Federal Court of Australia

Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia [2023] FCA 303

ORDERS

THE COURT ORDERS THAT:

1.    The applicants have leave to file an amended compensation application in the form of Annexure MG-2 to the affidavit of Martyn Gray filed 22 November 2021, save that leave is refused to make the amendments proposed to paragraphs 6, 7, 17 and 18 of the original compensation application.

2.    The interlocutory application filed 22 November 2021 is otherwise dismissed.

3.    Costs of the application are reserved pending submissions.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    In 2015 the Court declared by consent under s 87 of the Native Title Act 1993 (Cth) (NTA) that native title exists with respect to certain land and waters, being some 7228 square kilometres the subject of the McArthur River Pastoral Lease No 1051, and is held respectively by eleven estate groups: Ngajapa v Northern Territory of Australia [2015] FCA 1249 (Mansfield J) (Determination).

2    On 14 December 2020 the applicants filed an application for determination of compensation under s 61(1) of the NTA in Form 4, being the form prescribed under reg 5(1)(d) of the Native Title (Federal Court) Regulations 1998 (Cth) (NTFC Regulations). The compensation application concerns the effect of certain acts done in connection with the McArthur River Project on native title rights held by the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples.

3    The Project, as described by the applicants, is a project being developed by Mt Isa Mines Limited (MIM) concerning the mining of the 'Here's Your Chance' deposit and the treatment, storage and transport of ore within and between mineral leases within the boundaries of a reserved area (ML 1121 to 1125) and a mineral lease on (former) Bing Bong Pastoral Lease and adjacent Territory waters (ML 1126). The Project is also the subject of the McArthur River Project Agreement Ratification Act 1992 (NT).

4    The first applicant is the group of persons authorised by all persons who claim to be entitled to compensation. The members of the applicant are included in the compensation application group. The second applicant is a registered native title body corporate (RNTBC). It is not in issue that the applicants have standing under s 61(1) of the NTA to bring the compensation application.

5    By application made 22 November 2021 the applicants sought leave to amend the compensation application. In December 2022, and having been allocated the conduct of the trial, I was asked to determine the amendment application. It had previously been agreed that the application would be determined on the papers. Written submissions were filed by the parties. I also had the opportunity to clarify certain matters with the parties at a case management hearing on 24 March 2023.

6    The respondent and the Intervener (the Northern Territory and the Attorney General of the Commonwealth of Australia respectively) consent to some of the proposed amendments, but oppose others. In short, where amendments are opposed (amendments to paras 6-7 and 17-18 of the application) it is on the basis that those amendments are said to alter the description of the land and waters covered by the compensation application, resulting in the inclusion of areas of land and water that are not otherwise covered, contrary to s 64(1) of the NTA.

7    Pursuant to s 64(1A), an application may at any time be amended to reduce the area of land or waters covered by the application. However, by s 64(1) an amendment to an application 'must not result in the inclusion of any area of land or waters that was not covered by the original application'.

8    The applicants do not concede that the areas encompassed by the proposed amendments, insofar as they relate to paras 6-7 and 17-18, fall outside the area of the compensation application and say that on a fair reading, those areas are already included.

9    For the reasons that follow, I have decided that the contested proposed amendments are prohibited under s 64(1) of the NTA as they purport to include geographic areas that are not the subject of the original compensation application.

The statutory framework

Entitlement to compensation

10    The NTA provides for compensation to be granted where native title rights and interests are affected by an act, as explained in Northern Territory v Griffiths (deceased) on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7; (2019) 269 CLR 1.

11    Relevantly, Divisions 2, 2A, 2B, 3 or 4 of Part 2 of the NTA define relevant acts (such as past, intermediate and future acts), and provide for when compensation for those acts is payable. Section 51(1) of the NTA provides that:

… the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

12    Section 226(2) of the NTA relevantly provides:

An act includes any of the following acts:

(a)    the making, amendment or repeal of any legislation;

(b)    the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;

(c)    the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;

13    Section 227 of the NTA provides:

An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

Bringing an application for compensation

14    Section 61(5) of the NTA provides that:

An application must:

(a)    be in the prescribed form; and

(b)    be filed in the Federal Court; and

(c)    contain such information in relation to the matters sought to be determined as is prescribed; and

(d)    be accompanied by any prescribed documents and any prescribed fee.

15    Sections 62(3)(b) and (5)(b) of the NTA provide that a compensation application must contain the details that would be required to be specified in s 62(1)(b) if the application were instead a native title determination application in respect of the native title involved in the compensation application. Section 62(1)(b) states that those details are specified in s 62(2), which relevantly provides:

For the purposes of paragraph (1)(b), the details required are as follows:

(a)    information, whether by physical description or otherwise, that enables the boundaries of:

(i)    the area covered by the application; and

(ii)    any areas within those boundaries that are not covered by the application;

to be identified;

(b)    a map showing the boundaries of the area mentioned in subparagraph (a)(i);

(c)    details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;

(d)    a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

(e)    a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i)    the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii)    there exist traditional laws and customs that give rise to the claimed native title; and

(iii)    the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f)    if the native title claim group currently carry on any activities in relation to the land or waters - details of those activities;

(g)    details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

(ga)    details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

(h)    details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

(i)    if there are any conditions under section 251BA on the authority of the applicant to make the application and to deal with matters arising in relation to it - details of the conditions.

(note deleted, emphasis added)

16    In the present case it is the requirements of s 62(2)(a) and (b) that are particularly relevant, and their reference to 'the boundaries of the area covered by the application'. However, the fact that phrases such as 'the land or waters in the area covered by the application' or 'the whole or part of the area' are included in many of the subparagraphs, as emphasised, indicates the importance and reach of identifying the compensation application area.

17    The NTFC Regulations are also relevant. They provide that a compensation application must be in Form 4, whether brought by authorised persons or a RNTBC, and must contain the information mentioned in the Form.

18    Importantly, the Schedules within Form 4 require inclusion of each item of information listed in s 62(2)(a)-(h). Schedule B requires the inclusion of information identifying the boundaries of 'the area covered by the application', as well as 'any areas within those boundaries that are not covered by the application'. Schedule I requires the inclusion of 'details of the act which it is claimed extinguished or affected native title rights and interests for which compensation is claimed'. Schedule I expressly requires identification of a compensable act.

19    The requirements of Form 4 in the context of this application are discussed further below.

The importance of identifying the claim area - Saunders

20    In Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190, Rangiah J considered the nature and purpose of the information that must be provided by way of the Form 4 in order for an application under s 61(1) to be valid. I extract below a number of paragraphs from Saunders, but I have done so because they provide important context to this application.

21    The native title compensation application in Saunders was expressed to cover the entirety of the areas determined to be subject to non-exclusive native title recognised in two determinations made by the Court.

22    In Tucker v State of Western Australia [2022] FCA 1379, Mortimer J succinctly summarised the nature of the issues in Saunders and I respectfully adopt her Honour's summary:

[20]    … The compensation application did not identify which acts were claimed to have extinguished or impaired the Bigambul People's native title. Instead, the applicant stated that it was intended to identify the compensable acts after expert and lay evidence had been provided. The State of Queensland made an interlocutory application to strike out or summarily dismiss the compensation application, on the basis that it did not contain the information prescribed by the NTA, including the identity of the area covered by the compensation application and the identity of acts giving rise to a right to compensation under the Act.

[21]    Before Rangiah J, the compensation applicant sought leave to amend the compensation application to identify particular compensable acts. Rangiah J refused this application, on the basis that the area covered by an application for compensation for the extinguishment of native title is the area or areas in which the application alleges that native title rights and interests are or have been affected by a compensable act. It followed, Rangiah J reasoned, that because the compensation application did not identify any compensable acts, it did not cover any area of land or water. Accordingly, to allow the compensation applicant to amend the original application to include compensable acts alleged to affect native title rights and interests in particular areas would necessarily expand the area covered by the application. Because s 64(1) of the NTA prohibits an amendment to an application that would result in the inclusion of any area not covered by the original application, the Court could not grant the compensation applicant's request for leave to amend. For similar reasons, Rangiah J reached a similar conclusion on the application for leave to amend in Kooma.

23    For completeness, I note that appeals from the orders in both Saunders and Wharton on behalf of the Kooma People v State of Queensland (No 2) [2021] FCA 191 were filed but were discontinued or dismissed without determination.

24    In Saunders, as is apparent from the above summary, Rangiah J considered in some detail the need to address in the Form 4 both the compensable acts relied upon and the compensation area. There are five matters to note arising from those reasons.

25    First, it is not to be assumed that the area of a compensation application will accord with the precise area on which a compensable act is said to occur. So much is apparent from Griffiths, as explained by Rangiah J:

[61]    It may be seen from Griffiths that determination of the economic value of the native title rights and interests extinguished or otherwise affected by an act is conducted by reference to the value of a freehold interest in the area of land in relation to which the affected rights and interests exist or existed. An assessment of the value of economic loss therefore requires identification of the relevant area.

[62]    It may also be seen from Griffiths that compensation for non-economic loss is assessed by reference to the direct effects of an act upon the enjoyment of native title rights and interests in the area where the act is done and, in addition, collateral detrimental effects upon enjoyment of rights and interests in broader areas of country. Such collateral detrimental effects may be, for example, a sense of loss of connection to broader areas. However, the High Court did not suggest that compensation is payable in relation to an area where an act has no effect upon native title rights and interests. As is the case in respect of determination of the economic value of the affected rights and interests, determination of non-economic value requires identification of the area in which native title rights and interests are affected, directly or collaterally.

26    Second, his Honour identified that a determination of compensation requires identification of an area, stating:

[77]    An act that affects native title rights and interests is necessarily done in relation to an area of land or waters. Section 223 defines 'native title' as communal, group or individual rights and interests, 'in relation to land or waters'. Section 225 provides that a determination of native title is a determination whether or not native title exists, 'in relation to a particular area…of land or waters'. Under s 13(2), the Federal Court cannot make a determination of compensation, without making, or having previously made, a determination of native title, 'in relation to the whole or part of the area concerned'. The definitions of 'past act' in s 228, 'intermediate period act' in s 232A and 'future act' in s 233 require an act, 'in relation to land or waters', or, 'in relation to particular land or waters'.

[78]    It may be seen that an act that affects native title rights and interests is one that is done in relation to an area of land or waters. As the High Court made clear in Griffiths, an assessment of the economic and non-economic value of the native title rights and interests affected by a compensable act is made by reference to the area or areas in which rights and interests are or have been affected: see, for example, [86]-[91], [217]-[219]. Just as a determination of compensation depends upon identification of an act that affects native title rights and interests, a determination of compensation depends upon identification of an area in relation to which rights and interests are or have been affected.

27    Third, and against that backdrop, his Honour addressed whether an application for compensation required identification of an act and an area, stating:

[79]    Since a determination of compensation requires identification of an act and an area, it can be expected that an application for a determination of compensation would require identification of the relevant act and area.

[80]    The necessity for an application for a determination of compensation to identify an area is expressly recognised by provisions of the NTA dealing with one of the two types of compensation application that may be made. Under s 61(1), a compensation application may be made by either a registered native title body corporate (RNTBC), or a person or persons authorised by all the persons who claim to be entitled to the compensation. Section 62(2)(a)(i) (via s 62(1)(b) and (3)(b)) requires an authorised compensation application (but not one made by an RNTBC) to contain information that enables, 'the boundaries of…the area covered by the application… to be identified'. Sub-paragraphs (c),(d),(e),(f),(g),(ga) and (h) of s 62(2) also require an authorised application to include information in relation to, 'the area covered by the application', or 'the area', or 'the land or waters'.

…

[83]    Schedule B of Form 4 requires the inclusion of information identifying, 'the boundaries of…the area covered by the application', as well as, 'any areas within those boundaries that are not covered by the application'. Identification of the boundaries of an area will necessarily identify the area. Therefore, Sch B requires identification of an area, namely 'the area covered by the application'.

[84]    Schedule I of Form 4 requires the inclusion of, 'Details of the act which it is claimed extinguished or affected native title rights and interests for which compensation is claimed…'. In this way, Schedule I expressly requires identification of a compensable act.

28    Fourth, his Honour referred to the role and purpose of the information that must be provided by the Form 4 in the context of the NTA, observing that: an important purpose of Form 4 is to enable the Native Title Registrar to identify, and then notify, the persons and entities who have relevant interests in 'the area covered by the application'; whether the State or Territory is to be a party will depend on whether 'any of the area covered by the application' is within its jurisdictional limits (s 66(2) and s 66(3)(c)); and the requirement that the Registrar give notice to the representative body 'for the area covered by the application' (s 66(2A)) and to other persons is in most cases identified by reference to 'the area covered by the application' (s 66(3)(a)). Therefore:

[90]    Apart from the Commonwealth Minister, the identities of the relevant persons or entities who are to be notified by the Registrar will vary from application to application. Their identities are ascertained by reference to their connection with 'the area covered by the application', or whether their interests may be affected by, 'a determination in relation to the application'. An application for compensation must, therefore, identify an 'area covered by the application' in order to allow the Registrar to carry out the notification obligations arising under s 66(2), (2A) and (3). The identification of a compensable act will also assist the Registrar to determine all the persons and entities whose interests may be affected by a determination, since under ss 24JAA(9), 24KA(6), 24MD(4) and 24NA(7), the Commonwealth, States and Territories may enact laws providing that another person pay the compensation determined.

29    As his Honour observed, the information provided by the Form 4 and the notice obligations under the NTA and NTFC Regulations recognise and observe the requirement of natural justice that a person whose interests might be affected might have a reasonable opportunity to be heard on a matter: at [93].

30    His Honour relevantly concluded that:

[95]    Accordingly, the requirements of Sch B of Form 4 for information identifying the boundaries of the area covered by the application, and of Sch I for identification of a compensable act, are consistent with the scheme of the compensation provisions. In any event, for a compensation application authorised by a compensation claim group (such as the Original Application), identification of the area covered by the application is expressly required under s 62(2) of the NTA.

31    Similarly, his Honour observed that the purpose of notice provisions such as those in s 66 of the NTA is to facilitate certainty among those who hold interests in an area: at [128].

32    Fifth, his Honour referred to the inclusion of phrases such as 'the area covered by the application' or 'the area of land and waters covered by the original application' throughout the NTA, observing that it is to be assumed that the phrase is intended to have a consistent meaning: at [113]. More specifically, the requirement of Schedule B of Form 4 for information that enables the boundaries of 'the area covered by the application' to be identified must take its meaning from the same requirement in s 62(2)(a)(i): at [111]-[112].

33    However, his Honour rejected a submission to the effect that the area 'covered by the application' is limited to the area directly affected by a compensable act, acknowledging what was said in Griffiths and that it is unlikely that the legislative intention is to limit the area covered by the application to the precise geographical area the subject of the compensable act: at [130]-[132].

34    His Honour also acknowledged that a compensation application might assert that the whole of a native title determination area is covered by the application. That description might be appropriate where interests in the whole of the claim area might be affected by a determination of a compensation application. However, it would not be an accurate description where the native title rights and interests are affected in only part of that area: at [126]-[127]. In other words, the area in which native title is alleged to be affected by a compensable act may in some cases, but will not necessarily, be the whole of the native title determination area: at [136].

35    His Honour concluded that:

[134]    In the case of an application for a determination of compensation, 'the area covered by the application', will be the area or areas in which the application alleges that native title rights and interests are or have been affected by a compensable act. It is in that area or those areas that the interests of other persons or entities may be affected.

36    For completeness, I also extract the following paragraphs upon which, as will be explained, the applicants place some weight:

[138]    Schedule B requires identification of the area in which the application alleges that native title rights and interests have been extinguished or otherwise affected by an act. Schedule I requires identification of an act which it is claimed extinguished or affected native title rights and interests. It is the identification of the alleged act and its effects that identifies the relevant area. Schedule B is concerned with the area in which an act identified in Sch I is claimed to have an effect upon native title rights and interests.

[139]    The 'area covered by the application' in Sch B is the area or areas in which the applicant claims that native title rights and interests are or have been affected by the act or acts identified in Sch I.

37    I turn to consider this application, taking into account the observations in Saunders. They expose the importance of precision and consistency in identifying the compensation application area.

The applicants' Form 4

38    Part A of Form 4 requires details of the claim. Schedule A requires the insertion of the names or a description of the compensation claim group. In this case, Schedule A describes the claim group on whose behalf the application is made. The description is said to correspond to the description of the group determined to hold native title in the Determination, save for a reference to a certain neighbouring estate group.

39    Schedule I of the Form 4 application identifies the acts for which compensation is claimed. They include, relevantly, the granting of ML 1126 pursuant to the McArthur River Project Agreement Ratification Act 1992 (NT) and the construction of the Road.

40    Schedule B requires information identifying the boundaries of the area covered by the application and any areas within those boundaries not covered by the application. Schedule B to the original application provides:

6.    The compensation application area is that part of NT Portion 4319 comprising areas on which the McArthur River Project, as defined in the Agreement scheduled to the McArthur River Project Agreement Ratification Act 1992 (NT), is conducted, more particularly being:

(1)    the areas covered by Mineral Leases 582 and 1121 to 1126, and Exploration Licence 8078;

(2)    the areas the subject of Non-Pastoral Use Approvals for use as Dredge Spoil Ponds (and being within the area of proposed Mineral Lease 29881) in connection with the Bing Bong Port situated on Mineral Lease 1126 used in connection with the Project;

(3)    the area of the Road from the Mine situated on Mineral Leases 1121 to 1125 to the Port situated on Mineral Lease 1126 constructed and maintained in connection with the Project, including areas adjacent to the Road incidental to the construction, establishment or operation of the Road;

(4)    the area of the McArthur River Gas Pipeline that operates to generate electricity for use at the Mine, including areas adjacent to the Pipeline incidental to the construction, establishment or operation of the Pipeline.

7.    The compensation application area is within the outer boundaries of the area covered by the earlier native title determination in Ngajapa v Northern Territory [2015] FCA 1249.

(original emphasis)

41    Schedule C of Form 4 requires a map showing the boundaries of the area covered by the application attached. Schedule C of the compensation application states at para 8:

A map showing the boundaries of the application area and location of the areas referred to at [6] is Annexure A.

The reference to '[6]' is a reference to para 6 of Schedule B.

42    The description of the Schedule C map (included as Annexure 1 to these reasons) in the following two paragraphs is largely taken from the description in the submissions filed on behalf of the Commonwealth and the Intervener (noting that the Commonwealth has since been removed as a respondent). As I understand it, the description is not challenged by the other parties.

43    The Schedule C map contains a legend that indicates the 'Gas pipelines' as a yellow line, the 'Road between Port and Mine' as a light blue line, 'EL 8078' as royal blue hachuring, 'Mineral Lease' as shaded orange with a grey outline and 'Proposed Mineral Lease' as shaded purple. The legend is otherwise silent as to the pink shading and the bold navy line also found in the map.

44    The map includes within it bolded black labels with arrows indicating, from north to south, Bing Bong Port, Road between Port and Mine, McArthur River Mine and McArthur River Gas Pipeline. Each arrow points to locations within the pink shading. The map also contains small labels with the tenure descriptions of MLN 582, 1121-1126 and EL 8078 and lines to parcels shaded orange and in blue hachuring respectively. There is a further small label 'Proposed ML29881 (dredge spoil ponds)' proximate to the purple shaded parcel. Within the pink shaded area is also a blue-green label 'McArthur River Pastoral Lease' followed by a label in pink 'Native Title Determination NTD17/2014'. I add at this point that nothing flows from the fact that the mineral leases are sometimes abbreviated as ML and sometimes as MLN.

45    The Intervener explained, including by reference to the Determination, that:

Facts, which are understood to not be controversial and are relevant to understanding the descriptions set out above, include:

6.1.    the determination area of the earlier native title determination was NT Portion 4319, being the land the subject of the McArthur River Pastoral Lease, being Perpetual Pastoral Lease No.1051;

6.2.    native title was recognised to exist in NT Portion 4319 except those parts covered by public works as defined in s 253 of the NTA, including but not limited to public roads;

6.3.    the areas described in sub-paragraphs 6(1) to (4) of Schedule B fall entirely within the external boundaries of NT Portion 4319 save for:

6.3.1.    that part of MLN 1126 that extends into the sea;

6.3.2.    that part of the Road between the Port and the Mine that is within the external boundaries of the Narwinbi Aboriginal Land Trust; and

6.3.3.    that part of the Pipeline that extends south-west of NT Portion 4319;

6.4.    the areas described in sub-paragraphs 6.3.1 to 3 above are not the subject of any determination of native title.

46    I note by reference to the Schedule C map that it is apparent that each of the three areas described at para 6.3 of the Intervener's submissions (Contested Areas) fall outside the pink shaded area and outside the bold navy line of the map. The pink shaded area is bordered by the bold navy line. It is apparent from the bright pink label 'Native Title Determination NTD 17/2014' within the pink shaded area that it is the area the subject of the Determination. This can be confirmed by reference to the Determination.

47    The Determination describes the Determination Area as follows (Schedule A to Determination):

The Determination Area comprises the following areas of land:

1.    NT Portion 4319, being land the subject of Perpetual Pastoral Lease No. 1051.

48    The Determination includes as Schedule B a 'Map of Determination Area'. A copy of the Determination Area map, extracted from Mansfield J's published reasons, is attached as Annexure 2 to these reasons. It is apparent that the area delineated in bold blue is described as NT Portion 4319 and PPL [Perpetual Pastoral Lease] 1061. Those external boundaries of NT Portion 4319 are also the external boundaries of the Determination. NT Portion 4319 appears to accord with the pink shaded area surrounded by the bold navy line in the Schedule C map to the compensation application.

49    It follows that the Contested Areas clearly fall outside the bold navy line of the Determination Area shown on the Schedule C map. There is no bold navy line that surrounds that part of MLN 1126 that extends into the sea, that part of the Road (adopting the applicants' defined term) that traverses the Narwinbi Aboriginal Land Trust or that part of the Pipeline south-west of NT Portion 4319. Nothing in the map's legend or in the map itself indicates an intention to seek compensation for acts outside the area of the bold blue line.

50    Therefore, on its face, the references in the Form 4 compensation application to the geographic boundaries of the compensation application being within the outer boundaries of the Determination tell against a conclusion that the Contested Areas are within the compensation application area. It would follow that their inclusion by any amendment would purport to increase the area of the compensation application, contrary to s 64(1) of the NTA.

51    However, before finally determining the question, it is necessary to consider the particular amendments sought by the applicants and some competing submissions.

52    For completeness, I note that I was told during a case management hearing on 24 March 2023 that the area referred to at para 6.3.3 of the submissions (pipeline) is no longer relevant to the application and can be put to the side for now.

The applicants' proposed amendment to Schedule B

53    The applicants seek to amend paras 6 and 7 of the Form 4 (Schedule B) by way of the marked up changes indicated as follows:

6.    The compensation application area is that part of NT Portion 4319 comprisinges areas on which the McArthur River Project, as defined in the Agreement scheduled to the McArthur River Project Agreement Ratification Act 1992 (NT), is conducted, more particularly being:

(1)    the areas covered by Mineral Leases 582 and 1121 to 1126, and Exploration Licence 8078;

…

(3)    the area of the Road from the Mine situated on Mineral Leases 1121 to 1125 to the Port situated on Mineral Lease 1126 …

7.    The compensation application area is within the outer boundaries of overlaps the area covered by the earlier native title determination in Ngajapa v Northern Territory [2015] FCA 1249.

54    The changes proposed to paras 17 and 18 of the Form 4 are related consequential amendments. In para 17 the applicants set out the factual bases required by s 62(2)(e) and s 62(3)(b) of the NTA. They state:

… the Applicants rely upon the earlier native title determination and the circumstance that the application area is within the outer boundaries of the determination area.

55    In paragraph 18 the applicants set out the activities that are or were carried on by the claim group in the compensation application area as required by s 62(2)(f) and s 62(3)(b) of the NTA. In that context they state:

… the Applicants rely upon the earlier native title determination and the circumstance that the compensation application area is within the outer boundaries of the determination area.

56    It is apparent from para 7 of the Form 4 that the reference in paras 17 and 18 to 'determination' are to the Determination.

57    The applicants seek to amend paras 17 and 18 of the Form 4 by way of the marked up changes respectively as follows:

… the Applicants rely upon the earlier native title determination and the circumstance that the application area is within the outer boundaries of overlaps the determination area.

… the Applicants rely upon the earlier native title determination and the circumstance that the compensation application area is within the outer boundaries of overlaps the determination area.

The applicants' submissions

58    The applicants' substantive contentions may be summarised as follows:

(a)    it is accepted that NT Portion 4319 is the area covered by the Determination over the pastoral lease, but the Determination at cl 14(j) refers to the rights of MIM under ML 1121 to 1126 as other interests in the Determination Area and this inclusion of ML 1126 must be taken into account;

(b)    Schedule I of the application identifies both the grant of ML 1216 and the construction of the Road as compensable acts;

(c)    citing Saunders, the area covered by the application will be the area or areas in which the application alleges that native title rights have been affected by a compensable act (at [124]-[125], [132], [136]);

(d)    on a fair reading of the Form 4 application, the areas covered by ML 1216 and the Road are already included;

(e)    the amendments address an inconsistency within para 6 of the Form 4, with the use of the words 'that part of NT Portion 4319' in the chapeau to para 6 followed by the reference to the definition of the Project and the words, 'more particularly being' the areas described in sub-paras (1) to (4) - as well as an inconsistency between para 7 in referring to 'within the outer boundaries' of the Determination Area and the Schedule C map showing parts of ML 1126 and the Road outside that Determination Area but 'inside the boundaries of the compensation application area';

(f)    the facts are similar to those considered in Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923; (2000) 104 FCR 380 (Olney J) in which it was held in the circumstances of that case that a map was a more reliable exposition of the compensation area, in circumstances where the map wrongly included certain areas which did not form part of the relevant land description of the claim area;

(g)    Saunders is distinguishable as to its outcome because the compensable acts in this case are clearly enunciated and are within areas in which the compensation application alleges that native title rights have been affected by a compensable act;

(h)    it is no answer that there is not a pre-existing determination of native title in relation to the parts of ML 1126 and the Road outside the boundaries of the Determination. It is open to an applicant to claim compensation in respect of areas omitted from the scope of an earlier application for a determination of native title. Section 13(2) of the NTA provides that if the Court is making a determination of compensation and an approved determination of native title has not previously been made in relation to the whole or part of 'the area concerned', the Court must also make a current determination of native title in relation to the whole or part of the area - and see Saunders at [107]-[108];

(i)    applying Saunders at [138]-[139], Schedule B must be read in light of the acts identified in Schedule I, and Schedule I does not limit the compensable acts to NT Portion 4319 - and removal of the words as requested removes any inconsistency in this regard; and

(j)    any ambiguity should be resolved in favour of the applicants.

Consideration

59    As to the submission at [58(a)] above, the reference to ML 1216 in the Determination must be read having regard to other relevant provisions of the Determination. Clause 14 of the Determination is headed 'Other interests in the Determination Area' and cl 14(j) relevantly includes:

the rights and interests of Mount Isa Mines Limited under Mineral Lease Numbers 1121 to 1126 inclusive granted under s 4A of the McArthur River Project Agreement Ratification Act (NT) to which the non-extinguishment principle applies pursuant to s 46 of the Act;

60    Although ML 1216 is partially within and partially outside the Determination Area, I do not consider that the inclusion of ML 1216 in cl 14(j) expands the Determination Area to cover the boundaries of ML 1216. To do so would create conflict with the description of the Determination Area in the Determination in circumstances where such description is pivotal to the Determination.

61    Furthermore, cl 14 is linked to the question of areas within the Determination Area where there has been partial extinguishment of title. It has nothing to say about the parts of ML 1216 that fall outside the Determination Area. Clauses 9 and 10 of the Determination refer to the native title rights and interests of certain Aboriginal people 'in relation to those parts of the Determination Area identified in Schedule C'. Schedule C refers to those areas of land and waters being 'NT portion 4319, being land the subject of Perpetual Pastoral Lease No. 1051 except those parts thereof referred to in Schedule D'. Schedule D refers to 'Those parts of the Determination Area' covered by public works where certain native title rights and interest have been wholly distinguished.

62    Clause 15 relevantly provides that:

The relationship in the Determination Area between native title rights and interests and the other rights and interests described in clause 14 ('other rights and interests') is that:

(a)    the enjoyment and exercise of the native title rights and interests described in clauses 9 and 10 are partly inconsistent with the interests described in clauses 14(b) and 14(j) such that the native title rights and interests described in clauses 9 and 10 continue to exist in their entirety but have no effect in relation to the interests described in clauses 14(b) and 14(j) to the extent of any inconsistency;

(b)    if the interests described in clauses 14(b) and 14(j) or their effects are wholly removed or otherwise wholly cease to operate over any part of NT Portion 4319, the native title rights described in clauses 9 and 10 again have full effect to that extent;

…

63    Read together, it is clear from those clauses, with their connection and reference to the Determination Area and their statement as to the treatment of inconsistent interests and rights within the Determination Area, that there is no basis or purpose for interpreting the reference to ML 1126 as incorporating those parts of its geographical area outside the Determination Area.

64    In my view cl 15(j) is sensibly to be read as referring to the parts of ML 1216 that fall within the Determination Area.

65    As to the contention referred to at [58(b)], it can be accepted that Schedule I of the Form 4 application identifies both the grant of ML 1216 and the construction of the Road as compensable acts, but it does not follow that the rest of the drafting of the Form 4 is to be ignored when ascertaining the relevant geographic footprint of the compensation application area.

66    It is accepted, as discussed in Griffiths, that the geographic footprint of a compensation application area can extend beyond the area of the identified compensable acts. However, it does not follow that it may therefore be extended beyond the boundaries of the compensation area identified by Form 4.

67    In this case, the boundaries of the compensation area as currently expressed are subject to the limitation that they are within the outer bounds of the Determination Area. To the extent that the area of the identified compensable acts falls within the boundaries of the compensation area, then such areas are included in the compensation application. However, to the extent they are not, then I do not consider that inclusion in Schedule I alone operates to incorporate them. Schedule I does not purport to define the boundary of the compensation application area - that question is to be resolved by having regard to Schedules B and C and the Form 4 more broadly.

68    The submissions at [58(c)] and [58(d)] overlap with and are addressed by what has already been said as to [58(b)]. The area of a compensation application may exceed the area of the compensable acts. A description of the compensable acts may not of itself define the boundaries of the compensation application. In the context of considering whether a geographical area is included or excluded in the defined area of the compensation application, what is said in the Form 4 about the compensation application area and the areas where native title rights are said to have been affected must be taken into account, including by reference to Schedule B and Schedule C.

69    As to the submission at [58(e)], I do not consider there is a relevant ambiguity that is resolved by the proposed amendments. The chapeau to para 6 is consistent with the other limitations included in the Form 4. It limits the compensation application area to within NT Portion 4319, and so to the Determination Area. The fact that further particularity is provided in the subparagraphs does not purport to increase the area. The limitation in the chapeau is consistent with the reference in para 7 to the compensation area being 'within the outer boundaries of the earlier native title determination'. Paragraph 17 refers to the circumstances that the compensation application area is 'within the outer boundaries of the Determination'. This is repeated in para 18. None of the maps purport to incorporate the Contested Areas within a clear external boundary. That is not to say that there might not remain questions as to the proper boundaries of the compensation application area that might require further attention in due course, but what is clear at present is that there is no basis upon which any description of the compensation application area or the maps can properly be said to extend beyond the area of the Determination Area or to incorporate the Contested Areas. In those circumstances, s 64(1) operates to deny the amendment application.

70    As to the submission at [58(f)], the circumstances are not analogous to those in Wandarang. The issue in that case was whether certain lands and waters were 'contained in NT Portion 819'. The relevant lands and waters were strictly outside that portion, but were within the portion as (erroneously) marked on the map annexed to the determination application. Justice Olney found that those circumstances, together with other indications in the text, demonstrated that the applicants intended to claim all of the land indicated in the map, but had proceeded on the mistaken assumption that this was accurately described as land 'contained within NT Portion 819': at [35], [40]. That is not this case. In this case, the Determination Area is outlined in the map attached to the Determination and the Form 4. There is no suggestion the map is inaccurate in that regard. There is consistency between the map, the description of the Determination Area and the statements (for example, in paras 17 and 18) that the compensation application area is within the outer boundaries of the Determination Area. There is no confusion as to the limits of NT Portion 4319, as there was in Wandarang.

71    As to the submission at [58(g)], clearly the circumstances in this case are distinguishable from those in Saunders. In this case the compensable acts are identified. Even if questions arise as to the geographic area of the claims associated with those compensable acts (and this remains to be seen), nothing in the Form 4 suggests that the claim extends beyond the boundaries of the Determination, for the reasons already given.

72    As to the submission at [58(h)], it may be accepted that a separate native title determination might be made with respect to areas outside the Determination Area. But that does not resolve the issue at hand. Further, it is not apparent to me that the applicant has in fact sought any such determination as part of this claim or has proceeded on such basis.

73    As to [58(i)], the submission overlaps with and is addressed by the reasons above relating to the submissions at [58(b)], [58(c)] and [58(d)]. However, this submission rests in particular on [138] and [139] of Saunders (extracted above at [37]). The applicants submit, in effect, that Schedule I is to be given drafting precedence over Schedule B so that the area of the compensation application accords with the description of the compensable acts, regardless of what might be said in Schedule B. With respect, that is not how paragraphs [138] and [139] of Saunders are to be understood. As Rangiah J expressly observed, Schedule B is concerned with the area in which an act identified in Schedule I is claimed to have an effect upon native title rights and interests. So reference to Schedule B is required in order to ascertain the area of the compensation application, having regard to the compensable acts identified in Schedule I.

74    As to the submission at [58(j)], it is not in issue that the interpretation of a compensation application should not be approached as strictly as the interpretation of a statute or contractual agreement. The beneficial purpose that the NTA is intended to achieve may generally justify a broad interpretation: Wandarang at [38], relying upon Attorney-General (NT) v Maurice (1987) 73 ALR 326. However, an approach to the interpretation of a Form 4 cannot be so beneficial that it operates to undermine the statutory purpose of that Form, viewed within the wider statutory scheme.

75    In this regard, I refer in particular to [28] and [29] above and the purpose of the Form 4 as identified by Rangiah J in Saunders, and the importance of identifying and providing notice to relevant parties who may have an interest in the claim area. This has ramifications in the context of natural justice and the opportunity for interested parties to be heard.

76    There is also a related requirement of certainty. For the reasons explained in Griffiths and Saunders as set out at [25] and [32]-[35] above, the area of a compensation application cannot simply be assumed, either from the area of any native title determination, nor from the identification of a compensable act alone. Accordingly, there is a need for certainty and a level of precision in the description of claim areas. This competing requirement of certainty in my view tells against the beneficial interpretation sought by the applicant, particularly when viewed in the context of s 64(1).

77    Finally, as I have anticipated above, these reasons do not purport to resolve all ambiguities that might arise as to the manner in which the compensation area has been described in the Form 4. However, I have taken into account all of the various textual arguments made by the parties. There is no basis upon which I could properly be satisfied that the compensation application in its original form disclosed or purported to disclose that the Contested Areas fall within the compensation area the subject of the Form 4. I cannot allow an amendment contrary to the terms of s 64(1) of the NTA, and accordingly the application, insofar as it purports to amend paras 6-7 and 17-18 must be refused.

78    This result does not deny the applicants the potential to bring an application for compensation with respect to the Contested Areas separately as appropriate.

Admissibility of affidavits

79    For completeness, it has not been necessary to rely on an affidavit of Stewart Bryson filed on behalf of the respondent, nor an affidavit of Katya Pesce filed on behalf of the Intervener. The applicants objected to the tender of the Pesce affidavit. It is not necessary to resolve the objection.

Orders

80    In those circumstances, I made orders on 27 March 2023 that granted leave to the applicants to amend the compensation application in accordance with the proposed amended Form 4, save that the proposed amendments to paras 6, 7, 17 and 18 are not permitted.

Associate:

Dated:    4 April 2023

ANNEXURE 1

ANNEXURE 2

Map of Determination Area