Federal Court of Australia

Lockyer for and on behalf of the Robe River Kuruma People v Citic Pacific Mining Management Pty Ltd [2022] FCA 1381

ORDERS

THE COURT ORDERS THAT:

1.    The respondents' interlocutory application dated 15 July 2022 be dismissed.

2.    The respondents do pay the applicants' costs of and incidental to the interlocutory application in any event.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In the late 1990s, the Kuruma Marthudunera People (KM People) applied for a determination of native title over land near Robe River to the south east of Dampier in Western Australia. The claim was registered in accordance with the then terms of the Native Title Act 1993 (Cth).

2    The area the subject of the claim formed part of the land on which the participants in a mining project proposed to construct, operate and maintain an iron ore mine. There were two other native title claims over land where it was proposed to establish and carry out the mining operations.

3    The participants in the project entered into three compensation deeds, one with each claim group. The deeds provided for the terms upon which those bringing each of the three claims consented to the project being undertaken over land the subject of the native title claims. Amongst other things, the deeds provided for the payment of annual compensation if and when the project was producing iron ore. Relevantly for present purposes, the deed made between the participants and 'the KM Parties' (as defined in the deed) (KM Deed) provided for an annual payment of $1.4 million plus CPI from the sixth year after the participants were required to provide royalty returns to the State of Western Australia. The KM Deed referred to the existence of the other two compensation deeds and dealt with the circumstances in which a party may receive a benefit under more than one deed (cl 2.4).

The KM Deed

4    The KM Deed recorded that the native title claimants to the registered claim by the KM People had given their consent to the conduct of the mining project by the participants and that the consideration for the consent was the benefits set out in the KM Deed (cl 4). It then set out the financial compensation to be paid to the KM People (cl 5).

5    In addition to recording the consent to the participants undertaking the project on the land the subject of the KM Deed, the Deed had detailed provisions which prevented claims being made by the KM People. In particular, the KM Deed provided (cl 11) as follows:

(a)    The KM Parties and the KM People acknowledge and agree that the Benefits are in full and final satisfaction of any obligation by the Project Participants, the holder of any Project Title, or the State to pay Compensation to the KM Parties or the KM People under the NTA, the Principal Acts, at Law, or otherwise arising out of or in connection with the grant, Renewal or operation of the Project Interests and the conduct of Activities in the Agreement Area and the effect of any of those matters on TO Rights; and

(b)    the KM Parties and the KM People hereby release absolutely and forever discharge the Project Participants, the holder of any Project Title, the State, and their respective officers, employees, and agents, and each of them, from all Claims whatsoever whether present or future, actual or contingent, known or unknown, in relation to the grant Renewal or operation of the Project Interests, and the conduct of the Activities in the Agreement Area and the effect of any of those matters of TO Rights other than to enforce the KM Parties' rights under this Deed, and the Consent Agreements.

6    Further, in cl 12, the KM Deed stated:

(a)    The KM Parties and the KM People acknowledge that the negotiation and execution of this Deed, ILUA 1 and ILUA 2 is in full and final satisfaction of any procedural rights held by the KM Parties or the KM People in relation to the grant of the Project Titles, including any right of consultation, negotiation or objection under the NTA, the Principal Acts or otherwise at Law arising out of or in connection with the grant or Renewal of the Project Titles; and

(b)    the KM Parties and the KM People hereby release absolutely and forever discharge the Project Participants, the holder of any Project Title, the State, and their respective officers, employees and agents, and each of them, from all Claims whatsoever whether present or future, actual or contingent, known or unknown, in relation to the said procedural rights held by the KM Parties or the KM People other than to enforce the KM Parties' rights under this Deed, and the Consent Agreements.

7    For present purposes it is not necessary to refer to the many defined terms deployed by cl 11 and cl 12. It is tolerably clear that the two provisions provide a form of broad and general release in terms that include but are not confined to the procedural rights conferred upon the KM Parties by the NTA and the Principal Acts. The reference in the provisions to the 'NTA' is to the Native Title Act 1993 (Cth). The reference to the 'Principal Acts' is to a number of pieces of legislation including the Racial Discrimination Act 1975 (Cth).

8    The KM Deed also included a covenant not to sue, a plea in bar and an indemnity (cl 13). Clause 13 also referred to the other instruments described in cl 12 as 'ILUA1 and ILUA2'.

9    The term, 'KM Parties' was defined in the KM Deed by using other defined terms in the following way:

KM Parties    Means each of the Native Title Party and the KM Community Organisation.

Any reference to the KM Parties means:

(a)    any and all of them as the context requires; and

(b)    if at any point in time the KM Community Organisation is not a party to this Deed, then any reference to the KM Parties must be read as a reference to the Native Title Party.

10    The term 'Native Title Party' was defined to mean the representative claimants for the registered claim to native title that had been brought by the KM People. The term 'KM People' (as used in the KM Deed) was defined very broadly to encompass all those on whose behalf the registered native title claim was made and any person who came to be determined under an approved determination of native title to be a native title owner over the land the subject of the registered claim. It included the KM Community Organisation being a party who could become a party by way of accession as provided for in the KM Deed.

11    The compensation payments provided for by the KM Deed were payable to the KM People (as defined in the KM Deed).

Events after the entry into the KM Deed

12    It appears that the consent given by the KM People was relied upon by the participants to commence the project.

13    In 2016 and 2018 determinations of native title were made as to the land the subject of the three native title claims. Those determinations referred to the KM People as the Robe River Kuruma People (RRK People). The determination of native title in favour of the RRK People was in respect of only a very small part of the land that was the subject of the consent given under the KM Deed. However, certain 'secondary rights' over a larger part of the area were recorded in an indigenous land use agreement to which the RRK People were a party.

The alleged effect of the determination of native title of the RRK people

14    The participants claim that the determination of native title in favour of the RRK people does not relate to any of the land required for the project. However, it appears to be common ground that the determination does relate to a small part of the land in respect of which the consent was given under the KM Deed.

15    The participants also say that in 2013 the KM People voluntarily withdrew their native title claim to much of the area the subject of the KM Deed. The participants maintain that the KM Deed has been frustrated by these events or alternatively that the KM Deed is not capable of performance. On that basis they say that they are not obliged to pay the annual payment for the sixth year or any further annual payments of compensation.

16    The KM Deed includes the following term (cl 16.3):

For the avoidance of doubt, this Deed survives any determination that the KM People do not hold native title in the Agreement Area.

17    The reference to the Agreement Area is to a defined term that identifies the area the subject of the KM Deed and the consent given by the KM People. The participants say that cl 16.3 is of no assistance to the KM People because the voluntary withdrawal of the boundaries meant that the determinations of native title were each not a determination that the KM People do not hold native title.

Claim for payment of compensation under the KM Deed

18    Ms Gloria Lockyer (for and on behalf of the RRK People) and the entity that is the trustee of the determined native title interest of the RRK People, namely Robe River Karuma Aboriginal Corporation RNTB (RRKAC), have together commenced proceedings in this Court. They seek declaratory relief as to the proper construction of the KM Deed and payment of the amount of compensation specified as payable in years six, seven and eight as described in the KM Deed, alternatively damages. The proceedings have been commenced against the participants in the project, namely CITIC Pacific Mining Management Pty Ltd, Sino Iron Pty Ltd and Pastoral Management Pty Ltd.

19    It appears that the claim by Ms Lockyer is brought for those persons on behalf of whom the original application for native title was made. The claim by RRKAC is brought as trustee of the native title interests held by those persons who have been determined to be native title holders (albeit as to only a small part of the area the subject of the KM Deed).

20    Ms Lockyer and RRKAC say that the definitional provisions of the KM Deed confer a right to payment of compensation upon (a) those on whose behalf the original registered native title claim had been made; and (b) any person who has been determined by a court of competent jurisdiction to be a native title holder over the agreement area in accordance with that claim. They seek to call in aid a provision of the KM Deed that says that a reference to a thing (including but not limited to a right) includes a part of that thing. Therefore, so they say, a native title determination over part of the area the subject of the KM Deed is sufficient for the native title holders to come within those who are entitled to the payment of the compensation provided for in the KM Deed.

Alleged lack of jurisdiction

21    The participants claim that this Court lacks jurisdiction in respect of the proceedings. They seek an order setting aside the application. Alternatively, they say that the proceedings should be transferred to the Supreme Court of Western Australia.

22    The applicants claim that this Court has jurisdiction for two reasons. First, they say that the claim under the KM Deed is a federal matter that is within jurisdiction because the right to payment under the KM Deed owes its existence to the claim made under the Native Title Act. Second, it says that RRKAC is a corporation registered under Commonwealth legislation, namely the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) that owes its capacity to sue to that Act and the Native Title Act. They also say that there is no reason in the interests of justice to transfer the proceedings to the Supreme Court.

Relevant principles as to jurisdiction

23    A significant aspect of this Court's jurisdiction is its original jurisdiction in any matter arising under any laws made by the Parliament: as to which, see s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 76(ii) of the Constitution. In considering what is meant by a matter of that kind, it is important to distinguish between the proceedings that have been brought in this Court and the underlying controversy between the parties. The limits of the former is demarcated by the pleadings or other documents that identify the issues for determination and the nature and extent of the relief claimed. The limits of the latter extend further to embrace the extent of the underlying dispute between the parties (and perhaps other parties). The extent of the controversy is not confined by the fact that proceedings have been commenced or the nature and extent of the claims made in those proceedings.

24    The term 'matter' as used in s 39B(1A)(c) derives from its constitutional use. In that context, its relevant use is 'as the widest term that might be used to denote controversies that may come before a Court': South Australia v Victoria (State Boundaries case) (1911) 12 CLR 667 at 675 (Griffiths CJ).

25    As explained by Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 (a case concerned with the extent to which a non-federal claim may be included as part of proceedings in which a federal claim was made) at 608:

The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion. In identifying a s. 76(ii) matter, it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy. What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships.

26    The constitutional sense in which 'matter' is used was explained by Kiefel, Keane, Nettle and Gordon JJ in Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478 at [26] as follows:

A 'matter', as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding - 'controversies which might come before a Court of Justice' (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. What comprises a 'single justiciable controversy' must be capable of identification, but it is not capable of exhaustive definition. 'What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'.

(footnotes omitted)

27    Therefore, in considering whether a matter arises under a law made by the Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act, it is necessary to look to the controversy between or among the parties as identified independently of the proceedings which are or might be brought for determination: National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543 at [78]-[84] (Allsop CJ).

28    A matter will arise under a federal law 'where the subject matter of the controversy owes its existence to Commonwealth legislation - that is where the claim is in respect of or over a right which owes its existence to federal law': Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [18] (Allsop, Besanko and White JJ) adopting the language of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154.

29    As was said in LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ):

When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law.

See also CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339 at [29]-[30]; and Edwards v Santos Limited [2011] HCA 8; (2011) 242 CLR 421 at [45].

30    In order for the Court to have jurisdiction, there is a separate and distinct requirement for there to be a 'justiciable controversy' or an invitation to exercise an established category of judicial power before a federal controversy comes within the concept of 'matter': CGU Insurance Limited v Blakeley at [29]-[30]. As was explained by Derrington J in DJ Builders & Son Pty Ltd (in liq), in the matter of DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission (No 3) [2021] FCA 1041 at [11]-[12]:

The expression, 'matter', in s 39B(1A) is used in its Constitutional sense and has two elements. First, the 'justiciability' requirement, meaning that there must be a justiciable controversy which is identifiable independently of the proceedings brought for its determination … Second, the 'subject matter' requirement, being that the subject matter, which encompasses all claims made within the scope of the controversy, must be within one of the sub-paragraphs of s 39B(1A) of the Judiciary Act …

The justiciability requirement is to be distinguished from the legal proceeding brought to quell the dispute or to enforce the right, or the particular manner in which the cause or causes of action in the legal proceedings are framed … It is the controversy in which there exists some immediate right, duty or liability to be established by determination of the Court, and no such controversy exists where the parties are merely seeking an advisory opinion … This requirement is not in issue in this case.

31    Plainly there is a justiciable controversy in the present case.

Is there jurisdiction on the basis of the Native Title Act?

32    The KM Deed recorded the terms upon which consent had been given to the participants to undertake particular activities anywhere on the land the subject of the KM Deed. It included a release in favour of the participants in respect of any present and future claims and agreed that the KM Deed could be pleaded in bar to such claims. Its covenants were given in respect of present and prospective claims to native title rights under the Native Title Act and the rights and interests that may be enjoyed and asserted by those who may be determined to hold such native title rights and interests (though its covenants appeared to extend beyond such claims).

33    The consideration for the covenants given under the KM Deed for the benefit of the participants was the payment of compensation in the manner and circumstances recorded in the Deed. Therefore, the claim to the payment of compensation under the provisions of the Deed is a claim in respect of present and prospective claims to native title rights under the Native Title Act. Put shortly, those claims (and possibly other claims) were the foundation for the covenants by the participants to pay compensation. Without them, a considerable part (possibly all) of the subject matter of the KM Deed would not exist. Consequently, the present controversy between the parties does not simply concern whether compensation is due and payable under the terms of a deed. Rather, it concerns whether compensation is payable in circumstances where all (or a significant part) of the subject matter in respect of which the compensation was agreed to be payable concerns present and prospective claims under the Native Title Act. This is especially so given that the defence raised by the participants is to the effect that the KM Deed should not be enforced because of what has occurred in relation to the determination of a native title claim thereby requiring consideration of the nature of the underlying subject matter of the KM Deed.

34    Therefore, as the controversy between the parties concerns whether there is an entitlement to the payment of compensation under the KM Deed which was made in respect of present and prospective claims to native title rights under the Native Title Act, this Court has jurisdiction.

35    For the participants, it was submitted that the KM Deed arises 'in the context of' the Native Title Act rather than 'out of' the Native Title Act. If the different terminology was intended to suggest that the subject matter of the KM Deed did not include rights under the Native Title Act then for reasons already given I do not accept that to be the case. It is true that the applicants in the proceedings commenced against the participants do not seek to directly enforce any right or interest conferred by or determined under the Native Title Act. However, any entitlement that they have to compensation exists (at least to a substantial extent) upon claims under that Act.

36    It was sought to characterise the present proceedings as an instance where the federal law (in this case the Native Title Act) needs to be considered and understood as part of the context or background. It may be accepted that the need to advert to a federal law is not enough. However, for reasons that have been given the federal law is the source of a substantial aspect of the subject matter that is addressed by the KM Deed. The subject matter of the controversy, at least in significant respects, is the rights that are determined and given effect under the Native Title Act.

Is there jurisdiction by reason of the incorporation and registration of RRKAC?

37    Having regard to the conclusion that I have reached concerning the existence of a controversy arising under the Native Title Act it is not necessary for me to reach a view on the alternative claim made concerning the basis for the Court's jurisdiction. The possibility has been suggested: Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [16] (Lee J); Hafertepen v Network Ten Pty Limited [2020] FCA 1456 at [44] (Katzmann J); Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360 at [26]-[58] (Lee J); DJ Builders at [15]-[19]; Malecki v Macko [2022] FCA 766 at [29]-[35] (Besanko J); and Raghubir v Nicolopoulos [2022] FCAFC 97 at [21]. The question is a significant one. In my view, its consideration is best left for a case that turns upon the point.

Should the matter be transferred to the Supreme Court?

38    As presented orally, the first contention as to why these proceedings should be transferred to the Supreme Court relied upon provisions in the KM Deed to the effect that it was 'governed by the laws of Western Australia' and that the parties 'irrevocably submit to the exclusive jurisdiction of the courts of Western Australia'.

39    It was submitted that in such a case the reasoning of Tamberlin J in National Dairies WA Limited v Wesfarmers Limited (Unreported, FCA, 22 July 1996) supported the transfer. In that case, his Honour approached the matter in the following way:

In deciding which Court is the appropriate forum the agreement of the parties as to the governing law is very significant. While the provision as to the governing law does not refer to the Federal Court, on a broad construction, this Court could possibly come within the description of 'Courts of Western Australia'. However, the clause conveys to me a preference for determination of the contractual issues exclusively by the Courts of the State of Western Australia. This is understandable given the extensive references in the agreement to Western Australian regulatory laws.

There is in the present case no suggestion that there will be any undue or unreasonable delay in hearing the matter if it is vested in the Western Australian Court.

In all the circumstances, it is my conclusion that the 'interests of justice' clearly require that the proceeding should be cross-vested in the Western Australian Supreme Court.

40    Adopting that approach, it was submitted that the KM Deed also contained extensive references to regulations and laws of Western Australia. I am unable to accept that submission. There are references to such laws in the KM Deed. However, the legislation which has prominent significance is the Native Title Act. There is also reference to the Racial Discrimination Act. There is no analogy between the present case and the circumstances in National Dairies.

41    Further, there is much to be said for the view that this Court, sitting as it does in all States of Australia including Western Australia with resident judges in the State, is one of the Courts of Western Australia, particularly having regard to the subject matter of the KM Deed.

42    The principles to be applied in a case like the present where reliance is placed upon an exclusive jurisdiction clause was considered by Gleeson J in Neville's Bus Service Pty Ltd v Pitcher Partners Consulting Pty Ltd [2016] FCA 859 at [6] where her Honour supported the view of Philippides J in World Firefighters Games Brisbane, 2002 v World Firefighters Games Western Australia Inc [2001] QSC 164 to the effect that the weight to be given to such clauses in considering a cross-vesting application 'will vary depending on the other surrounding and countervailing circumstances'.

43    It was also submitted for the participants that the fact that the parties and the subject matter of the dispute are located in Western Australia that is a reason for transfer. This submission has no merit when account is taken of the fact that the case has been docketed to a judge of this Court resident in Western Australia and it is a short and usually pleasant stroll between the locations of the two court buildings in Perth.

44    Next it was submitted that there was no strategic difference or advantage for the parties to have the matter heard by this Court. The absence of any difference is hardly a reason for transfer. No forensic or practical reason for the transfer was identified.

45    Finally, it was submitted that: 'The appropriateness of the matter being resolved by [the Supreme Court] seems discernible as there is an extant decision of that Court' being the decision in Thaluntha Pty Ltd v CITIC Pacific Mining Management Pty Ltd [2019] WASC 196. This rather obscure submission was not elaborated upon orally. In Thaluntha, a claim was made that an instrument for the payment of compensation that appears to be one of the two other compensation deeds (and an instrument with some similarities to the KM Deed) was frustrated by the dismissal of the relevant native title application. The claim was upheld. The conclusion to that effect was expressed by Smith J as follows at [182]-[186]:

Whilst the WGTO Compensation Deed provides for the parties' obligations upon the Native Title Application being determined, the agreement does not provide for what is to occur if the Native Title Application is dismissed.

The existence of the Native Title Party is critical to the performance of the WGTO Compensation Deed.

As there has not been, since 23 October 2009, a Native Title Application, the supervening events (of the dismissal and consequent deregistration of the Native Title Application) have resulted in a fundamentally different situation to the situation contemplated in the WGTO Compensation Deed.

Unlike the circumstances in Codelfa, cl 16.3 of the WGTO Compensation Deed does not deal with the outcome of the frustrating event (that is, the dismissal of the Native Title Application). The answer to the question, of whether the situation arose by the dismissal and subsequent deregistration of the WGTO Native Title Party as a registered claimant group is fundamentally different from the situation contemplated by the WGTO Compensation Deed, is yes.

For these reasons, the WGTO Compensation Deed has been discharged by these supervening events.

46    In the present case, the native title application has not been dismissed and there exists a registered native title body corporate in respect of native title as determined. For those reasons at least the decision appears to be distinguishable. Further, it was not explained why there was some need to transfer the proceedings in order for proper consideration to be given to the reasoning in Thaluntha to the extent that it may be of assistance.

47    The submission was put on the basis that Thaluntha will be binding on the parties if the proceedings were to be transferred to the Supreme Court and that it 'will likely be binding in this Court, as a matter of comity but that is not certain'. The basis for that submission was not elucidated. Implicit within it is the view that the ratio of the decision in Thaluntha would determine the outcome in the present case and that despite that being so, a judge of this Court may not follow that decision but a judge of the Supreme Court would and that is a reason why these proceedings should be transferred. As I have indicated, its premise has not been demonstrated and therefore it is not a reason for transfer.

48    However, I should not be taken to accept that even if the premise had been demonstrated that it would follow that it would be accepted as a reason for transfer. Complexities arise where a respondent to proceedings seeks to transfer proceedings on the basis that it will obtain a procedural or forensic advantage (or be subjected to a disadvantage if there is no transfer). It would also be necessary to consider the significance of the operation of a single common law in Australia.

49    In all the circumstances, I am not persuaded that any reason for transfer has been demonstrated.

An important note

50    For the purposes of considering the claim by the participants that this Court lacks jurisdiction it has been necessary in these reasons to form some provisional views about the KM Deed and its provisions. Those views should not be regarded as final. They are made solely for the purpose of the present interlocutory application which requires this Court to understand the nature of the underlying controversy. Obviously, it will be a matter for adjudication after final hearing as to what the KM Deed provides, including the proper construction of its terms.

Orders and costs

51    For those reasons, the interlocutory application should be dismissed. The application raised discrete questions. The applicants having been successful it is appropriate for costs to be ordered in their favour.

Associate:

Dated:    22 November 2022