Federal Court of Australia

Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 3) [2023] FCA 521

ORDERS

THE COURT DECLARES THAT:

1.    The request by McArthur River Mining Pty Ltd for the contractual indemnity in the form annexed to the Ward Keller letter dated 16 May 2023 or in any similar form is not a reasonable requirement for the purpose of order 9 of the access orders made 3 April 2023.

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 Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 2) [2023] FCA 455 I made certain access orders (dated 3 April 2023) to facilitate access to identified places within a compensation claim area for the purpose of taking evidence on country during the trial of this proceeding, which is listed to commence on 5 June 2023.

2    In my reasons I referred to the potential for the parties to approach the Court for further orders as to disputed logistical arrangements for the taking of evidence on country. It has become necessary for me to determine one further matter, and these reasons deal with that issue.

3    It is not unusual in proceedings such as these to take some evidence on country. This course was requested by the applicants and endorsed by both the Northern Territory and the Commonwealth. The orders provide for access to places within the boundaries of Perpetual Pastoral Lease 1051 and Mineral Leases 1121 to 1126, held by Mt Isa Mines Ltd (MIM), and within the McArthur River Project operated by McArthur River Mining Pty Ltd (MRM). Neither MIM nor MRM were parties to this proceeding, but I joined them as interested persons on the issues relating to access.

4    The parties have agreed a program for the trial, setting out dates, locations and the names of witnesses who may give evidence at those locations. Orders 9, 10 and 11 of the orders provide:

9.    The travel and logistical arrangements for the conduct of the inspection and evidence taking on site in accordance with the program is subject to any reasonable conditions, restrictions, supervision, or directions that may be reasonably required by MRM for the entry to, being upon, or as necessary for the safe operations of PPL 1051 and the McArthur River Project, with any dispute or objection to be dealt with under orders 10 and 11.

10.    Registrar Colbran may, at the request of a party or of MIM and MRM, or on her own motion, conduct a case management conference to address any matters concerning the travel and logistical arrangements for the conduct of the inspection and evidence taking on site in accordance with the program.

11.    There be liberty to the parties and to each of MIM and MRM to apply on 72 hours written notice to vary these orders and the program.

5    The parties (including in this context MRM) have subsequently conferred and participated in case management conferences conducted by Registrar Colbran, a registrar of this Court with particular experience in native title matters.

6    The parties have provisionally resolved many practical matters by consent. Communications are ongoing in that regard. These include unsurprising requirements relating to safety on site, such as vehicles travelling in supervised convoy and participation in safety induction sessions.

7    There remains (for now) one unresolved substantive matter. MRM claims that it is reasonable that it require a signed contractual indemnity from each party, witness, legal practitioner, judge, court staff, observer or other attendee who participates in either the inspection or taking of evidence on country. I will refer to these persons collectively as the trial party.

8    The terms of the indemnity requested are:

MRM's Form of Indemnity

I ___________________________________________, in consideration of being granted entry to the McArthur River Project mine site (Site) for the purposes of the Federal Court proceedings of Davey & Ors v Northern Territory of Australia & Ors No. NTD 25 of 2020 (Proceedings), irrevocably and unconditionally agree to indemnify:

(a)    Mt Isa Mines Limited ACN 009 661 447 (MIM);

(b)    McArthur River Mining Pty Ltd ACN 008 167 815 (MRM);

(c)    and any of MIM's and MRM's respective directors, members, employees, agents, invitees, contractors and consultants, (each an Indemnified Party) against any cost, loss, damage, claim, demand or action (including legal fees) suffered by any Indemnified Party arising out of or in connection with my entry on the Site for the purpose of the Proceedings, except to the extent that any such cost, loss, damage, claim, demand or action was caused by or arises out of:

(a)    a negligent, wilful or wrongful act or omission of an Indemnified Party or its agents; or

(b)    activities or actions (including inaction) requested, directed or authorised by an Indemnified Party.

[Signed etc]

9    Despite conferral and case management conferences conducted by the Registrar, the parties have been unable to resolve whether the request for the proposed indemnity is reasonable, and so, as anticipated by the access orders, it falls to the Court to determine whether the request is reasonable.

10    The circumstances of this particular dispute are unusual in that I am personally interested in the outcome, being one of the persons requested to provide an indemnity. Further, each of this Court, my associates and Registrar Colbran have also been requested to do so. Before determining this dispute, I raised this point and inquired as to whether each party, including MRM, consented to me determining the dispute. Counsel for each party gave that consent on behalf of their clients, and MRM provided written consent.

11    There are a number of overarching matters that provide important context to these reasons.

12    First, this is not a contractual negotiation with mutual consideration. The Court has ordered that access to the site be granted to facilitate the hearing of a compensation claim by native title holders that has, at its heart, a claim of damage and loss caused by activities on the claim area. Without access to the site, there is a risk that a fair assessment of the claim would be compromised. That is why access has been ordered.

13    Second, it is not in issue that due regard must be paid to safety issues that might arise from a group of people entering land where an operational mine is located, albeit that the group members will have no role with respect to the mine or its operation, and are there solely for the purpose of a court hearing.

14    Third, the integrity of the process for taking evidence must be respected and maintained. That is, the prospect that any step might inhibit a witness or cause them discomfort in attending to give evidence is to be minimised. Unusual requirements or conditions may amount to impediments in this regard.

15    Fourth, the trial dates in June 2023 were allocated in November 2021. Vacating and rescheduling court dates will inevitably lead to unwarranted stress for witnesses, and inefficiency and loss of sunk resources for all parties involved. The impact on court resources must also be taken into account. The funding of and facilitation of on country hearings requires careful planning.

16    These matters are to be weighed in the balance when having regard to conditions on access that might be imposed.

17    The starting point in considering the proposed contractual indemnity is the purpose of order 9, and whether the indemnity has any role to play in that regard.

18    It is clear that the intention of order 9 was to ensure that MRM could put in place restrictions on movements or other practices that are reasonably necessary to ensure the safety of those on site, including the trial party, visitors and workers. To this end, it is to be expected that MRM may require people to stay at particular distances from operational parts of the mine or other hazards, to travel on designated roads and to travel in supervised convoy. It is also to be expected that all those entering the site would undertake any safety briefing that might be relevant, taking into account the fact that the only activity to be undertaken is a court proceeding, rather than any direct involvement with the mine operations.

19    It is not apparent that the proposed indemnity will assist with respect to safety. The indemnity seeks to address the allocation of financial risk. Despite this important distinction, I turn to consider the terms of the proposed indemnity.

20    Inquiries within the Court registry did not identify any examples of such an indemnity being sought or provided for an on country hearing. Registry has made inquiries as to the potential for Comcover to provide such an indemnity. It is a matter of public record that the Federal Court of Australia is party to an insurance policy with Comcover. I was told that the Northern Territory and the Commonwealth had the same policy in place through Comcover. MRM was provided with a copy of the relevant terms.

21    The general position under the policy is that Comcover will not respond to liability arising out of an indemnity, subject to certain exceptions. Relevantly, under the policy there may be an exception where the Court:

[has] followed Australian Government policy on issuing and managing indemnities and, after making reasonable inquiries, [has] assessed:

(i)    the likelihood of the event giving rise to the liability occurring as being less than 5%; and

(ii)    the most probable expenditure that would need to be made if the event giving rise to the liability occurred as being less than $5,000,000.

22    The potential to fall within this exception in not easily determined. There would need to be an assessment of 'Australian Government policy on issuing and managing indemnities' and an identification and assessment of relevant 'events' that might occur. MRM has not identified any particular 'event' in this context. One could anticipate a number of potential events and an assessor would need to address each of those, and the 5% and $5,000,000 thresholds, before the Court might be in a position to consider the prospect of any indemnity being relied upon. Whether this could all be done prior to trial is moot at best.

23    MRM did not seek to be heard at the case management hearing before me when this issue was addressed. However, it indicated that it would abide the decision of the Court and otherwise relied on legal advice it had received from its legal representatives, Ward Keller, which I received (by way of submission only). MRM accordingly waived legal professional privilege in the advice.

24    In short, Ward Keller did not refer to the access orders already made by the Court. The letter included the following conclusionary statements with respect to health and safety:

(a)    the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) imposes health and safety duties on MRM as a person with management or control of a workplace;

(b)    those duties include a duty to ensure as far as reasonably practicable that the health and safety of other persons is not put at risk from work carried out 'as part of the conduct of the business or undertaking';

(c)    those duties also include a duty to ensure as far as possible that the means of entering and exiting the workplace and arising from the workplace are without risks to the health and safety of any person; and

(d)    the duties extend to officers of MRM and impose personal liability on those officers if they fail to exercise due diligence to ensure that MRM complies with its obligations.

25    Assuming the claim area to be a 'workplace', and although the court proceeding is not 'part of the conduct of the business or undertaking', it is accepted that MRM has certain important statutory health and safety obligations. The capacity under order 9 to give directions and provide supervision is consistent with MRM seeking to comply with its obligations.

26    Ward Keller also comment on the requested indemnity, stating that although MRM does not require an indemnity from visitors who it invites on site, 'if access is to be obtained otherwise than at the invitation of MRM then it is appropriate for MRM to seek an indemnity given the increased risks and the duties that arise'. Ward Keller also refer to the Comcover indemnity exception and state that if the Court cannot be satisfied as to the 5% and $5,000,000 conditions so as to take advantage of the exception under which Comcover may respond, then 'that may provide a real basis for the entry and activity not proceeding'.

27    It is not clear why there is an increased risk profile when people attend site in accordance with the terms of a Court order rather than by invitation. However, I understand that one of the practical issues is the potential number of people who may constitute the trial party. If this is the source of the concern, it can be addressed by the reasonable directions and supervision anticipated by order 9. I also note in this regard that having taken specific instructions, the applicants' counsel indicated that the applicants accept that a level of compromise as to the number of persons who would be present on site is reasonable. It is also to be expected that insofar as vehicles are driven on site, the parties will have insurance arrangements in place.

28    It is also unclear whether Ward Keller are suggesting that the trial party members should indemnify MRM officers for liability for breaches of the Act. That would be surprising, and the first exception under the proposed contractual indemnity may extend to any such liability. In any event, if the trial party members are responding to directions and supervision from MRM, as order 9 envisages, it is likely that the second exception under the proposed contractual indemnity could be relied upon by members, and so the value of the indemnity to MRM may be somewhat elusive.

29    Importantly, the letter does not refer to any particular 'event' or 'events' that the indemnity seeks to cover. So it is unclear how steps could be initiated quickly to progress the risk assessment and consent process that the Court (and potentially the Northern Territory and the Commonwealth) would need to implement in order to facilitate their reliance on the Comcover indemnity exception.

30    In all of the circumstances, and having regard to the matters of context set out above, I do not consider that the requirement of a contractual indemnity from the members of the trial party is a reasonable condition of access to site for the trial. The Court has already ordered that access be provided for the trial, and so witnesses, support persons, counsel, transcription providers and other persons are accordingly obliged to attend on site in order for the trial to proceed. To impose the obligation of a contractual indemnity on them in those circumstances is a disproportionate response to the access orders, in circumstances where those orders already acknowledge that it is appropriate that there be reasonable direction and supervision by MRM connected to the activities of the trial party.

31    Finally, I expressed concern at the hearing that the requirement of an indemnity has the potential to inhibit the willingness of a witness to give evidence, and so to interfere with the trial process. I was informed by counsel for the applicants that MRM had suggested that it might be content with a contractual indemnity from each of the Court, the Northern Territory and the Commonwealth, rather than from individual persons. Although that might constitute a valuable concession on the part of MRM, I remain of the view that the indemnity is not a reasonable condition of access and that health and safety issues are to be met by way of appropriate directions and supervision, particularly in circumstances where it remains unclear what 'events' might be the subject of the proposed indemnity, and where the time in which any Comcover risk assessment of the site might be undertaken and consent procured without the risk of adjournment of the trial is restricted.

32    Accordingly, there will be a declaration to the effect that the request by MRM for the contractual indemnity in the form annexed to the Ward Keller letter dated 16 May 2023 or in any similar form is not reasonable for the purpose of the access orders made 3 April 2023.

33    I do not propose to make any order as to costs. If any party seeks costs, they may approach Chambers and I will hear the parties further.

Associate:

Dated:    23 May 2023