FEDERAL COURT OF AUSTRALIA

Rita Augustine v State of Western Australia [2013] FCA 338

THE COURT ORDERS THAT:

1.    The applicant, the State of Western Australia, Woodside Energy Limited, Waardi Limited and Guumbarr Limited participate in a mediation with a view to resolving issues which will otherwise arise upon the discontinuance of the Application in relation to the Browse Agreements as defined in paragraph [4] of the Reasons for Judgment.

2.    The parties and the interveners referred to in Order 1 confer and within 14 days of this order file a Minute of Orders as to the identity of the mediator and the terms of reference for the mediation.

3.    There be liberty to apply to those parties and those interveners referred to in Order 1 as to the matters the subject of Order 2.

4.    The interlocutory application dated 13 February 2013 be adjourned to a date to be fixed after the conclusion of the mediation referred to in Order 1.

5.    Costs reserved.

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

Table of Contents

REASONS FOR JUDGMENT

1    The applicant, which represents the Goolarabooloo/Jabirr Jabirr Native Title claim group (the GJJ claim group) has applied for leave to discontinue its substantive application which is for determination of native title (the GJJ Determination Application).

2    The GJJ claim group, at their 5 and 6 February 2013 claim group meeting, resolved that leave be sought that the GJJ Determination Application be discontinued and that an application for this relief be determined no later than 10 April 2013.

3    The principal issue is whether the grant of leave will cause such prejudice to the other parties that leave should not be granted or should be granted upon conditions. The parties who oppose an immediate and unconditional grant of leave are the State of Western Australia (the State) and Woodside Energy Limited (Woodside). However, I gave Waardi Limited and Guumbarr Limited leave to appear as interveners on this application. They submit that any grant of leave be upon certain conditions. The State submits that any grant of leave not take effect till after 18 April 2013 and upon certain conditions. Woodside submits that in the present circumstances leave should be refused.

4    The opposing parties submit, broadly speaking, that discontinuing the GJJ Determination Application before 18 April 2013 will result in significant adverse consequences for the State and other parties with an interest in certain agreements (the Browse Agreements) reached between the State, Woodside and the applicant for the development of the Browse Liquefied Gas Precinct (LNG Precinct) which is near James Price Point, in the Kimberley region of Western Australia and which is within the claim area. The Agreements are the Browse LNG Precinct Project Agreement (the PPA), the Browse LNG Precinct Regional Benefits Agreement and the Browse (Land) Agreement.

5    Those adverse consequences are:

(i)    Potential delay to, and adverse affect upon, the issuing of a taking order in respect of land the subject of a notice under s 29 of the Native Title Act 1993 (Cth) (the NTA) issued in December 2012 (Second Replacement Section 29 Notice), notwithstanding the applicant (in their capacity as registered native title claimants by reason of the GJJ Determination Application, for an on behalf of the members of the GJJ claim group) has consented to the taking order in the PPA.

(ii)    The delivery of the benefits (to the GJJ claim group, and to the Kimberley Indigenous People) under the Browse Agreements would be put at risk.

(iii)    Performance of the PPA in particular, during what is described as the pre-determination period will become untenable without amendment or assignment. If the proceedings are discontinued without these issues being addressed and remedied there will be no Native Title Party (NTP) under the PPA. The applicant is presently the NTP. It is contended that the applicant, as the NTP under the PPA, is in breach of its contractual obligations in seeking discontinuance prior to 18 April 2013 and that in any event it has other contractual obligations which it ought to fulfil.

6    I gave leave to Joseph Roe, Jason Roe, Terrence Hunter Jr and Brian Councillor in their capacity as the applicant in the Goolarabooloo Determination Application to intervene on behalf of the Goolarabooloo People (Goolarabooloo) in relation to the application for leave to discontinue pursuant to r 9.12 of the Federal Court Rules 2011 (Cth) (the Rules) as they will be directly affected by the determination of the application. I considered that whilst they supported the applicant’s submissions that they also would be of assistance to the Court in bringing additional, different and useful matters to its attention. I will refer to the interveners also as the Goolarabooloo.

7    These adverse consequences will arise, not by reason of the discontinuation of the proceedings, but by reason of their discontinuation prior to 18 April 2013 as it would almost certainly allow new native title claims to be filed in the Court by each of the Goolarabooloo and the Jabirr Jabirr. These claims may then be registered on the National Native Title Tribunal’s Register of native title claims and thereby the claimants in those new claims will be afforded procedural rights under the NTA, imposing an obligation on the State and Woodside (or other Proponents under the PPA) to negotiate with those new claimants in relation to a future act notice (Notice of Intention to Take) issued by the State on 5 December 2012. If no new claims are registered prior to 18 April 2013 then no such procedural rights will arise.

8    Further or alternatively, it is contended, at least by the State, that the discontinuance before 18 April 2013 is sought for a collateral purpose, namely to resolve a conflict that “has arisen” between members of the GJJ claim group and to confer procedural rights on members of the GJJ claim group and that this amounts to an abuse of process.

9    I have concluded, for the reasons which follow, that prejudice in the way of a very significant injustice would be visited on the State, Woodside and on the Kimberley Indigenous Peoples as defined in the PPA. I consider that it will likely also prejudice the interests of the GJJ claim group itself.

Leave to discontinue: principles

10    The GJJ Determination Application is a representative proceeding. Leave of the Court to discontinue that proceeding is required under r 26.12(4) of the Rules. Further, the Court has power to grant leave to discontinue the proceeding subject to conditions: r 1.33 of the Rules.

11    Where leave to discontinue is sought in a proceeding, the court will normally allow an applicant to discontinue if he or she wants to, provided no injustice will be caused to the respondent(s): Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at 879. As Graham J observed at 879:

The court should therefore grant leave, if it can, without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained ...

12    This approach has been adopted by this Court in a number of native title cases, including: Hazelbane on behalf of the Warai and Kungarakany Groups v Northern Territory of Australia [2011] FCA 1186 at [14]; Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land and Water Conservation [2011] FCA 77 at [23]; Close v Queensland (2010) 190 FCR 182 at [35]; McKenzie v State of South Australia [2006] FCA 891 at [5]. These cases are also examples where conditions were imposed on the grant of a discontinuance order.

13    The Court’s discretion to impose conditions upon a discontinuance is unfettered and must take into account all relevant factors including the interests of the parties and any element of relevant public interest: Re Carlton United Breweries (NSW) Pty Ltd v Bond Brewing NSW Ltd; Tooth & Co Ltd and Bond Brewing Queensland Ltd [1988] FCA 128 at [6].

Applicant’s authority to apply for leave

14    There is no requirement in the NTA for a claim group to authorise an applicant to seek leave to discontinue a claimant application. Further, there is nothing in the terms of the authorisation of the applicant requiring it to obtain the approval or authorisation of the GJJ claim group to seek to discontinue the GJJ Determination Application.

15    The authority of the applicant extends to making an interlocutory application seeking leave to discontinue the proceeding: ss 62A and 251B of the NTA; Close v Queensland at [32]; Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2012] FCA 1321 at [40].

16    The applicant did not have to obtain the approval of the GJJ claim group to seek leave to discontinue the proceeding although the fact that it did so is relevant in the exercise of the Court’s discretion whether to grant leave: Close v Queensland at [32]; Anderson v Western Australia (2003) 134 FCR 1.

Background facts

17    The facts are not in issue, although whether certain inferences arise from certain of the facts is. The following background facts are not, I think, controversial, and are taken principally from the State’s written outline of submissions. The GJJ Determination Application is the result of a combination of two separate determination applications commenced by Mr Joseph Roe and others as applicants in 1994 and 1995. Since 1996, the GJJ Determination Application has claimed native title on behalf of the GJJ claim group: Roe v State of Western Australia (No 2) [2011] FCA 102 at [122]-[126].

18    The GJJ Determination Application, as amended by order of the Court on 21 October 1999, defines the GJJ claim group, described as the "Goolarabooloo and Jabirr Jabirr Peoples", in the following terms:

This claim is brought on behalf of those Aboriginal people who are ancestrally connected to the original occupiers of the area the subject of the claim and who hold in common the body of traditional law and custom governing the area the subject of the claim; namely, the descendents of Bornal, Appolonia, Wallai William, Nelagumia Mary "Maudie", Keleregado, Milare, Frank Dixon, Nyobing Babere, Chimbere Sitocay and Paddy Roe, and excepting those people who, for their own reasons, have chosen not to be part of the claim group and who have given instructions to this effect; namely: Louisa Grey, Barry Grey, Donald Grey Junior, Doreen Grey, Pauline Grey, Lorraine Grey, Thomas Grey, Regina Grey and James Grey.

19    The GJJ Determination Application was accepted for registration on 29 October 1999. Joseph Roe and Mr Cyril Shaw were, from that time, registered native title claimants, who both controlled the conduct of the litigation and the exercise of procedural rights that are conferred by the NTA on registered native title claimants.

20    "Goolarabooloo" is a family name rather than a tribal name, referring to the descendants of Joseph Roe's grandparents. The claim by the Goolarabooloo to hold native title as members of a native title claim group depends on the incorporation of that family, through Paddy Roe, into Jabirr Jabirr (JJ) society.

Disputes about the LNG Precinct

21    The disputes which arose in relation to the GJJ Determination Application began at around the time that James Price Point, located within the claim area, was identified by the State as the preferred site for an LNG Precinct at which the construction of gas processing facilities related to the development of the gas resources in the Browse Basin will occur. The identification of James Price Point as the preferred location for the LNG Precinct was announced by the Premier and Minister for State Development on 23 December 2008.

22    Divisions within the GJJ claim group emerged, particularly in relation to the manner in which procedural rights relating to the proposed LNG Precinct should be exercised: Roe v State of Western Australia (No 2) at [127]-[132].

23    A Heads of Agreement was signed by the State, Woodside and the Kimberley Land Council (KLC) (acting on its own behalf and as agents for the then applicant) on 21 April 2009. The Heads of Agreement recorded the parties' broad agreement on a number of principles necessary to obtain native title and cultural heritage consents for the establishment of the proposed LNG Precinct.

Proceedings against the KLC

24    On 14 May 2010, Joseph Roe and (purportedly) Cyril Shaw commenced proceedings against the KLC challenging the authority of the KLC to represent the GJJ claim group in negotiations for agreements relating to the proposed LNG Precinct. Cyril Shaw apparently did not support the bringing, and opposed the continuation, of those proceedings against the KLC. Joseph Roe, by Amended Notice of Motion dated 13 July 2010, applied for leave to file an amended application as sole party to those proceedings. On 2 August 2010, that amendment application and the substantive proceedings were dismissed on the ground that Joseph Roe, suing alone, lacked standing to represent the members of the GJJ claim group in the proceedings: Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809.

Separate JJ Determination Application

25    On 20 May 2010, the persons who comprise the applicant, and three others, commenced a separate determination application representing the Jabirr Jabirr (JJ Determination Application). The JJ Determination Application remains on foot, although the persons named as the applicant in the present proceedings no longer comprise the applicant in the JJ Determination Application. The general description of the native title claim group in the JJ Determination Application is of the:

… people known as the Jabirr Jabirr people, being those Aboriginal people whose traditional land and waters are situated generally in the district north of Broome and south of Beagle Bay in the State of Western Australia.

26    However, the JJ Determination Application identifies only four of the apical ancestors identified in the GJJ Determination Application. The JJ Determination Application also identifies 18 apical ancestors who are not referred to in the definition of the GJJ claim group.

Appointment of the current applicant

27    By 2010, the relationship between Joseph Roe and Cyril Shaw had become unworkable. A meeting of the GJJ claim group at Broome on 3 August 2010 resolved to replace Joseph Roe and Cyril Shaw with the current named applicants and three other persons.

28    The authority for the applicant to deal with all matters arising in relation to the GJJ Determination Application, conferred by the resolution passed on 3 August 2010, was subject to the following conditions:

(a)    The applicant will comply with and give full effect to all the motions passed at this meeting (including expeditiously applying to the Federal Court of Australia to replace the current applicant) and future meetings of the GJJ claim group;

(b)    The applicant will not enter into any agreement that affects the land or waters covered by the GJJ Determination Application unless authorised to do so by the GJJ claim group at a meeting or meetings of the GJJ claim group that adopts the same process of decision making as agreed and adopted at this meeting; and

(c)    Each of the persons appointed to be the applicant must act in good faith at all times and use their best endeavours to reach agreement amongst the persons comprising the applicant on all matters arising in relation to the GJJ Determination Application for the benefit of the GJJ claim group as a whole.

29    On 13 August 2010, six members of the GJJ claim group made an application to the Court seeking to replace Joseph Roe and Cyril Shaw as the applicant in the GJJ Determination Application. On 15 February 2011, the Court ordered that the present named applicants replace Joseph Roe and Cyril Shaw as the applicant on the GJJ Determination Application: Roe v State of Western Australia (No 2).

30    Joseph Roe's attempts to appeal against that decision were unsuccessful: Roe on behalf of the Goolarabooloo and Jabirr Jabirr Peoples v State of Western Australia [2011] FCA 421.

Challenges to validity of clearing permits

31    At about the same time, Joseph Roe commenced two legal proceedings demonstrating his opposition to the proposed LNG Precinct. He commenced, what were ultimately unsuccessful, proceedings in the Supreme Court of Western Australia, seeking to have declared invalid two clearing permits issued for the purpose of geotechnical and road works relating to the proposed LNG Precinct: Roe v Director General, Dept of Environment and Conservation (WA) [2011] WASCA 57; Roe v Director General, Dept of Environment and Conservation (WA) (No 2) [2011] WASCA 58.

Issue of Original Precinct Notices

32    In September 2010, the State Minister for Lands issued notices (Precinct Notices) under the Land Administration Act 1997 (WA) (Land Administration Act) and the NTA in relation to the proposed taking of interests in land within and for the purposes of the proposed LNG Precinct.

Entry into the PAA

33    On 30 June 2011, the State and certain of its agencies, Woodside, the applicant and the KLC entered into the Browse Agreements that is, as I have mentioned, the PPA, the Browse LNG Precinct Regional Benefits Agreement and the Browse (Land) Agreement. The principal agreement was the PPA.

34    The “LNG Precinct” under PPA cl 1.1 means the development of the subject of the Strategic Assessment Agreement required to produce, store and ship LNG, including:

(a)    the hydrocarbon processing facility;

(b)    all land, waters, infrastructure and land or water use (including shipping) associated with or required for the hydrocarbon processing facility;

(c)    the Access Roads, Workers’ Accommodation Site, Third Party Contractors’ Site, Industrial Precinct, Pipeline Corridors, Service Corridors, Buffer Zone, Port Land and Port Waters; and

(d)    ancillary facilities including power, gas and water processing to support it,

to be built in the vicinity of James Price Point within the area of the Native Title Claim.

35    Clause 3 of the PPA contains warranties by the applicant that, inter alia:

(a)    the Native Title Party has instructed the KLC to make all reasonable efforts to ensure that all persons who hold or may hold native title in relation to the area of the Native Title Claim have been identified: cl 3.1(a)

(b)    the making of the Native Title Claim in accordance with section 251B of the [NTA] is properly authorised: cl 3.1(b)

(c)    the Native Title Claim Group has authorised those who sign [the PPA] [the applicant] to enter into [the PPA] in the manner required by the [NTA] on behalf of the Native Title Claim Group and that the Native Title Party has the full power and authority to enter into and perform the obligations of the Native Title Party under [the PPA]: cl 3.1(c)

(d)    they [the Native Title Party] have received independent legal and some technical advice during the negotiation of [the PPA] and about the content and effect of [the PPA]: cl 3.1(d)

(e)    [the PPA] is valid and binding, and enforceable in accordance with its terms against the Native Title Party: cl 3.1(g).

36    The term “Native Title Party” (NTP) is defined at the commencement of the PPA as the applicant in their capacity as the applicant under s 61 of the NTA for and on behalf of themselves and the “Native Title Claim Group”. Native Title Claim Group is defined in cl 1.1 as having the meaning set out in the NTA in relation to the “Native Title Claim”. Native Title Claim is defined as the GJJ Determination Application as amended from time to time. Thus, the Native Title Claim Group within the meaning of the PPA is the GJJ claim group.

37    By cl 4 of the PPA, the applicant, acting for and on behalf of itself and the members of the GJJ claim group, consented to the doing of future acts comprised in the Precinct Notices. For this purpose, references to the Precinct Notices were defined to include notices issued in substitution or replacement for the Precinct Notices (provided that the proposed taking in those substituting or replacement notices is for the same purpose, for no greater areas and within the areas originally notified).

38    Clause 5.2 of the PPA is headed “Further assurances and Acknowledgements”, and provides, inter alia:

(a)    “The Parties will do all things and execute all documents that are necessary to give effect to this Agreement”: cl 5.2(b).

(b)    Subject to certain exceptions which are not relevant to the Second Replacement Section 29 Notice, “the Native Title Party will not do anything to challenge or adversely affect the Takings, Precinct Notices or the Project Rights under the Principal Acts or otherwise at Law...”: cl 5.2(c).

(c)    “The Native Title Party will use its reasonable endeavours to remove or procure to be removed any objections made in relation to the s 29 Notice ... at any time by any member of the Native Title Party”: cl 5.2(e).

39    Clause 5.1 of the PPA provides that the “Benefits” are given in consideration for actions including the consent to future acts provided for under cl 4 of the PPA. The applicant, the GJJ claim group and indigenous people in the Kimberley were to receive a number of substantial Benefits designed to advance the economic independence of the members of the GJJ claim group and Aboriginal people generally in the Kimberley. The total value of the Benefits has been estimated to be in excess of $1.5 billion over the life of the project, with the State's compensation benefits package comprising:

(a)    $256 million payable into funds for the benefit of GJJ and other Kimberley native title holders and claimants for the purposes of economic development, housing, education, preservation of cultural heritage and creation of jointly managed conservation areas; and

(b)    a land package comprising residential and industrial land in Broome, 3500ha of land on the Dampier Peninsula, plus a grant of the LNG Precinct land at the end of project life.

40    However, most of those Benefits are to be provided only on either the taking of the land or the date on which the “Foundation Proponent”, Woodside, becomes secured. The Benefits which are provided prior to that time are:

(a)    The PPA provides for funding and land for administrative bodies, which are to administer the benefits to be conferred under the PPA: cll 12 and 15. The amount of funding is $5 million.

(b)    The Regional Benefits Agreement also provides for the State to pay $20 million for a period of 10 years in annual instalments of $2 million to fund the operation of a Regional Body established under that Agreement, from the "Regional Body Ratification Date": cl 19.14 of the Regional Benefits Agreement.

(c)    The PPA provides for the State to provide Native Title Party Housing Land of 25 residential lots, 6 house and land packages and 15 hectares of englobo developable land: cl 13 of the PPA.

41    The applicant's entry into the PPA was authorised at a meeting of the GJJ claim group held on 6 May 2012, by a vote of 164 in favour and 108 against.

42    However, Joseph Roe and other members of the Goolarabooloo, despite the outcome of this meeting of the GJJ claim group, continued to actively oppose the proposed LNG Precinct.

Goolarabooloo Determination Application

43    On 5 January 2011, Joseph Roe and others on behalf of the Goolarabooloo made a separate native title determination application (Goolarabooloo Determination Application). The Goolarabooloo Determination Application defines the native title claim group as comprising Teresa Roe, Margaret Hunter, Thelma Kelly, Margaret Kelly and their named descendants. On 28 February 2011, the Registrar refused to register the Goolarabooloo Determination Application because the members of the native title claim group identified in that Application were also members of the GJJ claim group, who were the subject of the GJJ Determination Application. As a result, the Goolarabooloo Determination Application failed to satisfy the requirements of s 190C(3) of the NTA, that there be no common membership with an existing registered claim over the same area. That was the only reason why the Registrar refused to register the Goolarabooloo Determination Application. The Goolarabooloo Determination Application remains on foot.

Joinder and strike-out proceedings

44    On 24 February 2011, Joseph Roe and the other applicants in the Goolarabooloo Determination Application, sought to be joined as respondents to the GJJ Determination Application. The purpose of that joinder application was to enable the applicants for joinder to seek a dismissal of the GJJ Determination Application.

Original precinct notices held invalid and replacement notices issued

45    On 3 May 2011, Neil McKenzie and Phillip Roe, a brother of Joseph Roe, commenced proceedings in the Supreme Court of Western Australia seeking declarations that the Precinct Notices were not validly issued under the Land Administration Act. Those notices were declared invalid by the Supreme Court on 20 October 2011, essentially on the ground that they failed to properly contain "a description of the land required" as mandated by s 171 of the Land Administration Act: McKenzie v Minister for Lands (2011) 256 FLR 1. The Precinct Notices had identified a larger area within which a smaller parcel of land would be taken (for example it was been proposed that 200 hectares within a 2000 hectare area would be taken for the purposes of workers' accommodation facilities).

46    Replacement Precinct Notices, identifying the boundaries of the land required for the proposed LNG Precinct, were issued on 12 March 2012.

Correspondence between Chalk & Fitzgerald and the KLC

47    In the above context, at a directions hearing on 5 September 2011, counsel for the applicant advised this Court that:

It has been suggested by the KLC that, for the purpose of really trying to avoid expensive and drawn out interlocutory stoushes between the parties, that there perhaps be an amendment to the existing GJJ Claim to effectively remove the 'G' from the 'GJJ' claim which would then remove the obstacle, we perceive, for the registration of the Goolarabooloo family's claim.

48    On 7 September 2011, the KLC wrote to Chalk & Fitzgerald, the solicitors for Joseph Roe and three other members of the Goolarabooloo. That letter noted the joinder and strike out applications which the applicant was facing from four members of the Goolarabooloo. It contended that, in light of the separate Goolarabooloo and JJ Determination Applications, it must be presumed that those groups were "independently and separately seeking a determination of native title in their favour, possibly to the exclusion of the other". Noting that there was little prospect of a mediated outcome, the KLC suggested that the GJJ Determination Application be amended to remove the Goolarabooloo from the claim "thereby allowing … registration of the Goolarabooloo Families claimant application".

49    On 26 October 2011, Chalk & Fitzgerald responded proposing that the current GJJ Determination Application be discontinued so that fresh claims could be filed to secure registration. The letter also proposed that a meeting of the GJJ claim group be called for the purpose of determining the proposed course of action.

50    The focus, from the Goolarabooloo’s perspective, on the acquisition of procedural rights was apparent from letters written by Chalk & Fitzgerald discussing the proposed meeting. On 16 December 2011, Chalk & Fitzgerald wrote to the KLC in a letter which concluded with the observation that "[i]n view of the likelihood that fresh notices of intention to take will be issued in January it would not be appropriate to delay the meeting beyond the third (or at latest) fourth week in January". On 19 January 2012, Chalk & Fitzgerald noted that it was necessary to remove the apical ancestors Nyobing Babere, Chimbere Sitocay and Paddy Roe:

This is because a number of Goolarabooloo people, including Joseph Roe, trace their descent to these three ancestors. Unless all three of them are removed from the GJJ claim group description… a separate Goolarabooloo claim… would not be able to be registered because it could not satisfy the requirements of section 190C(3) NTA.

51    In Chalk and Fitzgerald's letter of 31 January 2012, it was said:

Our clients are very conscious of the statement by the Premier of Western Australia that the Browse LNG Hub NOITTs will be reissued “in the New Year” and other statements by senior officers of the Department of State Development that its intention was for the NOITTs to be reissued in January 2012.

Our clients are keen to ensure that any separate claim that they may file is able to be registered before the notification period for the Browse LNG Hub NOITTs expires, so that they can exercise the right to negotiate in relation to the proposed compulsory acquisition of their native title rights and interests. This factor was plainly identified to you in our 16 December 2011 letter.

Given the information available to us, the timelines proposed by the KLC for the meeting of the GJJ claim group (next financial year, and now late March) to consider the GJJ Applicant’s 7 September 2011 proposal for the amendment of the claim run the risk that leave to amend the GJJ claim will not be able to be obtained from the Federal Court before the notification period expires, which would be of serious prejudice to our clients' interests.

52    In January 2012, Joseph Roe called a meeting of the GJJ claim group, which was initially proposed for 8 February 2012 and eventually held on 22 February 2012. Notices of that meeting proposed two alternative matters for decision at the meeting:

(a)    whether the GJJ Determination Application should be amended to remove Nyobing Babere, Chimbere Sitocay and Paddy Roe as named apical ancestors; or alternatively;

(b)    confirm that all members of the GJJ claim group hold native title rights and interests within the GJJ claim area.

53    At the meeting on 22 February 2012, Joseph Roe began the discussion of the resolutions to direct the making of the Amendment Application by indicating that "I want my grandfather to be out now" and that "[t]here is not space for my grandfather or the other mob ... [b]ecause there is no respect here for my grandfather or for the WY ancestors".

54    Those present at the meeting on 22 February 2012 passed the following resolutions:

(a)    note that the authorisation of the Applicant on 3 August 2010 was subject to the condition that the Applicant will "comply with and give full effect to all the motions passed at this meeting (including expeditiously applying to the Federal Court of Australia to replace the current Applicants) and future meetings of the GJJ claim group";

(b)    resolve that Schedule A of the [GJJ Determination Application] should be amended at the earliest possible time by removing Paddy Roe, Chimbere Sitocay and Nyobing Babere as named apical ancestors of the GJJ claim group;

(c)    direct the Applicant to give effect to paragraph (b) above by instructing the solicitors for the GJJ claim group to prepare and file a notice of motion for leave to amend the GJJ native title claim in accordance with the Federal Court Rules and the Federal Court Rules 2011 by not later than 14 days from the date of this meeting and to take all necessary steps to enable the application for leave to amend to be heard and determined by the Court on an urgent basis; and

(d)    direct the Applicant to instruct the solicitors for the GJJ claim group to provide a copy of any notice of motion for leave of the Court to amend the GJJ native title claim, whether filed in the Federal Court or not, to any member of the GJJ claim group within 2 days of receipt of a written request.

The Amendment Application

55    By Amended Interlocutory Application dated 14 May 2012 (Amendment Application) the applicant sought leave to amend the GJJ Determination Application. The principal effect of the proposed amendment was to remove the reference to descendents of Nyobing Babere, Chimbere Sitocay and Paddy Roe from the description of the native title claim group. The Amendment Application also proposed to introduce a general description of the native title claim group as the:

people known as the Jabirr Jabirr people, being those Aboriginal people whose traditional land and waters are situated generally in the district north of Broome and south of Beagle Bay in the State of Western Australia.

56    The Amendment Application was brought on for directions on 8 May 2012. At that time the Court made directions programming the Amendment Application for hearing on 11 and 12 June 2012.

57    At the directions hearing the State and Woodside indicated their opposition to the Amendment Application on grounds which included that the effect of the proposed amendment would be to create a new native title claim group, comprising the JJ descendants, but the JJ descendants had not authorised the making of the amended application. That ground was fatal to the Amendment Application because an amendment involving the formulation of what is in substance a fresh determination application should not be allowed unless the authority of the new claim group is established: McKenzie v South Australia (2005) 214 ALR 214 at [53], [56]; Brown v State of South Australia [2009] FCA 206 at [19], [40]-[44]; Tucker on behalf of the Narnoobinya Family Group v Western Australia [2011] FCA 1232 at [40]-[41].

Meeting of the JJ descendants on 29 May 2012

58    Presumably in response to the contentions of the State and Woodside, the KLC arranged for a meeting of JJ descendants to be held on 29 May 2012.

59    Only 55 people whom the KLC recorded as JJ descendants attended the meeting on Tuesday, 29 May 2012. The meeting commenced at 10:10 am and concluded at 6:15 pm. By the point in the meeting at which the resolution proposing the discontinuance of the GJJ Determination Application was passed, only 29 JJ descendants remained in attendance. Of those, only 22 persons voted in favour of the resolution in favour of discontinuing the GJJ Determination Application.

60    The prospect of calling a meeting of all members of the GJJ claim group was discussed at the meeting on 29 May 2012. It was resolved that this should not be done. Two reasons for not calling a combined meeting were advanced in recorded debate. The first, in substance, was that the Amendment Application was listed for hearing on 11 and 12 June 2012, and the time for the Goolarabooloo to become registered expired on 20 June 2012, so that there was no time to notify members of the GJJ claim group. The second reason was that the JJ descendants "won't have the numbers at a separate meeting".

June 2012 Discontinuance Application

61    Following the meeting on 29 May 2012, the Amendment Application was withdrawn and on 5 June 2012, a discontinuance application was made (June 2012 Discontinuance Application).

62    On 8 June 2012, orders were made programming the June 2012 Discontinuance Application for hearing on 14 June 2012.

63    On 8 June 2012 the State also served the applicant with a Notice of Default under the PPA. The event of default identified in that notice was the making of the June 2012 Discontinuance Application:

in circumstances where a purpose and effect of discontinuing the Native Title Claim would be to enable certain members of the Native Title claim group to become registered native title claimants and oppose the Takings, the Precinct Notices and the Project Rights. In those circumstances the making of the Interlocutory Application adversely affects the Takings, Precinct Notices and the Project Rights within the meaning of cl 5.2(c) of the Project Agreement, and constitutes a breach of clause 5 of the Project Agreement.

64    At that time, the State had issued a notice under s 29 of the NTA (First Replacement Section 29 Notice) in respect of the same future acts now the subject of the Second Replacement Section 29 Notice.

65    On 12 June 2012, the State filed detailed submissions opposing the June 2012 Discontinuance Application.

66    On 14 June 2012, the State issued a Notice of Suspension under the PPA, on the basis of the Notice of Default referred to above. On the same day, the June 2012 Discontinuance Application was dismissed by consent. In an affidavit, Ms Cole, solicitor for the applicant, deposed that she had been instructed by the applicant to withdraw the June 2012 Discontinuance Application, inter alia, because the applicant had been put on notice that any discontinuance of the GJJ Determination Application might result in the suspension of all Benefits, including the Regional Benefits, under the Browse Agreements, and they wanted any decision as to discontinuance to be made following the calling of a full meeting of all members of the GJJ claim group. On that date, counsel for the State informed the Court that the State would consider a request to provide reasonable funding for such a meeting.

Supreme Court Proceedings CIV 2765 of 2012 – October 2012

67    On 24 October 2012, Phillip Roe, a member of the GJJ claim group and of the Goolarabooloo Determination Application claim group, commenced proceedings in the Supreme Court of Western Australia. In his amended originating summons and statement of claim, both dated 21 January 2013 , Mr Roe seeks declarations, inter alia, that:

(a)    the PPA is invalid and of no effect;

(b)    alternatively, each of the consents under the PPA is invalid and of no effect; and

(c)    insofar as any provision of the PPA expressly or impliedly purports to prohibit or otherwise constrain the freedom of the GJJ claim group to authorise the amendment of the claim group description to remove the apical ancestors of the Goolarabooloo and Walman Yawuru people, or the discontinuance of the claim, the PPA is to that extent unenforceable on the grounds of public policy.

68    No claim is made in those proceedings in relation to the validity of the Second Replacement Section 29 Notice.

69    The State, other State entities who are parties to the PPA, Woodside, the applicant and the KLC, are defendants in those proceedings. The applicant and the KLC have filed submitting appearances.

70    Those proceedings are progressing in the Commercial and Managed Causes list, before Martin CJ. No trial date has yet been set.

71    In the context of those proceedings, on 5 March 2013 Chalk & Fitzgerald wrote to the State Solicitor’s Office stating, inter alia:

one of the likely consequences of the proposed discontinuance of the GJJ claim will be that the Goolarabooloo Families, the Jabirr Jabirr people and possibly others will be free to file fresh native title claims over the former GJJ claim area and to seek registration of those claims under the NTA.

72    Chalk & Fitzgerald also observed, in effect, that if the State contended that members of a future registered Goolarabooloo native title claim are bound by the consent previously given by the applicant in the PPA, irrespective of whether within the required timeframe under the NTA there is a registered Goolarabooloo native title claimant which would otherwise separately enjoy all available procedural rights in relation to the Second Replacement Section 29 Notice “the registered Goolarabooloo native title claimant’s procedural rights would be rendered nugatory in that instance” and that “would almost certainly give rise to a dispute”.

Second Replacement Section 29 Notice – December 2012

73    On 5 December 2012, as a result of defects in the process of issuing the Replacement Precinct Notices, the Minister for Lands cancelled the First Replacement Section 29 Notice under s 29 of the NTA and issued a new notice of intention to take (M124326) under the Land Administration Act, and a new notice under s 29 of the NTA, the Second Replacement Section 29 Notice. The Section 29 Notice itself appears on page 257 of the PPA, where the nature of the future act is described in respect of each of the parcels of land described:

The compulsory acquisition of the interests in the land, including any native title rights and interests, the grant of States’ interests, rights or powers or privileges in, over or in relation to that land, underwritten law for the purposes specified and ancillary and incidental purposes.

The future act is the taking of the land and the grant of interest in the land rather than simply the issue of notices.

74    The future acts the subject of that notice are the same as the future acts the subject of the First Replacement Section 29 Notice. Hence, but for the defect in the issuing of the First Replacement Section 29 Notice, no persons other than the applicant would have been registered native title claimants within 4 months of the notification day under the First Replacement Section 29 Notice and, consistently with the terms of the PPA, the State could have issued a taking order in respect of the land the subject of the First Replacement Section 29 Notice, and of the Second Replacement Section 29 Notice, in conformity with s 28 of the NTA.

GJJ claim group meeting on 5 and 6 February 2013

75    On 26 November 2012, the KLC wrote to Deputy District Registrar Trott regarding the GJJ Determination Application. In that letter, the KLC confirmed that it had previously advised the Court there were 3 options open to the GJJ claim group regarding the future progress of the claim, two of which involved amendment of the claim and one of which was the discontinuance of the claim. The letter explained that the KLC had anticipated holding a claim group meeting in November 2012, but due to competing priorities the meeting was put back to February 2013.

76    On 5 and 6 February 2013, the KLC convened a further meeting of the GJJ claim group. According to the affidavit of Ms Cole sworn 12 February 2013 at [25], members of the GJJ claim group present at the meeting passed, inter alia, resolution 3 as follows:

(a)    It is resolved that the members of the Goolarabooloo Jabirr Jabirr native title claim (WAD6002/98) instruct the Applicant to do all things necessary to discontinue the current Goolarabooloo Jabirr Jabirr native title claim (WAD6002/98).

(b)    The Applicant is hereby directed to give effect to paragraph (a) above by instructing the solicitor for the Goolarabooloo Jabirr Jabirr claim to prepare and file the necessary Court application and supporting documentation to discontinue the Goolarabooloo Jabirr Jabirr native title claim by not later than 14 days from the date of this meeting and to take all necessary steps to enable that Court application to be heard and determined by the Court on an urgent basis but in any case by not later than 10 April 2013.

77    Neither the resolution itself, nor Ms Cole’s affidavit, identifies the significance of the 10 April date referred to in resolution 3(b). However, it is prior to the date which is 3 months after the notification day referred to in the Second Replacement Section 29 Notice. The significance of that date is referred to further below.

Subsequent events

78    At the mention hearing in relation to the Current Discontinuance Application, on 22 February 2013, counsel for the applicant referred to the date of 10 April in the GJJ claim group resolution referred to above and said:

[T]he significance of that date your Honour is that the notice of intention to take was – had a notification date. That’s the relevant future .... notice which allows for the – for all of the procedural rights in the event of this. I was thinking if you understand what I’m talking about, but the 17 January was the notification date, so a new claim needs to be filed by 17 April, hence the date of 10 April being specifically referred to in the resolution.

79    At a case management conference before Barker J on 5 March 2013, counsel appearing for the applicant in the Goolarabooloo Determination Application informed his Honour that if the application for leave to discontinue the GJJ Determination Application is granted then “we are instructed to file a substantively identical claim as quickly as possible thereafter”. The reason for the filing of a new claim was explained as including, because registration of the existing Goolarabooloo Determination Application is not possible due to the overlapping membership with the GJJ Determination Application. When asked by Justice Barker whether he had any instructions as to the likely way forward following discontinuance of the GJJ Determination Application, counsel replied:

Not a great deal beyond seeking to secure the right to negotiate, your Honour, because of the proximity of the deadlines. So I guess, that we’re devoting a lot of energy in this court and others to dealing with the matters that are being thrown up and we don’t have detailed instructions about where to from that next step.

80    Counsel for the Jabirr Jabirr, in relation to its separate Determination Application, informed the Court that “we would be doing a parallel process registering a new claim in identical terms as soon as possible thereafter”.

The purpose for seeking leave

81    Presently, there are three separate native title claims filed in this Court over largely the same country: the GJJ Determination Application; the JJ Determination Application; and the Goolarabooloo Determination Application. It appears that, if unconditional and immediate leave to discontinue were granted, that the Goolarabooloo and Jabirr Jabirr would each file new Determination Applications and seek their registration prior to 18 April 2013.

82    Presently, neither of the last two Determination Applications can be registered on the National Native Title Tribunal Register of native title claims owing to the fact that claimants in each case are members of the GJJ claim group. There is irreconcilable conflict as between the Goolarabooloo and Jabirr Jabirr members of the GJJ claim group. At least this is so, according to Mr Watson. The written evidence of the applicant’s solicitor, Ms Cole, supports the view that there is at least a dispute between members of the GJJ claim group as to who are the Aboriginal persons who hold native title rights and interests in the area which is the subject of the GJJ Determination Application. In any event, the members of the GJJ claim group want to discontinue. It is worth repeating that the present application is not the first attempt by the present applicant to discontinue its claim. It filed an application for leave to discontinue on 5 June 2012. This was withdrawn on 14 June 2012 because Mr Watson and other members named as the applicant were served by both the State and Woodside with notices which effectively would have resulted in the suspension of all benefits, monetary and otherwise, under the PPA. The decision was taken to withdraw the application for leave because those persons felt that the GJJ claim group ought be consulted as to the consequences of discontinuance given the service of the notices. They felt that any decision to apply for leave to discontinue ought be made by the claim group as a whole upon a fully informed basis. Whether they were so informed is far from certain.

83    Ms Cole deposes that the purpose of the GJJ claim group meeting on 5 and 6 February 2013 was to enable the members of the GJJ claim group to consider and discuss the implications of decisions about the future conduct of the GJJ Determination Application on the PPA (and other associated commercial agreements) and to decide whether the GJJ Determination Application should be affirmed, amended or discontinued.

84    As I foreshadowed, there is nothing in the evidence to indicate that any explanation was given at the meeting as to the kind of difficult issues which concern the Browse Agreements and particularly the PPA to which I will turn later. Ms Cole quite properly conceded as much.

85    I infer from the terms of resolution 3 passed at the meeting that at least one purpose of the Current Discontinuance Application is to enable various members of the GJJ claim group to lodge new and largely competing claims within the 3 month period relevant to the Second Replacement Section 29 Notice and to have those claims registered within the 4 month period relevant to the Second Replacement Section 29 Notice, such that they will then obtain procedural rights under the NTA, including the right to negotiate in respect of the future act the subject of the Second Replacement Section 29 Notice. As I indicated earlier, this is the evident reason for resolution 3(b) passed at the meeting. It is also supported by the various statements of counsel for the applicant at previous hearings in this Court to which I have referred.

86    I also infer that the predominant purpose, at least of the Goolarabooloo members, in becoming registered native title claimants in respect of the future act the subject of the Second Replacement Section 29 Notice, is to oppose that future act being done, and to generally oppose the LNG Precinct being established. I do not, for reasons I explain later, consider that this is the purpose of the applicant. However, the applicant, I find, is aware of this purpose of the Goolarabooloo and therefore their act of seeking immediate unconditional discontinuance before 18 April 2013 is very arguably conduct to facilitate the purpose of the Goolarabooloo and thereby arguably a breach, at least, of PPA cl 5.2(c) as conduct likely to adversely affect the Taking(s) (as defined in the PPA).

87    I accept the submissions of the State that this latter inference is evident from at least the following which is a convenient summary of relevant matters to which I have already referred in some detail:

(a)    Joseph Roe, a vociferous opponent of the proposed LNG Precinct, had by 2010 lost the influence which he had as one of the persons named as applicant in the GJJ Determination Application. The majority of the GJJ claim group had decided to pursue an agreement with the State and Woodside which would enable the proposed LNG Precinct to proceed and, if it did proceed, for the members of that claim group and their community to receive the significant benefits provided for in the Browse Agreements. The GJJ claim group had achieved this by replacing Joseph Roe and Cyril Shaw as applicant in the GJJ Determination Application and entering into the Browse Agreements with the State, Woodside and others for that purpose. Joseph Roe and some other members of the Goolarabooloo were doing what they could to oppose the proposed LNG Precinct and enable Joseph Roe to regain his former status as registered claimant, including by taking interlocutory proceedings against the current applicant with a view to having the GJJ Determination Application dismissed;

(b)    the reference in the KLC’s letter of 7 September 2011, and the submission made on behalf of the applicant on 5 September 2011, to the Amendment Application enabling the Goolarabooloo to register their Determination Application;

(c)    the references to the urgent need for a meeting in Chalk & Fitzgerald’s letters of 16 December 2011, 19 January 2012 and 31 January 2012;

(d)    the urgency noted in the resolution adopted by the GJJ claim group at the meeting on 22 February 2012;

(e)    references at the meeting of the JJ descendants on 29 May 2012 to there being "no time" to hold a meeting of the GJJ claim group;

(f)    the Notices of Default and Suspension issued by the State, the State’s submission in relation to the June 2012 Discontinuance Application, and the fact that the GJJ claim group nevertheless held a further meeting in February 2013 to consider the effect of discontinuance on the Browse Agreements and nevertheless voted to proceed with the Current Discontinuance Application; and

(g)    the Supreme Court proceedings brought by Mr Phillip Roe and the correspondence from Chalk & Fitzgerald on 5 March 2013.

The submissions

The applicant

88    The applicant read the following affidavits:

1.    Jacki Lynn Cole sworn 12 February 2013 (Ms Cole); and

2.    Anthony Watson sworn 28 March 2013 (Mr Watson).

89    The applicant submits that it does not intend to prosecute its substantive application. No members of the GJJ claim group have sought to be joined to oppose the grant of leave to discontinue. It submits that, by reason of the ongoing dispute between the Jabirr Jabirr members and the Goolarabooloo and Walman Yawuru members of the GJJ claim group about who are the Aboriginal persons who hold the native title rights and interests in relation to the GJJ claim area, it is both clear that each group wishes to pursue separate Determination Applications, as well as highly unlikely that the applicant could or would progress the GJJ Determination Application towards a consent determination of native title or trial.

90    This submission, which I accept, is supported by the following:

(a)    The decision of the Jabirr Jabirr members of the GJJ claim group in December 2009 that the Goolarabooloo are not part of Jabirr Jabirr society.

(b)    The breakdown of the GJJ claim group meeting held in Broome on 7 April 2010 and the separate meeting of the Jabirr Jabirr members held on that day at which they resolved to take steps to have the GJJ Determination Application dismissed.

(c)    The lodging of a separate and overlapping Jabirr Jabirr Determination Application in May 2010.

(d)    The proceedings brought in this Court by Mr Joseph Roe against the KLC in April 2010 in connection with the negotiation of agreements with the State and Woodside: Roe v Kimberley Land Council Aboriginal Corporation.

(e)    The decision of the GJJ claim group to remove and replace Mr Joseph Roe and Mr Cyril Shaw as the applicant for the GJJ Determination Application at a GJJ claim group meeting in August 2010. The GJJ claim group authorised Rita Augustine, Ignatius Paddy, Anthony Watson, Patricia Torres, Cecilia Djagween, and William McKenzie to be the applicant for the GJJ Determination Application.

(f)    Mr Joseph Roe’s opposition to his removal and replacement as one of the persons named as an applicant.

(g)    The lodging of a separate and overlapping Goolarabooloo Determination Application in January 2011.

(h)    The joining of the applicant in the Goolarabooloo Determination Application as a respondent party to the Jabirr Jabirr Determination Application (and vice versa).

91    However, it is of significance that despite all the internal divisions evidenced by the above, nonetheless, the applicant as representative of the GJJ claim group executed a Heads of Agreement in April 2009 and participated in lengthy negotiations with the other parties culminating in the Browse Agreements which were executed in June 2011.

92    The applicant submits, correctly, that the proceedings are not well advanced. No connection report has been provided to the State and no party has taken significant steps to prepare for trial. Moreover, further anthropological research is required to determine the nature and extent of native title rights and interests in the GJJ claim area: Roe v State of Western Australia (No 2) at [137]-[139].

93    Fundamental to the applicant’s submissions is that there is uncertainty as to who are the native title holders for the area of the LNG Precinct given the filing of the competing Goolarabooloo Determination Application and the JJ Determination Application. I will return to this important issue later.

The Goolarabooloo intervener

94    The Goolarabooloo read the following affidavits:

1.    James Konrad Walkley sworn 26 March 2013 and 3 April 2013.

95    The Goolarabooloo submit that an overarching premise of all of the State’s, Woodside’s and Waardi’s submissions is that the PPA is a valid agreement for the purposes of s 31 of the NTA, together with the further premise that the consent of the NTP under the PPA to the issuing of taking orders pursuant to replacement notices issued in substitution for the original notices held to be invalid under the Land Administration Act, is effective to enable a valid taking order to be issued under the provisions of that Act.

96    The validity of the PPA, and consequentially any taking orders, is presently the subject of relief sought in proceedings in the Supreme Court of Western Australia brought by Phillip Roe against the State and other parties to the PPA. The matter is proceeding but has not yet been determined. I was informed that, on present indications, the Supreme Court is likely to hear the case in June 2013.

97    The State submits, correctly, that the proceedings do not involve any claim that the Second Replacement Section 29 Notice is invalid. However, the relief sought includes a declaration that any taking order made or purported to be made and registered under Pt 9 of the Land Administration Act, in respect of any new notice of intention issued in substitution or replacement for the original Section 29 Notice, relying upon any of the purported consents, agreements and acknowledgements by the NTP in the PPA, is or would be invalid.

98    These interveners acknowledge that it would be inappropriate in those circumstances for this Court to express any view as to the merits of Mr Philip Roe’s Supreme Court claims but add, somewhat inconsistently, that this Court should not assume for the purposes of determining this application that the PPA is valid and that the consent of the applicant would have been effective to authorise the issuing of a valid taking order in relation to the land the subject of the First Replacement Section 29 Notice. Counsel for these interveners did not make any submissions as to what the Court should assume.

99    They contend that, as a consequence, the essential factual premises upon which the State’s submissions on prejudice depend have not been established.

100    I do not accept this ultimate submission. The PPA is, on its face, a valid binding agreement. It is expressed, by cl 1.3, to be executed and take effect as a deed. The parties to it regard it as binding. The NTP, amongst others, has warranted that the PPA is valid and binding and enforceable as against it in accordance with its terms. Indeed, all the parties to the PPA are named as defendants in the Supreme Court proceedings. The applicant does not contend that the PPA is invalid. Nor do the State or Woodside. Nor does Waardi or Guumbarr. Philip Roe is not a party to the PPA, yet he seeks the invalidity declaration from the Supreme Court. I ought assume its present validity for present purposes. The exercise of my discretion should not proceed upon an assumption that the Supreme Court proceedings will be disposed of favourably to Mr Philip Roe. The Goolarabooloo submit that Mr Roe’s Supreme Court proceedings may of course cause delay to the issuing of any order in respect of the Second Replacement Section 29 Notice. Whether, and to what extent that will occur, I am, on the evidence before me, unable to say.

101    These interveners also point to potential barriers to a successful implementation of the Browse Agreements and a lack of evidence as to Woodside making its final investment decision by mid-year 2013 in favour of developing the LNG Precinct at James Price Point. They point in particular to:

(a)    the resolution of Mr Philip Roe’s Supreme Court challenge to the validity of the PPA;

(b)    the resolution of other proceedings commenced in the Supreme Court by Richard Hunter challenging the validity of the EPA approvals granted for the project under the Environmental Protection Act 1986 (WA);

(c)    the outcome of an application made by Phillip Roe, Richard Hunter and Joseph Roe to the Federal Minister under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), for a declaration preserving or protecting part of the area proposed for the LNG Precinct from injury or desecration;

(d)    the outcome of the Commonwealth approval process under the Environment Protection and Biodiversity Conservation Act 1999 (Cth); information in the public domain suggesting that at least one of the Browse Joint Venture partners (Shell) has an expressed preference for developing the Browse resource using FLNG (floating LNG) technology.

102    I note media reports on 12 April 2013, four days after the present hearing that Woodside has decided not to proceed with its involvement in the LNG Precinct, at least in the manner contemplated under the PPA.

The State

103    The State read the following affidavits:

1.    Joseph Roe sworn 28 July 2010 and 20 April 2012;

2.    Ignatius (Iga) Paddy sworn 5 August 2010 and 9 September 2010;

3.    Anthony Edward Watson sworn 7 August 2010;

4.    Rita Augustine sworn 9 August 2010;

5.    Justin Lee Edwards sworn 13 August 2010;

6.    Jacki Lynn Cole sworn 14 May 2012, 5, 11 and 14 June 2012 and 12 February 2013;

7.    Jeremiah Glenn Riley sworn 14 May 2012;

8.    Joseph Konrad Walkley sworn 15 May 2012 and 12 June 2012;

9.    Gary John Hamely sworn 21 May 2012, 11 and 12 June 2012;

10.    Domhnall Anthony McCloskey sworn 21 May 2012;

11.    Lise Helene Semeniuk affirmed 21 May 2013;

12.    Alexander Douglas Rorrison affirmed 12 June 2012; and

13.    Gail McGowan sworn 14 and 26 March 2013.

104    The State has an interest in:

(a)    facilitating the establishment of the LNG Precinct as a particular area to which industrial development associated with the development of gas fields adjacent to the Kimberley can be directed; and

(b)    ensuring that the very significant proposed economic benefits associated with the LNG Precinct flow to the Kimberley Indigenous Peoples as contemplated by the Browse Agreements.

105    The State submits that the prejudice which is likely to arise adversely to the interests of the State is set against the following background.

106    The proposed taking of land for the purposes of the LNG Precinct the subject of the Second Replacement Section 29 Notice is a future act for the purposes of the NTA. This relates to the precinct area, a supporting industrial area and a workers' accommodation area. In order for the taking to be valid (to the extent native title exists), s 28 of the NTA requires either the agreement of all native title parties to the doing of the future act or, following a negotiating period of at least 6 months: s 35(1) of the NTA, an arbitral determination that the act may be done which the NTA contemplates may take up to another 6 months, and possibly longer: s 36(1), (3) of the NTA. A person who is, within 4 months of the notification day, a registered native title claimant in relation to the relevant area becomes a native title party: s 30(1) of the NTA.

107    As I have already mentioned, a purpose of the Current Discontinuance Application (as with the earlier Amendment Application and the June 2012 Discontinuance Application) is to enable members of the Goolarabooloo claim group, who are currently also members of the GJJ claim group, to become registered native title claimants in their own right within the relevant notification period in respect of the Second Replacement Section 29 Notice, thereby gaining the procedural rights to which I have referred and facilitating opposition to the proposed LNG Precinct. Another purpose is to enable the Jabirr Jabirr to become registered native title claimants and gain those same procedural rights, although the manner in which any registered native title claimants in respect of a new Jabirr Jabirr Determination Application may seek to exercise those rights, is unclear.

108    The substantial benefits contemplated by the Browse Agreements are generally payable only if the LNG Precinct proposal in fact proceeds. If members of the Goolarabooloo, or for that matter the Jabirr Jabirr, become registered native title claimants and succeed in opposing the LNG Precinct proposal, or in delaying it to an extent that Woodside decides to pursue other investment opportunities, then most of the benefits associated with the LNG Precinct would not become available. It is by no means clear that this consequence has been explained to the GJJ claim group which, after all, entered into the Browse Agreements in the face of the divisions between the Goolarabooloo and Jabirr Jabirr which are no different now than they were in June 2011 when those agreements were executed.

109    Further, once the proposed new Determination Applications are lodged, the delivery of Benefits under the PPA (including those which accrue prior to the decision to proceed with the LNG Precinct proposal) is suspended under cl 7.2 of the PPA until such time as the new Determination Applications are determined.

110    The State submits that the decision to discontinue the GJJ Determination Application prior to 18 April 2013, for purposes which include opposing the doing of the future acts the subject of the Second Replacement Section 29 Notice, involves the applicant doing something to adversely affect the Takings, contrary to cl 5.2 of the PPA. It contends that the implementation of that purpose will also be inconsistent with other subclauses of cl 5.2 of the PPA. As I have said, I do not regard the applicant as having the relevant purpose but for reasons I have explained above, given its knowledge of this purpose of the Goolarabooloo, its application for leave to discontinue immediately or at least prior to 18 April 2013 is arguably, by facilitating the purpose of the Goolarabooloo, a breach of PPA cl 5.2(c).

111    The State has issued a Default Notice and a Suspension Notice in relation to the filing of the Current Discontinuance Application. Clause 24 of the PPA provides for the suspension of Benefits by the issue of a Suspension Notice if the default is not rectified. Benefits include Benefits under the Regional Development Agreement and the Browse (Land) Agreement.

112    The issue of a Suspension Notice under the PPA will also have the effect of suspending Benefits under cl 24.5(c) and 26 of the Regional Benefits Agreement. Benefits under the Regional Benefits Agreement are to be applied for the benefit of "Regional Beneficiaries", a term defined in cl 1.1 of the Regional Benefits Agreement, in a manner which includes members of the GJJ claim group.

113    Apart from the issue of the likely breach of the PPA, the discontinuance of the GJJ Determination Application presents a number of difficulties for the operation of the Browse Agreements. Some of those difficulties are explained in the State's previous Notice of Default in the letter from Department of State Development to the KLC dated 12 March 2013, and the letter from Waardi Ltd to the State and others dated 11 March 2013. The applicant has not issued a Notice of a Dispute under cl 42.1 of the PPA in respect of the State’s latest Default Notice and Suspension Notice. Even if it did, that clause requires the parties to follow a dispute resolution process under the PPA. However, once the GJJ Determination Application is discontinued, there will be no NTP, which as I have already observed is defined in cl 1.1 of the PPA by reference to the GJJ Determination Application, with whom the State can engage in that dispute resolution process.

Woodside

114    Woodside read the following affidavits:

1.    Daniela Tonon sworn 14 and 21 March 2013 and 3 April 2013.

115    Woodside’s submissions to a significant extent reflect those of the State. There are some differences, but mainly in emphasis, except that Woodside submits that the application for leave ought, in the present circumstances, be dismissed. As with the State’s submissions, Woodside characterise the PPA as of central importance.

116    There are a number of features of the PPA which, Woodside submits, bear on this application to discontinue the proceedings. In particular that:

(a)    the PPA was entered into by applicant in their capacity as the applicant in the proceedings;

(b)    the PPA was entered into pursuant to, and in the performance of, procedural rights under the NTA, exercised on behalf of, and for the benefit of all members of the GJJ claim group in the proceedings; and

(c)    substantial benefits are to be provided to the native title claim group and the Kimberley Indigenous People under the PPA.

117    Woodside contends that most significantly, for present purposes, the PPA was entered into by the applicant in its capacity as the applicant in the proceedings. As I mentioned, if, and when, the proceedings are discontinued, the NTP within the meaning of the PPA will cease to exist and, insofar as the PPA requires performance by the NTP for its effective operation, that performance will be rendered impossible.

118    Woodside raises two separate and distinct issues of prejudice and public interest which it contends arise in relation to the application:

(a)    whether it is in the public interest for the Court to make orders discontinuing the proceedings prior to the parties resolving certain outstanding issues under the PPA as outlined below; and

(b)    whether, independently of the performance of the PPA, the Court should exercise its discretion to refuse to make orders to discontinue prior to 18 April 2013, for the reasons submitted by the State.

119    Woodside submits that:

(a)    it is not in the interests of the parties or the public interest for the proceedings to be discontinued, with the consequence that the NTP within the meaning of the PPA will cease to exist, until the applicant has attended to the finalisation of the Proponent Benefits Fund (PBF) Trust;

(b)    Woodside submits that, logically, this is the first issue of public interest to be addressed and that in this regard, the date of the discontinuance is immaterial, it is simply a matter of the matters being attended to before the opportunity for the applicant to give effect to the PPA is permanently lost; and

(c)    alternatively, in the event that the Court is not satisfied that those matters outstanding under the PPA should be attended to prior to any discontinuance, the Court will need to have regard to the prejudice to the State’s ability to establish an LNG Precinct and provide secure tenure to proponents, and determine whether that prejudice outweighs the applicant’s interest in having the matter discontinued prior to 18 April 2013.

120    This first issue is essentially the same as that pointed to by the Waardi and Guumbarr interveners. I deal with these below but they form part of Woodside’s submissions in a general sense. Woodside has raised the following additional features of these problems.

121    On 6 March 2013, Guumbarr Limited issued a Notice of Dispute to Woodside under cl 42.1 of the PPA. The notice alleges that Woodside has failed to notify Guumbarr of its approval of the Trust Deed the subject of cl 22.5(g)(i) of the PPA. This is a reference to the Proponent Benefits Trust Fund Deed. In fact there were two separate Deeds. I shall nonetheless refer to them as the “PBF Trust Deed” as this is how the parties describe them.

122    Although it sought clarification from the KLC and Latro Lawyers, acting for the NTP, Woodside is presently unable to be satisfied that the NTP has determined the specific objects and rules of the PBF Trust Deed in accordance with cll 17.4 and 17.5 of the PPA.

123    If the proceedings are discontinued before the issue of whether the NTP has determined the specific objects and rules of the PBF Trust Deed is resolved then, by reason of the disappearance of the NTP as a legal entity, the dispute under the notice will not be able to be resolved in accordance with the dispute resolution procedure in cl 42 of the PPA, or at all.

124    The finalisation of the PBF Trust Deed is essential for the payment of the Foundation Proponent’s (Woodside’s) Benefits under the PPA. In accordance with Sch 5, cl 2 of the PPA, the payment of Benefits under the PPA are to be paid to the Proponent Benefits Trust when they fall due. I find that this cannot occur while the dispute under the notice remains unresolved.

125    As I have mentioned, between execution of the PPA and the date of these submissions, certain Benefits (as defined in cl 6.1 of the PPA) have become due to the NTP. There presently exists, however, uncertainty about how the Benefits are to be distributed to the ultimate recipients of the Benefits whether that be the GJJ claim group or the Kimberley Indigenous People.

126    Woodside submits that there are also uncertainties around the role of Waardi.

127    It contends that if the proceedings are discontinued and there is no longer a NTP then there is no certainty as to Waardi’s continued role, or how it might otherwise operate and manage the Economic Development Fund, Indigenous Housing Fund and Proponents Benefits Fund; or how it might hold and manage the Grant Land.

128    Waardi has approached the applicant with a proposed solution to this uncertainty. Although the applicant has not consented to Waardi’s proposal, it appears that it was open to an alternative solution. However, no such alternative solution has yet emerged.

129    Woodside submits, correctly, that if the proceedings are discontinued before these matters can be addressed then, by reason of the disappearance of the NTP as a legal entity, the matter will remain unresolved and will be unable to be resolved. Further, the issue will be unable to be resolved by agreement at any meeting without a NTP to participate in the discussions.

130    Woodside submits that the public interest in resolving the dispute with Guumbarr and the arrangements regarding the administration of Benefits and the role of Waardi outweighs the interests of the applicant (if any) in having the proceedings discontinued by no later than 18 April 2013.

131    Woodside also submits, and I accept, that the continuation of the proceedings, in order to preserve the existence of the applicant as a party to the PPA, does not impose any additional burden on the applicant in the proceedings themselves. That is, there is no particular step required to be taken in the proceedings to which the applicant would be compelled to attend.

132    The applicant’s submissions in support of the grant of leave to discontinue refer only to the fact that the applicant does not intend to prosecute the proceedings and has instructed the KLC to seek leave to discontinue the proceedings, such that there is no useful purpose to be served in allowing the GJJ Determination Application to continue. As Woodside observes, that submission fails to address the crucial issue as to whether it is in the public interest, and the interests of the parties, for that discontinuance to take effect immediately.

133    When dealing with that issue the applicant’s submissions focus, almost entirely, on the issue raised by the State, namely the potential prejudice to the State’s capacity to facilitate the establishment of an LNG Precinct, and the effect of new native title claims being lodged prior to 18 April 2013. Whilst the applicant refers to Woodside’s submission that there are two separate and distinct issues of prejudice and public interest that arise in relation to the application, it did not, either in its written or oral submissions, engage with those submissions directly.

134    The first of those issues, which is not substantively addressed by the applicant, has nothing to do with the potential for new Determination Applications being lodged prior to 18 April 2013. Rather, it is concerned with the finalisation, by the applicant, of disputes under the PPA that presently exist and which cannot be addressed following discontinuance of the proceedings, whether before or after 18 April 2013.

135    It seems to me that these present issues: how the parties are to deal with the dispute the subject of the Notice of Dispute; the Benefits presently due under the PPA; and the uncertainties around the role of Waardi (Present Issues), are capable of resolution but have not been addressed by the applicant.

136    As to the Notice of Dispute, all that is required is for the applicant to determine, or confirm that it has determined, the objects and rules of the PBF Trust Deed.

137    Notwithstanding the submission by Waardi that such a determination or confirmation has already occurred, there is a real dispute as to whether this is the case.

138    It would, in my view, be a simple matter to resolve this issue. Woodside has specifically asked the solicitor on the record for the applicant to confirm, unequivocally, on behalf of the applicant, that the NTP has determined the specific rules and objects of the PBF Trust in accordance with cll 17.4 and 17.5 of the PPA.

139    Notwithstanding that request, no such confirmation has been received.

140    The applicant’s solicitor has suggested that it is a matter to be addressed by Latro Lawyers. Those lawyers, in response to a further request by Woodside as to whether they have instructions on this issue, have advised that they do not. Mr Watson, one of the persons named as the applicant who is also the person who refused to sign the letter about the unconditional nature of the approval, does not refer to the issue at all or to the requests from Woodside directed to his solicitors in his affidavit in support of the Current Discontinuance Application.

141    I will refer again to these matters in greater detail when considering the submissions of Waardi and Guumbarr.

142    Woodside submits that the public interest in not discontinuing the proceedings until these issues are addressed is quite separate and distinct from whether or not there is a need to register alternative native title claims by subgroups of the GJJ claim group on or before 18 April 2013.

143    Further, while Woodside acknowledges, as it must, that cl 7.2 of the PPA contemplates the discontinuance of a native title claim, it submits that the applicant’s submissions fail to deal with the above issues in that context. I accept this submission.

Waardi and Guumbarr

144    The Waardi Limited and Guumbarr Limited interveners read the following affidavits:

1.    Adam Paul Levin sworn 15 and 27 March 2013; and

2.    John Robert Reynolds sworn 28 March 2013.

145    Pursuant to the terms of the PPA, Waardi Limited and Guumbarr Limited were incorporated on 7 February 2012 and 13 March 2012 respectively by the NTP (the applicant). Waardi has ratified the PPA.

146    Waardi is a company limited by guarantee owned and governed by members of the GJJ claim group, for the purpose of taking on the role of the “Administrative Body” under the PPA: cll 20 and 21 of the PPA. One of the key functions of the Administrative Body is to administer the monetary and non-monetary benefits payable to the Native Title Claim Group as defined under the PPA: cll 21.1(b), 21.2(a) and (b) of the PPA.

147    The Native Title Claim Group is, as I have already stated, the GJJ claim group. Accordingly, I will, for reasons of uniformity and ease of understanding, refer to this group as the GJJ claim group.

148    Pursuant to a Ratification Deed dated 4 July 2012 and signed by all of the parties to the PPA, Waardi was formally appointed as the Administrative Body and became a party to the PPA.

149    Waardi’s constitution provides that all members of the GJJ claim group are eligible to become members of Waardi, and as at March 2013, Waardi had 239 members.

150    Waardi’s governance structure provides that each of the 10 families comprising the GJJ claim group have a right to appoint a director to the board. In addition, three independent directors sit on the Waardi board.

151    Guumbarr, a company limited by guarantee, was incorporated for the purpose of taking on the role of the “Corporate Trustee” under the PPA. Guumbarr’s objections include acting as trustee in relation to the trusts to be established under the PPA to receive monies paid by the State and Woodside: cll 20 and 22 of the PPA.

152    Pursuant to a Ratification Deed dated 4 July 2012 and signed by all parties to the PPA, Guumbarr was formally appointed as the Corporate Trustee and became a party to the PPA.

153    Waardi is the sole member of Guumbarr. The Guumbarr board of directors includes three community directors from the GJJ claim group and two independent directors, one of whom is nominated by the State.

154    As I mentioned, whilst these interveners support the application for leave to discontinue, they submit that it ought be subject to conditions.

155    Waardi and Guumbarr invited the Court to consider their submissions against the following background:

(a)    On 6 May 2011, the GJJ claim group voted to direct the applicant to do all thing necessary to enter the PPA (and associated agreements);

(b)    On 30 June 2011, in accordance with the GJJ claim group’s direction, the applicant, as the NTP, signed the PPA on behalf of the GJJ claim group.

(c)    On 6 February 2013, the GJJ claim group resolved to direct the applicant to discontinue these proceedings, but made no specific further decisions regarding the PPA.

(d)    The PPA contemplates and provides for a discontinuance of these proceedings and is expressly stated “to continue in full force and effect” after any such discontinuance; cl 7.2 of the PPA.

(e)    The persons named as applicant have a duty of care, akin to a fiduciary duty, to the GJJ claim group requiring diligence, good faith and care and responsibility: Foster v Copper Strike Ltd (2006) 200 FLR 182 at [39]; Moore v Mungeranie (2005) 193 FLR 62.

(f)    The parties to the PPA are required do all things and execute all documents necessary to give full effect to the PPA: cll 5.2(a) and (b) and 57(a) of the PPA. Further, they submit that at common law the parties also have a duty to co-operate, and may have an additional duty to act in good faith: Secured Income Real Estate (Australia) Limited v St Martins Investments Proprietary Limited (1979) 144 CLR 596 at 607; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 192.

156    The particular adverse consequences which may follow upon an unconditional discontinuance concern a specific accrued benefit of $13 million and ongoing rights and benefits which would accrue, prior to a final determination of native title, to the GJJ claim group under the PPA.

157    Under the PPA, the GJJ claim group is entitled to significant monetary and non-monetary benefits. I have already referred to some of this but it is convenient to repeat these together with other provisions of the PPA to which these interveners point. The benefits include:

(a)    monetary payments from the State including $5 million to fund Waardi: cl 15; $10 million for an Economic Development Fund: cl 9; and $20 million for an Indigenous Housing Fund: cl 10;

(b)    monetary payments from Woodside including $33 million in milestone payments: item 2.2 of Sch 5; $3.6 million per annum for the life of the project: item 2.3 of Sch 5.; $400,000 per annum to fund Waardi: item 2.4 of Sch 5; $1.4 million for the first 10 years of the project (and $400,000 per year thereafter) for the Business Development Organisation: item 4.1 of Sch 5; $8 million for a Reading Recovery Program: item 5.5(b) of Sch 5; and $10 million for a Ranger Program: item 5.6(b) of Sch 5;

(c)    the provision of employment and training: cl 33, item 5.2 of Sch 5 and Sch 12; and business development and contracting opportunities: cl 34, items 4.2 and item 5.3 of Sch 5 and Sch 13;

(d)    freehold title to 2,900 hectares of land; transfer of the housing land for the NTP including 25 residential lots, 6 house and land packages and 15 hectares of englobo developable land: cl 13; and transfer of the Waardi office land: cl 12.

158    Some monetary and non-monetary Benefits have already accrued to the NTP, Waardi and Guumbarr: cl 12 and 13 and items 2.2(a), 4.1(a)(i)(ii) and 4.2 of Sch 5 of the PPA. The bulk of the Benefits are to be delivered by the State and Woodside in the future.

159    As noted above, the PPA provides for Woodside to make significant payments into a PBF. Woodside were due to pay a total of $13 million on the commencement date of the PPA subject only to the PBF being established: item 2.2 of Sch 5 of the PPA.

160    By executing the Ratification Deeds, the applicant, as the NTP, authorised Guumbarr to prepare the PBF Trust Deed: cl 22.5(a) of the PPA.

161    On 23 November 2012, Guumbar issued the State and Woodside with two separate PBF Trust Deeds and a Statement of Compliance confirming that in Guumbarr’s opinion the PBF Trust Deeds complied with the provisions of the PPA. The State and Woodside were invited to approve the PBF Trust Deeds as “not inconsistent with” the PPA in accordance with clause 22.5(g)(i) of the PPA.

162    The State approved of the PBF Trust Deeds as “not inconsistent with” the PPA on 14 December 2012.

163    Notwithstanding the State’s position, on 21 December 2012, Woodside advised that they did not approve the PBF Trust Deeds in accordance with cl 22.5(g)(i) of the PPA. Woodside asserted that in addition to the Ratification Deeds signed by the NTP (the applicant), the NTP was required to specifically certify that it had determined the objects and rules of the PBF Trust Deeds.

164    On 19 February 2013, Latro Lawyers, on behalf of the NTP, wrote to Jackson McDonald (acting for Guumbarr) attaching two letters.

(a)    Determination Letter: A letter addressed to Woodside confirming that the NTP had determined the rules and object of the PBF Trust Deeds signed by two of the three named persons who together are the applicant (Rita Augustine and Ignatius Paddy). The third named person, Mr Anthony Watson, had not signed the letter but a space was provided for his signature.

(b)    Conditions Letter: A letter to Guumbarr signed by the three named persons who together are the applicant setting out conditions which the applicant required Guumbarr to agree in relation to the $13 million due from Woodside. The conditions were as follows:

(i)    following a future discontinuance of this claim Waardi was to hold the $13 million due from Woodside on commencement of the PPA on trust until the separate anticipated claims to be registered by the Jabirr Jabirr and Goolarabooloo claim groups were finally determined;

(ii)    an amount of up to $3 million was to be made available to pay the legal and other costs of the separate anticipated claims to be registered by the Jabirr Jabirr and Goolarabooloo claim groups; and

(iii)    the $3 million was to be provided equitably as between the future separate anticipated claims foreshadowed by the Jabirr Jabirr and Goolarabooloo.

165    Significantly, the Conditions Letter signed by all three named persons expressly stated “The NTP have determined the specific objects and rules of the PBF as required by the Agreement” (the PPA). The covering letter from Latro Lawyers indicated that Mr Anthony Watson would sign the Determination Letter addressed to Woodside only if Guumbarr accepted the conditions in the Conditions Letter.

166    Jackson McDonald responded to Latro Lawyers on 21 February 2012 stating that:

(a)    the first condition was inconsistent with the decision of the GJJ claim group as embodied in the PPA. The PPA provided that only monetary Benefits that became due and payable after a discontinuance were to be held in an interest bearing account by Woodside and the State;

(b)    all three conditions were contrary to law because Guumbarr was required to hold monies in accordance with the terms of the PBF Trust Deeds and could not fetter its discretion as trustee; and

(c)    without fettering its discretion it was favourably disposed to providing money to fund any future separate native title claims registered on behalf of the Jabirr Jabirr and the Goolarabooloo claim groups.

167    Despite further correspondence and a Notice of Dispute being issued to Woodside in relation to the $13 million payment due upon commencement of the PPA, the current position is as follows:

(a)    Woodside refuses to make the $13 million payment into the PBF without the NTP specifically certifying to Woodside that the NTP has determined the objects and rules of the PBF Trust Deeds;

(b)    Mr Watson refuses to sign a letter addressed to Woodside confirming the NTP has determined the rules and objects of the PBF unless Guumbarr agrees to his conditions; and

(c)    Guumbarr is not, as a matter of law, able to accept those conditions because they are inconsistent with the PPA and its position as trustee.

168    I am unable to see any lawful basis for the imposition of the conditions proposed by Mr Watson. Senior counsel for Waardi and Guumbarr submits that the imposition of such conditions is inconsistent with the PPA, and on the basis of the information currently available, appears at odds with the fiduciary duties owed to the GJJ claim group. I think this submission is correct.

169    It may well be that the answer to this question is in Waardi’s own hands, as it has been authorised by the NTP to determine the specific objects and rules of the PBF Trust Deed in appointing Waardi as the Administrative Body under the PPA and the Waardi Ratification Deed, and further signing the Guumbarr Ratification Deed and in authorising Guumbarr to prepare the Trust Deeds. However, I cannot resolve that question for present purposes. It is but another example of the kind of difficulty which would inevitably be thrown up were there to be an unconditional discontinuance.

170    As soon as these proceedings are discontinued, the NTP, one of the parties to the PPA, will cease to exist. That, as I have already said, is because the applicant in these proceedings is defined as the NTP under the PPA.

171    Clause 7.2 of the PPA specifically provides that in the event of a discontinuance of these proceedings and new native title claims being registered:

(a)    the PPA continues “in full force and effect”, save that the obligations of the State and Woodside to provide Benefits cease from the date of dismissal (subject to what follows): cl 7.2(a);

(b)    the State and Woodside must hold all monetary Benefits payable under the PPA in an interest bearing account pending a determination of native title by this Court. This is the combined effect of cll 7.2(b)(i)(A) and 7.2(c) which only suspends Benefits which are “payable” and can be held in an interest bearing account;

(c)    the monetary Benefits are then to be transferred to an entity nominated by the party who is ultimately found by this Court to have native title over land which is part of the LNG Precinct;

(d)    the State must, nevertheless, deliver to Waardi non-monetary Benefits such as the land package to which I have referred which it would otherwise have delivered to the NTP in a manner consistent with Ch 3 of the PPA: cl 7.2(b)(i)(A); and

(e)    Woodside may elect to deliver any non-monetary Benefits.

172    These interveners correctly submit that notwithstanding the provisions outlined above, the PPA does not fully address the fact that on the date these proceedings are discontinued a party to the agreement (i.e. the NTP) ceases to exist. From that point in time until a final determination of native title (the Pre-Determination Period), there is no native title party represented by the applicant for the purposes of the Browse Agreements. This raises issues as to whether the rights and obligations in respect of the GJJ claim group no longer exist; or whether they continue to exist in respect of every member of that claim group represented by the applicant, but that there is no representative of these members of the claim group with whom to deal.

173    The NTP ceasing to exist as an entity represented by the applicant in the proceedings creates a number of problems for the delivery of Benefits and the ongoing operation of the PPA during the Pre-Determination Period. During this period there is no entity to represent the Kimberley Indigenous People.

174    The PPA:

(a)    provides that the other parties are required to negotiate or agree with the NTP on a range of future matters: cll 4.3, 21.15, 22.8, 44; and items 20.1-20.3 and 21 of Sch 6;

(b)    provides that the NTP is to receive notice of, be consulted about or review, comment and negotiate on a range of matters: cll 6.5(b), 32.2, 32.3; 33.2, 34.2, 45; items 7-9 of Sch 4; items 5.4, 5.5, and 7 of Sch 5; item 6 of Sch 12; item 5 of Sch 13 & items 5, 7, and 8 of Sch 14;

(c)    provides the NTP with the right to request the transfer of accommodation facilities to Waardi: cll 18 and 39;

(d)    provides for the NTP to be actively involved in cultural heritage management: cl 31 and Sch 7; cultural awareness training: cl 35; environmental management: cl 32 and Sch 8; and the management of decommissioning: cl 38 and Sch 11;

(e)    anticipates the NTP having a central role in the delivery of a range of non-monetary Benefits: i.e. employment and training: cl 33; items 4.2 and 5.2 of Sch 5 and Sch 12; and business development and contracting opportunities: cl 34, item 5.3 of Sch 5 and Sch 13;

(f)    provides for the NTP to takes certain steps as a precondition to particular funds being released (although as noted above during the Pre-Determination Period these monies would be paid into an interest bearing account): cl 8.4 and item 4.1 of Sch 5;

(g)    provides the NTP with the right to negotiate additional Benefits from other commercial parties who wish to negotiate entry into the LNG Precinct (Additional Proponents) and sets parameters for those Benefits: cll 19 and 36.2;

(h)    provides for the NTP to have 5 representatives on the Precinct Management Committee and to be members of the Precinct Control Group: cll 27.2 and items 4, 5.1, 7 and 8 of Sch 6; and

(i)    provides for the NTP to be the Site Manager of the Third Party Contractors Site and enter an agreement with LandCorp and undertake other functions in that respect: cl 28.4 and item 5.4 of Sch 5.

175    Waardi and Guumbarr submit that if leave is granted to discontinue the proceedings before these matters are addressed there will be no one to take on the rights and role of the NTP on behalf of the GJJ claim group under the PPA during the Pre-Determination Period, and yet by its express terms the PPA continues in force and effect. Accordingly, this of itself is likely to generate considerable prejudice, not only to the State and Woodside but also to the members of the GJJ claim group.

176    The PPA does not expressly address how to deal with the matters set out above, although significantly, in a number of instances, it does provide for Waardi to take over or be delegated functions from the NTP: cl 7.2(b)(i)(A); 11.5(e); 13; item 3 of Sch 8; item 3 of Sch 9; item 3 of Sch 11.

177    The PPA reflects the current decision of the GJJ claim group on its subject matter. The GJJ claim group, by the applicant, as I have mentioned, made the Browse Agreements, including the PPA, despite the divisions which had emerged as between its members and, broadly speaking, between the Goolarabooloo members and the Jabirr Jabirr members.

178    It is probable that the parties to the PPA have contractual and common law obligations of the kind to which I have referred to address what should occur in the Pre-Determination Period, prior to any discontinuance of these proceedings.

179    Waardi and Guumbarr raised their concerns regarding this issue and suggested possible solutions to the State, Woodside and the applicant’s lawyers in correspondence dated 21 February 2013 and 11 March 2013.

180    As at 28 March 2013, the State and Woodside had not responded substantively to this correspondence.

181    The applicant’s lawyers have advised that the NTP will not agree to assigning their rights and obligations under the PPA to Waardi but might consider assigning them to another entity. The identity of any alternative entity to represent and act on behalf of the GJJ claim group, even given their internal conflict, is not clear but the NTP appears to accept that some form of assignment is one means of addressing the issue.

182    At this stage, there has been no substantive endeavour by the parties, at least not any involving Waardi or Guumbarr, to resolve the issue of who should represent the members of the GJJ claim group in the Pre-Determination Period for the purposes of the PPA.

183    In these circumstances, Waardi has prepared and circulated a draft Deed of Assignment and Assumption (Deed) which it considers to be the best means of addressing the problem and protecting the rights and benefits of the GJJ claim group under the PPA.

184    The objective of the Deed is to ensure that to the greatest possible extent the rights and benefits of the GJJ claim group under the PPA are preserved and protected following any discontinuance.

185    The Deed is based on the principles set out below:

(a)    The GJJ claim group has authorised both the entry into the PPA and the discontinuance of these proceedings.

(b)    Every individual member of the existing GJJ claim group is eligible as of right to be a member of Waardi.

(c)    The Deed provides an alternative entity (Waardi) to represent and protect the interests of the members of the former GJJ claim group following a discontinuance of these proceedings and the NTP ceasing to exist.

(d)    Upon discontinuance, the authorised and agreed decision making process provided under the NTA for the GJJ claim group will cease to exist although this claim group continues to be relevant under the PPA.

(e)    The governance and decision making mechanism of a corporation would then allow Waardi to engage with all of the members of the former GJJ claim group after these proceedings are discontinued.

(f)    The Deed provides a mechanism for Waardi, in the future, to assign matters to any other third party on instruction of the members of the former GJJ claim group.

(g)    The Deed provides for certain decisions/acts under the PPA to be reserved for a decision by the members of the former GJJ claim group through a general meeting of Waardi.

Conditions proposed

186    Waardi and Guumbarr submit that conditions that might appropriately be imposed on a discontinuance could include any of the following:

(a)    the NTP (again) confirm to Woodside that the NTP has determined the rules and objects of the PBF;

(b)    the parties participate in a mediation before a Registrar of this Court concerning who should represent the members of the GJJ claim group in the Pre-Determination Period for the purposes of the PPA; and/or

(c)    the applicant convene a meeting of the GJJ claim group to determine who should represent its members in the Pre-Determination Period for the purposes of the PPA.

187    The first condition is suggested to ensure that the accrued benefit of $13 million will be received by Waardi, when there does not appear to be any real dispute about the fact that it should be paid.

188    The second condition is suggested to ensure that the parties at least meet and attempt to reach a resolution concerning the important issue of who should represent the interests of the members of the GJJ claim group in the Pre-Determination Period for the purposes of the PPA. If that mediation fails, then the discontinuance may take effect, but the Court will have ensured that an important issue has been properly considered.

189    The third condition is advanced on the basis that members of the GJJ claim group approved the PPA in the first place, but apparently did not consider the effect of the discontinuance upon the PPA when they voted in favour of discontinuance.

Consideration

Prejudice to the interests of the State and other parties

190    The negotiation and entry into the Browse Agreements, as I have said, involved an exercise by the applicant, acting with the authorisation of the entire GJJ claim group, of certain procedural rights to which the GJJ Determination Application gave rise. This occurred despite the existence, for a number of years, of division within the GJJ claim group as between its Goolarabooloo and Jabirr Jabirr members. This was their group choice in the face of those divisions.

191    The present applicant could have, confronted by these divisions, applied to discontinue the proceedings before entering the Heads of Agreement in 2009, and certainly before entering the Browse Agreements. Had they done so, the extraordinary difficulties which will ensue if unconditional leave to discontinue is granted, would not have eventuated. However, they did neither of those things. Rather, they committed to the Heads of Agreement and then the Browse Agreements expressly warranting that they had the authority to do so on behalf of the entire GJJ claim group and in full knowledge, as expressed in the PPA, that the State and other parties were conducting themselves in reliance on those warranties.

192    The persons who are the applicant, in particular, warranted at cl 3.1(c), in effect, that the GJJ claim group had authorised them to enter into the PPA in the manner required by the NTA on behalf of the GJJ claim group, and that as the NTP, it had the full power and authority to enter into and perform the obligations of the NTP.

193    Further, by PPA cl 4.1, the applicant as the NTP, in effect, consented to and covenanted it would not object to the doing of the future act comprised in the, relevantly, Replacement Section 29 Notice pursuant to section 31(1)(b) of the NTA.

194    Relevantly, the State and Woodside, pursuant to PPA cl 3.6(a) and (b), were entitled to rely upon the warranties given by the applicant, as the NTP, as well as consents given by it.

195    Importantly, the NTP covenanted that it would not do anything to adversely affect the “Takings”. “Taking” under the PPA means “the taking of rights … in the land comprised in the Precinct Notices …”. “Precinct Notices” under the PPA includes, relevantly, the Second Replacement Section 29 Notice.

196    I have concluded that by seeking leave to discontinue unconditionally and to take effect before 18 April 2013 the applicant, as NTP under the PPA, given its knowledge of the purpose of the Goolarabooloo is by means of this grant of leave is to put it in a position to oppose the Takings upon the Goolarabooloo Determination Application being registered before 18 April 2013. Thus, arguably, the applicant is facilitating the aim of the Goolarabooloo pursuant to its purpose. This again arguably, is a breach of the NTP of PPA cl 5.2(c).

197    The State’s engagement with the procedural rights conferred on the applicant came at significant public expense. In addition to the substantial commitment of the time of senior public service officers, as at June 2012, the State had provided $24 million, of which approximately half has been reimbursed by Woodside, in funding to the KLC for matters related to the negotiation, administration and execution of the Browse Agreements; paid approximately $2.6 million to its own external legal advisers; and its internal legal advisers have spent over 3000 hours, in relation to the negotiation, documentation and implementation of the Browse Agreements. The total expenditure on development of the LNG Precinct by the State so far is in the order of $42 million, of which approximately $16 million has been recouped from Woodside.

198    The State, in addition, has already provided $5 million in benefits to the GJJ claim group as a result of entry into the PPA.

199    That public expense has been incurred in order to obtain the consent of the applicant, representing the whole of the GJJ claim group, to the future acts relating to the LNG Precinct. The likely consequence of the GJJ Determination Application being discontinued before 18 April 2013 is that, at the time referred to in s 30 of the NTA, the applicant will not exist as a Native Title Party and two new registered claimants, at least one of whom is opposed to the LNG Precinct proposal, will be claiming procedural rights in respect of the Second Replacement Section 29 Notice. That has the potential to cause a delay of 12 months or more to the development of the LNG Precinct; and if no agreement is reached with the new native title parties and the National Native Title Tribunal so determines, the Takings necessary to establish the LNG Precinct may not go ahead at all.

200    There is, I find, a real risk in those circumstances that the opportunity to secure Woodside as a Foundation Proponent or other proponent will be lost, and the future development potential of the LNG Precinct will be significantly impaired, if not extinguished.

201    The real possibility of wasted public expense were that to happen constitutes a significant prejudice to the State arising from the proposal to discontinue the GJJ Determination Application prior to 18 April 2013.

202    Furthermore, the potential losses to the State’s economy, the members of the GJJ claim group and the Kimberley Indigenous Peoples if the LNG Precinct does not go ahead are enormous.

203    I am aware from media reports published on the day of this judgment that Woodside has announced to the ASX that it does not propose to proceed with its involvement in the LNG Precinct at least in its present form. I cannot say what alternative role it will, if any, finally perform.

204    However, I do not consider that this fact which has belatedly emerged changes the position in so far as concerns whether leave to discontinue immediately should be given immediately or upon conditions.

205    Clause 7 of the PPA contemplates discontinuance. However, I agree with the submissions of the State and Woodside that the clause must be read in the context of the PPA as a whole, including cll 3, 4 and 5. If, as will be the case after 18 April 2013, the GJJ Determination Application can be discontinued in a way that does not adversely affect the Takings, then such discontinuance of itself will not be a breach of the PPA. It is well arguable that as matters stand, presently the NTP is in breach of the PPA in the way described by the State and which asserted breach supports its Notice of Suspension.

206    The issue presently before the Court is the exercise of a discretion in relation to the discontinuance of the GJJ Determination Application. The State submits, and I accept, that the prejudice to the State and others, including the Kimberley Indigenous Peoples, outlined above, occasioned by the applicant acting in a manner inconsistent with its contractual warranties and promises, which arose out of the exercise by the applicant of procedural rights it acquired directly as a result of the making of the GJJ Determination Application, is a relevant, and in the present circumstances should be a predominant, factor in the exercise of the discretion. The Court ought not facilitate the applicant taking a step in the proceedings which is very arguably contrary to their contractual obligations and causes prejudice to respondent parties and others.

207    This is not a situation where the Court is being asked to permit a claim to be maintained for a collateral purpose related to the “Right to Negotiate” process: Wiri People No 2 v State of Queensland [2006] FCA 804 at [12]. The State accepts that the GJJ Determination Application may be discontinued, if that is what the applicant and GJJ claim group wish to do. However, the State submits it should be done in a way that does not cause prejudice to the State.

Abuse of process

208    The State has also submitted further or in the alternative that the application for leave to discontinue is an abuse of process because:

(a)    to the extent a dispute about who holds native title in the area of the GJJ Determination Application is a purpose of the Current Discontinuance Application, it is not the predominant purpose;

(b)    the predominant purpose is that referred to above, which makes the Current Discontinuance Application an abuse of process.

209    I reject the general submission. I have little doubt that the Goolarabooloo, in particular, want to achieve a place at the negotiation table as a registered applicant in respect of, at least, the future act the subject of the Second Replacement Section 29 Notice, and that’s its objective is to oppose that future act being done and to generally oppose the LNG Precinct being established. However, I do not consider the leave application, which is by the applicant, as having that predominant purpose or at least not the whole of that purpose. That said, as I have already stated, I infer that the applicant had, in contemplation, what the purpose of the Goolarabooloo was, even if it was not its own purpose.

210    I think that the resolutions carried on 5 and 6 February this year at the GJJ claim group meeting were, in the overall, not voted for with that entire purpose, although it probably was at the forefront of the Goolarabooloo attendees who voted. This is not to say, particularly given Resolution 3(b) passed, that it was not the purpose of the GJJ claim group to discontinue before 10 April 2013 in order that both prospective native title claim groups could acquire procedural rights in respect of, amongst other things, the Second Replacement Section 29 Notice prior to 18 April 2013. This, arguably, as I have mentioned, involved the applicant knowingly facilitating the achievement of the Goolarabooloo purpose and thereby putting itself in breach of the PPA cl 5.2(c), by applying for a grant of leave to discontinue to take effect prior to 18 April 2013 and thereby do something to adversely affect the Takings.

211    Nonetheless, I consider that it is a relevant consideration as to whether an immediate grant of leave to discontinue ought be granted, that, at least from 1996 and for most of the period since, there was never any suggestion of any division amongst the members of the GJJ claim group.

212    This division, which has become protracted and at times acrimonious, appears to have first raised its head, as I mentioned earlier, about the time that James Price Point, located within the claim area, was identified by the State as the preferred site for an LNG Precinct to process gas resources from the Browse Basin.

213    I and other judges of this Court have observed that it is not uncommon for internal intra-indigenous divisions to arise within a native title claim group: Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [21]; Bodney v Bropho (2004) 140 FCR 77 at [47]; Combined Dulabed & Malanbarra-Yidinji Peoples v State of Queensland [2004] FCA 1097 at [44]; Roe v Western Australia (No 2) at [134] .

214    However, as the State submits, correctly in my view, in such cases it will often be tempting for members of the group to seek separate and conflicting determinations. However, the existence of a native title claim group does not depend upon the contemporary degree of cordiality, or lack thereof, demonstrated by members of a claim group. Rather, a native title claim group is defined by the traditional laws and customs which confer rights and interests in a group. Any definition of a native title claim group should properly be based on an analysis of those traditional laws and customs and not on the contemporary state of relations between members of the group.

215    A claim group is not an entity which is created by a determination application: Turrbal People v State of Queensland [2008] FCA 316 at [15]; Akiba (on behalf of the Torres Strait Islanders of the Regional Seas Claim Group) v Queensland (No 2) (2010) 270 ALR 564 at [913]. By s 61 of the NTA, the native title claim group is the group of “persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed”. The native title claim group has an existence independent of any determination application, which existence depends upon the traditional laws and customs which give the claim group common or group rights and interests. Subject to s 84D of the NTA, a determination application can only be successful if the group identified in the application is in fact the group which holds native title: Hazelbane v Northern Territory of Australia [2008] FCA 291 at [36]; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 at [1206]-[1225]; Edward Landers v State of South Australia [2003] FCA 264.

216    Since 1996, the applicant has asserted the existence of the GJJ claim group against the respondents. This was, as I said, included in the warranties in the PPA.

217    Importantly, there is no assertion by any deponent of affidavits filed in support of the Amendment Application, the June 2012 Discontinuance Application, or the current Discontinuance Application, that the GJJ claim group is not in fact a native title claim group. The affidavits of all three named applicants in support of the Amendment Application describe a meeting of the GJJ claim group. They do not indicate that the GJJ claim group does not exist or does not hold native title.

218    The affidavits of the named persons who constitute the applicant sworn on 5 and 7 August 2010, depose to their membership of the GJJ claim group and refer to them having attended a meeting at which the GJJ claim group authorised the replacement of Joseph Roe and Cyril Shaw by 6 people, 3 of who were the current named applicants: see also, Roe v Western Australia (No 2) at [1], [143] & [156]. These named persons’ affidavits on the Amendment Application refer to them having attended a meeting of the GJJ claim group, which presupposes that such a group exists. Joseph Roe's affidavit of 20 April 2012 likewise deposes to him being a member of the GJJ claim group. Nowhere is it deposed that the GJJ claim group either does not in fact exist or does not hold any native title rights under traditional law or custom. As the Court stated in Roe v State of Western Australia (No 2) at [139]:

[139]    … Any determination of native title is complex and will involve questions of fact and degree at the substantive hearing and, in my opinion, should not be determined finally in the context of a s 66B application: Daniel at [56]. It would be premature to conclude that there is no commonality of interest as submitted by Mr Roe. The rights and interests of all of the Goolarabooloo and Jabirr Jabirr claimants will be dealt with by way of evidence in the substantive native title proceedings. Ultimately it is a legal question for determination by the Court whatever present partisan views may have been expressed by some of those who are Goolarabooloo people or Jabirr Jabrr people. This is particularly so in respect to the identification of the relevant society or societies. The authorisation meeting of 3 August was attended by members of both Goolarabooloo and Jabirr Jabirr people. … he [Mr Roe] remains a member of the GJJ Native Title Claim Group and as such has a voice in its affairs as do all Goolarabooloo members.

219    There is no evidence of any anthropological evidence having been presented to the GJJ claim group meeting on 22 February 2012, or the meeting of the JJ descendants on 29 May 2012, which indicates either that the GJJ claim group was not a group recognised under traditional law or custom or did not hold common or group rights or interests under that law or custom. There is no indication such evidence was presented at the meeting on 5 and 6 February 2013 either.

220    Further, it seems, although I make no determinative finding, that the claim of the Goolarabooloo to membership of any claim group depends upon the incorporation of that family into Jabirr Jabirr society. There is nothing to suggest that the Goolarabooloo can hold native title interests independently of the Jabirr Jabirr society.

221    Moreover, this Court has observed that it is premature to conclude that there is no commonality of interest between the various members of the GJJ claim group: Roe v Western Australia (No 2); Roe on behalf of the Goolarabooloo and Jabirr Jabirr Peoples v State of Western Australia.

222    Accordingly, the evidence, at this stage, overwhelmingly suggests that the division is one which, as I have explained, is based principally in relation to the manner in which procedural rights relating to the proposed LNG Precinct should be exercised. One means to accommodate this division is the bringing of the present interlocutory application.

223    The evidence does not disclose that the Current Discontinuance Application is brought as a result of a proper assessment as to whether or not the GJJ claim group is in truth the properly defined claim group. Rather, the evidence discloses the existence of internal divisions within the GJJ claim group.

Conclusion

224    I do not consider, against this background, that the GJJ claim group ought be allowed to discontinue until sometime after 18 April 2013. Discontinuance before then would visit very significant prejudice upon the State, Woodside and others including, ironically, as I have observed, the members of the GJJ claim group itself as well as the Kimberley Indigenous Peoples. I am almost certain that the likely prejudice I have identified has not been explained to the GJJ claim group at any meeting or at least not explained in meaningful detail. It would undermine the very significant public interest in upholding commercial contracts and, in this case, the associated significant benefits to the Kimberley Indigenous Peoples and the economic wellbeing of the State as a whole. It is less clear since Woodside’s announcement today that it will not proceed with its involvement in the LNG Precinct at least in its present form as to the exact extent of that prejudice. Nonetheless, I am satisfied that there is present and immediate prejudice which emerges from the uncertainties and unresolved issues concerning the Browse Agreements to which I have referred. It is still contemplated by Woodside that it will consider developing a smaller onshore option at the proposed LNG Precinct.

225    The applicant is arguably in breach of the PPA at least in respect to cl 5.2(c) and possibly other warranties and covenants. It should not be permitted to ignore its contractual obligations. It obtained contractual Benefits for the very reason that it gained procedural rights under the NTA stemming from the registration with the National Native Title Tribunal of the GJJ Determination Application. The submissions by the Goolarabooloo that the subject matter of the PPA is unrelated to the conduct of the proceedings is, viewed in this context, wrong. It would be unjust to permit it to walk away from its responsibilities and leaving behind serious contractual problems which are, in my opinion, capable of relatively simply resolution by action on its part and if necessary, by negotiation and agreement.

226    It is of considerable force, in the exercise of my discretion, that the GJJ, under the PPA, consented to the future act the subject of the Second Replacement Section 29 Notice. Moreover, the objects of the NTA include to facilitate the resolution of native title issues by agreement and to allow future acts to proceed: s 3(b) of the NTA; and, for example, Brownley v Western Australia (1999) 95 FCR 152 at [16]-[17]; Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [64].

227    The interests of the GJJ claim group even after 18 April will also be protected. Their internal divisions should not be permitted and, probably unknown to them, to derail the enormous amount of effort to which of course they contributed co-operatively during that long period, because they may have decided to part company and proceed with independent and competing claims. There is also to be considered the likely massive financial losses which will be suffered by the State and others both actual and prospective.

228    The potential benefits which may, or may not, enure for the benefit of some Goolarabooloo people who might not be part of the GJJ claim group represent particular private interests which are far less significant than the public interest to which I have referred.

229    The concern of the Court is to ensure that in circumstances where it is quite evident that the present application will not be prosecuted that leave to discontinue be granted but upon terms which minimise prejudice to the other parties. A grant of leave, to operate at some time after 18 April 2013, will achieve that end. Contrary to the submission of the Goolarabooloo, the maintenance of the present proceedings does not amount to an abuse of process. To the contrary, the continuation of these proceedings for a limited period is in the interests of commercial probity and justice. The effect of immediate discontinuance and registrations of new Determination Applications would, in effect, negate the consent given by the applicant as the NTP in the PPA cl 4.

230    I consider that the applicant, the State, Woodside, Waardi and Guumbarr should submit themselves to mediation by a suitable mediator with a view to resolving the issues which would otherwise emerge were I to grant leave to discontinue now. I note that the PPA cl 42.3 contemplates mediation of Disputes. The parties should engage in that process before I finally resolve this interlocutory application. I will direct the parties to confer as to the identity of a suitable mediator, who could, for example, be a Deputy Registrar of this Court, as well as to the terms of reference for that mediation. I will invite the parties to file a minute of orders governing the mediation process. In the event that agreement cannot be reached as to this then the parties will have liberty to apply on that issue.

231    The application will be otherwise adjourned to a date to be fixed after the completion of the mediation. Costs will be reserved.

Associate:

Dated:    12 April 2013