Federal Court of Australia

Tjiwarl Aboriginal Corporation RNTBC and State of Western Australia [2021] FCA 438

ORDERS

THE COURT ORDERS THAT:

1.    The following persons be joined as respondent parties to the proceeding pursuant to s 84(5) of the Native Title Act 1993 (Cth):

(a)    Alkane Resources Ltd;

(b)    Archer Metals Pty Ltd;

(c)    Coventry Enterprises Pty Ltd;

(d)    Dubois Group Pty Ltd;

(e)    Element 25 Limited;

(f)    Gateway Mining Limited;

(g)    Liontown Resources Ltd;

(h)    Lithium 1 Pty Ltd;

(i)    LRL (Aust) Pty Ltd;

(j)    M 36-580 Pty Ltd;

(k)    Mabrouk Minerals Pty Ltd;

(l)    TC (Tallwoods) Pty Ltd;

(m)    Ramelius Resources Ltd; and

(n)    Western Explorers Pty. Ltd.

2.    On or before 28 April 2021, each respondent joined pursuant to order 1 is to file:

(a)    a notice of address for service or notice of acting; and

(b)    a notice specifying:

(i)    whether they intend to file a Points of Response in accordance with order 7 made on 1 December 2020 as extended by the Court on 31 March 2021 to 6 May 2021; and

(ii)    if so, whether they seek a variation to the present programming orders in order to do so, together with a minute of the orders they are seeking.

3.    There be no order as to the costs of this application.

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

REASONS FOR RULING

MORTIMER J:

1    On 22 April 2021 the Court made orders pursuant to s 84(5) of the Native Title Act 1993 (Cth) joining a number of parties as respondents in this proceeding, on the application of the State of Western Australia. It made one consequential order concerning notification to be given by all newly joined parties about whether they propose to file and serve Points of Response to the Points of Claim filed by the applicant in the proceeding.

2    The Court informed the parties it would give short reasons for those orders. These are those reasons.

3    The orders were made as a consequence of two interlocutory applications filed by the State: a principal interlocutory application and a supplementary interlocutory application changing the identity of one of the parties it sought to be joined. The joinder was sought on the basis of the State’s position in the proceeding concerning the construction and operation of s 125A of the Mining Act 1978 (WA) on its liability to pay compensation for compensable acts identified by the applicant in its Points of Claim, in relation to the grant of mining tenements in the native title determination area.

4    Broadly, the State contends that in relation to some compensable acts alleged by the applicant arising from the grant of a mining tenement, then by operation of s 125A, the person liable to pay compensation is either the holder of the mining tenement at the time a determination of compensation is made, or the last holder of that tenement, if the tenement has been surrendered, forfeited or has expired: see Part E11.1 of its Points of Response.

5    The applicant contends the State is liable to pay compensation for all compensable acts. In the alternative, it makes a series of cascading contentions about the way third party tenement holders (at various points in time) might be liable, if the Court rejects its primary argument.

6    It seems possible there may need to be a separate question about the construction and operation of s 125A, but that is a matter to be further discussed at the next case management hearing on 11 May 2021. In light of how the State’s case is put, I was satisfied it was appropriate to join those parties likely to be affected by its argument, and to do so at an early stage, in what will be a complex proceeding.

7    The State read the following affidavits in support of its application:

(a)    Affidavit of Elise Alexandra O’Sullivan affirmed 26 February 2021;

(b)    Affidavit of Elise Alexandra O’Sullivan affirmed 22 March 2021;

(c)    Affidavit of Elise Alexandra O’Sullivan affirmed 14 April 2021; and

(d)    Affidavit of Elise Alexandra O’Sullivan affirmed 19 April 2021.

8    Much of that affidavit material concerned proof of service, and responses received from proposed respondents.

9    The position at the time of the hearing of the interlocutory application was:

(a)    Alkane Resources Ltd consented to being joined and appeared at the hearing;

(b)    Liontown Resources Ltd consented to being joined and appeared at the hearing;

(c)    LRL (Aust) Pty Ltd consented to being joined and appeared at the hearing;

(d)    Dubois Group Pty Ltd consented to being joined and was granted leave to be excused from appearing at the hearing;

(e)    Mabrouk Minerals Pty Ltd consented to being joined and was granted leave to be excused from appearing at the hearing;

(f)    Ramelius Resources Ltd consented to being joined and did not provide an appearance at the hearing;

(g)    Archer Metals Pty Ltd did not consent to being joined and did not appear at the hearing;

(h)    Coventry Enterprises Pty Ltd did not provide a position on the interlocutory application and did not provide an appearance at the hearing;

(i)    Element 25 Limited did not provide a position on the interlocutory application and did not provide an appearance at the hearing;

(j)    Gateway Mining Limited did not provide a position on the interlocutory application and did not provide an appearance at the hearing;

(k)    Lithium 1 Pty Ltd did not provide a position on the interlocutory application and did not provide an appearance at the hearing;

(l)    M 36-580 Pty Ltd did not provide a position on the interlocutory application and did not provide an appearance at the hearing;

(m)    Western Explorers Pty Ltd did not provide a position on the interlocutory application and did not provide an appearance at the hearing;

(n)    The first respondent no longer sought joinder of Paterson, Peter James at the time of the hearing; and

(o)    TC (Tallwoods) Pty Ltd did not provide a position on the interlocutory application and did not provide an appearance at the hearing.

10    The applicant did not oppose the orders sought, with some qualifications. The applicant submits that it is not necessary for the proposed respondents to be joined as parties at this stage of the proceeding, and expressed a concern about the logistical consequences of joining a large number of parties, with what the applicant described as only “limited interests” in the proceeding. The applicant submitted that parties would be “passive or non-responsive in respect of the proceedings”, and that a requirement to involve all respondent parties in procedural steps that do not affect those parties’ interests could have a “disproportionate impact on resourcing”.

11    Somewhat late in the piece, the applicant proposed two different, and alternative forms of joinder orders. It circulated its proposals to the existing parties in reasonable time, but only circulated its proposals to prospective respondents very shortly before the hearing of the interlocutory application.

12    In substance, the applicant’s first set of orders proposed some restrictions on the role of the prospective respondents in the proceeding. The applicant proposed a joinder order expressed to be “on the basis of order 2”, and then proposed:

2.    The persons named in order 1 are joined as respondent parties on the basis that their participation in the proceeding is limited to the issues of whether there is a compensation entitlement for which they are, or may be, liable, and the quantum of any such compensation entitlement, in respect of any mining tenement(s) granted pursuant to the Mining Act 1978 (WA):

  (a)    which they currently hold (whether solely or jointly); or

(b)    for which they were the holder immediately prior to the mining tenement(s) being surrendered, forfeited or expired (whether solely or jointly).

3.    On or before 28 April 2021, each respondent joined pursuant to order 1 is to file:

  (a)    a notice of address for service or notice of acting; and

  (b)    a notice specifying:

(i)    whether they intend to file a Points of Response in accordance with order 7 made on 1 December 2020 as extended by the Court on 31 March 2021; and

(ii)    if so, whether they seek a variation to the present programming orders in order to do so, together with a minute of the orders they are seeking.

4.    The Court will accept a Minute of Proposed Orders as being a Minute of Proposed Orders by Consent if it is signed by the Applicant, First Respondent and the Attorney-General of the Commonwealth of Australia (as intervener) in circumstances where the Minute of Proposed Orders does not directly affect the interests of any other respondent party.

13    The applicant’s second set of orders essentially proposed a timetable for the making of submissions by the prospective respondents about their roles, and a further hearing.

14    There was no real support for the applicant’s position among the existing respondents (some of whom are also affected by the State’s s 125A argument), or the three prospective respondents who were represented at the hearing. There were no written responses received from any of the other prospective respondents. The State did not support the applicant’s proposal, save as to order 3 of the first option reproduced at [12] above. After specific discussion about proposed order 3, senior counsel for the State indicated his client had no difficulty with such an order being made.

15    The position of the existing and prospective respondents was, with respect, well encapsulated by the submissions made on behalf of Giard Pty Ltd and Golden Spur Resources Pty Ltd by Mr Hunt:

We don’t oppose the joinder application itself, but we do oppose the order sought in part A, number 4. In other words, we oppose the suggestion that as respondents we should only be allowed to participate insofar as it directly affects our interests. …

We think we have a right to determine what is in our interests. Specifically, I imagine that the State, for example, with the applicant could determine: “Well, this doesn’t relate to a mining tenement, therefore it won’t affect your interests”. But we might well think that a determination or an order about pastoral interests, in fact, has an application to the mining tenement interests. In short, your Honour, with respect, we think it’s – we should be allowed to choose in what respects we participate in the proceeding and – subject to your consent – in what respects we will absent ourselves from the proceeding. And as your Honour knows way better than me, this is not uncommon. It happens all the time.

16    I accept those submissions. They were echoed by other legal representatives. This is something of a test case for the compensation provisions of the Native Title Act. It is particularly important for compensation cases in Western Australia. All respondents should be afforded the opportunity to conduct their defence to the claim in the way they see fit, always assuming the parties and their legal representatives act responsibly and abide by the requirements of the Federal Court of Australia Act 1976 (Cth), the Native Title Act and the Federal Court Rules 2011 (Cth), in particular ss 37M and 37N of the Federal Court Act. Especially at an early stage of a complex proceeding, with many novel issues, and without any express justification in the conduct of the proceeding to this point, it is not for the Court to seek to place any pre-emptive boundaries or restrictions around how any party conducts its case.

17    That is not to say, as the case progresses further, and parties’ positions become clearer, various proposals about the levels of participation by certain parties should not be raised and considered, especially to ensure the proceeding (and the other two related proceedings) are being conducted in the most cost-effective manner, given this is a presumptively “no cost” jurisdiction.

18    However, I did consider it appropriate to make order 3 as proposed by the applicant. This order will ensure that the positions of newly joined respondents on the applicant’s Points of Claim are formalised to the Court as closely in accordance with the current timetable set by the Court as possible.

Associate:

Dated:    29 April 2021

SCHEDULE OF PARTIES