the interests of justice” was added to subsection 84(5) by way of the Native Title Amendment Act 2007 (Cth). It is trite to say that all of the Court’s determinations, including my determination of these two applications, must be made in the interests of justice. That being so, it is unnecessary, in my view, to consider whether or not the addition of this phrase to subsection 84(5) adds anything to the matters I need to consider in these two applications.

21    The main thrust of the debate is whether FMG would be affected by a determination in the proceedings. If it be the submission of YAC that it is only the interests under s 253 NTA which may be affected by a determination and which would warrant joinder, that submission cannot be accepted. It is clear from Byron Environment Centre Incorporated v Arakwal People and Others (1997) 78 FCR 1 (at 6 per Black CJ, 18 per Lockhart J, and 40-41 per Merkel J) that ‘interest’ has a broader scope. An interest to which the NTA is directed is an interest which is not indirect, remote or lacking in substance. It must be capable of clear definition and of such a character that it may be affected in a demonstrable way by a determination in relation to the application.

22    As has been previously observed, the consensual objects of the NTA would seem to be advanced rather than retarded, if a person with a genuine interest, even of a non-proprietary nature, that might or would be affected, had a right of involvement in the process of native title determination.

23    It is beyond doubt in my view that FMG has established that it has a relevant interest which may be affected by a determination in the proceeding. A determination of native title in favour of NC may entitle the applicant to compensation payable by FMG pursuant to s 123 of the Mining Act or s 24MD(3) NTA and s 125A of the Mining Act. The fact that a determination in the proceeding may give rise to a liability on the part of FMG to pay compensation clearly shows that FMG may be affected by the determination.

24    The interests of FMG are well entrenched. Several of the mining tenements and exploration licence E47/1319 are the subject of a determination by the NNTT in accordance with s 38 NTA. Conditions have been imposed on the ultimate grant of each mining tenement. Of those conditions, three impose an obligation on the tenement holder in favour of the ‘native title party’, being the applicant. If there were a determination that the applicant does not hold native title in the area of those mining tenements, the conditions would be nullified. Such a determination could then affect the rights and obligations of the relevant mining tenement holder. The converse is equally so.

25    There are future act considerations. Fortescue and FMGP each hold exploration licenses. Rights conferred under those licenses include a priority for the grant of mining leases or general purpose leases: s 67 of the Mining Act. The grant of such leases are future acts which fall subject to the procedural requirements of the right to negotiate provisions set out in the NTA. A possible consequence of those provisions may extend to the prohibition of the grant of any pending mining lease or general purpose lease: s 38(1)(a) NTA. If the native title claim were refused in the area of those mining tenements, the applicant would no longer be the holder of rights under that regime. The converse is also true if a determination in favour of the applicant were made.

26    There is a substantial economic interest by FMG in the claim area. Granted and pending mining tenements held by FMG cover more than 58% of the claim area with a planned capital expenditure of the Solomon Project alone exceeding AUD3 billion. The Special Rail Licence held by TPI to construct and operate a heavy gauge railway within the claim area and the further development of the Anketell Project are all major financial projects. FMG suggest that it is likely that they will continue to seek further land and mining interests in the claim area. The seeking of those further interests will almost invariably trigger rights and obligations under the NTA including the right to negotiate provisions. A determination one way or anther as to the existence of native title will clearly have a bearing upon obligations owed to the applicant by FMG.

CONCLUSION

27    It is in the interests of justice for the joinder to be permitted. Not only are the interests of FMG likely to be affected by the determination in the proceedings but it is helpful for the just determination of the application that the Court have the benefit, where necessary, of a contradictor or indeed, have the potential benefit of a supporter for such aspects of the applicant’s claims that are supported. The fact that there has been ongoing disputation between the applicant and FMG is of itself no reason why FMG should not be permitted to participate in the proceedings. Rather, having regard to the interests of FMG, it is not only beneficial for the Court to have the assistance of a contradictor whose interests are likely to be affected but the contradictor itself (FMG) should, in my view, have the opportunity to ensure that its interests are protected in light of the history of disputation which has occurred.

28    I accept YAC’s submission that ‘meddling’ ought not be permitted and I accept YAC’s submission that a multiplicity of parties is not always attractive in achieving the statutory objects. But these are matters within the power of the Court to control in the conduct of the proceeding. There is no reason to conclude that the joinder of FMG should impede the progress of the applicant’s claim.

29    For those reasons, the application for joinder will be permitted.

Associate:

Dated:    20 July 2012