Federal Court of Australia

Lockyer for and on behalf of the Robe River Kuruma People v Citic Pacific Mining Management Pty Ltd (No 2) [2024] FCA 154

ORDERS

THE COURT ORDERS THAT:

1.    Within seven days, counsel for the parties shall confer and propose the terms of final orders.

2.    If agreement is not reached as to the terms of final orders then the parties shall provide separate minutes of orders.

3.    Within seven days thereafter, the parties shall file and serve any written submissions of no more than five pages as to the terms of final orders.

4.    Subject to further order, the terms of final orders will be determined on the papers.

5.    There be liberty to the respondents to apply within seven days to seek any contribution as to costs from the cross-claimant to the second cross-claim.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The Participants in the Sino Iron Project proposed to establish an iron ore mine at Cape Preston, about 100 kilometres south of Karratha in the Pilbara region of Western Australia. The iron ore was to be extracted from land the subject of three mining leases (Lease Area). The Participants also held other tenements and had pending applications for further tenements for the purposes of the Project. Most of the land the subject of the mining leases, other tenements and pending applications (Tenement Area) was within the boundaries of the pastoral lease for Mardie Station. However, the pastoral lease also extended much further to the east, west and south covering an area many times larger than the Tenement Area.

2    An area of land and waters was identified (Agreement Area) which encompassed (a) the Tenement Area; (b) the area of the pastoral lease for Mardie Station; and (c) an adjacent offshore area. At that time, the Agreement Area was within the boundaries of three registered Native Title Applications. None of the Native Title Applications covered the whole of the Agreement Area.

3    The Native Title Applications were brought by claimants on behalf of (a) a group of people then described as the Kuruma Marthudundera People; (b) a group of people then described as the Yaburara and Mardudhunera People; and (c) the Wong-Goo-Tt-Oo People. Without intending any disrespect, I will adopt the abbreviations KM People, YM People and WGTO People respectively to refer to each of these three groups. As will emerge, different names are now used to describe the relevant groups. The changes reflect certain aspects of the way in which the Native Title Applications brought by the KM People and the YM People came to be determined. It will be necessary, in due course, to refer to those aspects and their consequences. For now, it is sufficient to focus upon the groups of people on whose behalf the Native Title Applications were commenced.

4    The land the subject of the Native Title Applications brought by the KM People and the YM People overlapped to a considerable extent. The area of the overlap covered most of the Tenement Area as well as much of the area of the pastoral lease for Mardie Station that extended beyond the Tenement Area. Like the parties, I will refer to this area of overlap between the two Native Title Applications, as at 2008, as the Overlap Area.

5    Under the terms of the Native Title Act 1993 (Cth) certain statutory rights (sometimes referred to as procedural rights or the right to negotiate) are conferred upon registered native title applicants: see Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at [23]-[37]. They include a right to negotiate concerning activities that are proposed to be carried out in the future on land and waters the subject of a registered native title claim that will extinguish any such native title or create interests that are inconsistent with the rights or interests the subject of the native title claim. The negotiations may result in an indigenous land use agreement or ILUA.

6    An ILUA, if registered, will generally validate future acts to the extent that they affect native title. An unregistered ILUA may still take effect as compliance with the provisions of the Native Title Act concerning the right to negotiate.

7    Mineralogy Pty Ltd and two of the Participants entered into an ILUA with the KM People, the YM People and the WGTO People in respect of the Tenement Area (First ILUA). It was styled 'Cape Preston Project Deed (ILUA)'.

8    The Participants entered into a further ILUA with the KM People, the YM People and the WGTO People in respect of the Agreement Area (Second ILUA). It was styled 'Cape Preston Project Deed (Mardie ILUA)'. It referred to 'the Project Titles' and 'Mardie Station'. The 'Background' at the beginning of the Second ILUA recited: 'The Project Titles and Mardie Station are located within the boundaries of the Native Title Applications'. The term Project Titles is defined to include the granted, pending, future and replacement tenements for the Project as well as the pastoral lease for Mardie Station. That is to say, it is not confined to the mining interests but includes the pastoral lease which accounts for the greatest part of the Agreement Area (outside the Tenement Area).

9    By each of the First ILUA and the Second ILUA, consent was given by the registered applicants for the Native Title Applications (as well as a corporation for and on behalf of the YM People) to the grant of titles for the purposes of the Project. Further, provided the Participants observed the 'Cultural Heritage Protocol' provided for in the ILUAs, those parties agreed not to object to the grant, issue or renewal of approvals for the Project and not to oppose (including by making submissions or representations) notices lodged by the Participants under legislation that applied to protect aboriginal heritage and the environment. They also agreed that the benefits to be provided under separate compensation deeds were in full and final satisfaction of any obligation by the Participants or the State of Western Australia to pay compensation under the Native Title Act, other specified legislation, at law or otherwise 'arising out of or in connection with' the grant, renewal or operation of the interests of the Participants in the Project and 'the conduct of Activities in the Agreement Area and the effect of any of those matters on TO Rights'.

10    It is common ground that the definition of the term 'Activities' as used in the ILUAs covered all activities to be carried out on the land in the Agreement Area as part of the Project. The question whether the definition of Activities encompassed other activities on the land in the Agreement Area is addressed below.

11    The term 'TO Rights' was defined broadly in both ILUAs. It included native title rights and interests but also included Traditional Rights held by the KM People, the YM People and the WGTO People as well as rights in relation to land and waters held by Aboriginal people in common with other members of the public. The term Traditional Rights was defined in the Second ILUA (which related to the Agreement Area) in the following way:

the rights and interests held by the KM People, the YM People, the WGTO People or any of them under Aboriginal laws and customs in relation to the Agreement Area, which may not be native title rights and interests, including rights which, although not recognised by the Law are, subject to this Deed, exercisable in relation to the entire Agreement Area.

(emphasis added)

12    It was suggested for the Participants that the words of inclusion at the end of the definition somehow qualified the broad scope of the definition when it referred to rights and interest under Aboriginal laws and customs 'in relation to the Agreement Area' which may not be native title rights. However, that suggestion should not be accepted. The words of inclusion at the end of the definition of Traditional Rights could not operate to confine the main part of the definition (which referred to rights and interests 'in relation to' the Agreement Area) in a way that meant that the only rights and interests included in the definition were those that extended over the entire Agreement Area. In order for those rights that are exercisable 'in relation to the entire Agreement Area' to be rights that are included in the scope of the main part of the definition, the language of the main part of the definition must have been intended to apply to rights that were not that extensive. The explanation for the reference to 'the entire Agreement Area' in the words of inclusion is explained by the fact that none of the three groups claimed native title rights in relation to the whole of the Agreement Area. The words of inclusion make clear that the Traditional Rights for each of the three groups are not confined to those rights in the part of the area in respect of which that group claimed native title. That is to say, they ensure that the various provisions that deploy the definition of TO Rights apply to all rights of traditional owners in relation to the Agreement Area and not just to native title rights and not just to other rights of Aboriginal people in respect of the land in which they claim or have been determined to hold native title.

13    This construction of the definition is confirmed by a consideration of the character of the provisions in which the definition is deployed being provisions which, amongst other things, consent to the grant of tenements and the renewal of those tenements and the pastoral lease for Mardie Station as well the activities for the Project. The definition is also used to identify the extent of the claims for which the agreed compensation is 'in full and final satisfaction' and the scope of covenants not to sue and claims for which the ILUAs may be pleaded in bar or in respect of which a claim of indemnity or set-off may be raised. Those provisions are expressed to benefit not only the Participants and the holder of any Project Title, but also the State of Western Australia. Given the evident purpose of the Second ILUA (which concerns the Agreement Area) it is most unlikely that these comprehensively expressed provisions were intended to capture only part of the rights and interests that may be raised by traditional owners when it came to the Agreement Area.

14    In consequence, by the terms of the ILUAs the parties to each of them agreed that the compensation to be paid under separate compensation deeds was in satisfaction of obligations to pay compensation that extended well beyond any such obligation that may arise by reason of asserted or determined native title rights and interests.

15    The ILUAs also included an agreement that its terms satisfied the procedural rights conferred by the Native Title Act as well as covenants by the authorised applicants in the Native Title Applications brought on behalf of the KM People, the YM People and the WGTO People.

16    In addition, the Second ILUA (which applied to the whole of the Agreement Area, including the whole of the area of the pastoral lease for Mardie Station) also included the following:

The Parties each consent to the grant to the [Participants] of any tenements or titles within the boundaries of the Mardie Pastoral Lease for purposes which are not part of the Project but which are conducted by the [Participants] as part of its Community Engagement Programme such as tourism ventures and a prisoner release facility and the Renewal of those tenements or titles.

17    As to the Cultural Heritage Protocol, a very detailed document of that description was included as a schedule to the relevant compensation deed (and is referred to below in dealing with the issues). At this point, I simply note that the Protocol has provisions which apply where the Participants propose to undertake the construction of major, permanent buildings connected with the operation of Mardie Station as well as planning, constructing and operating the Community Engagement Programme.

18    Amongst other warranties recorded in the ILUAs (on the basis of best information and belief), the Native Title Parties (defined to include the authorised applicants and the people on behalf of whom they brought the Native Title Applications) warranted as at the date of the instrument that no person other than the KM People, the YM People and the WGTO People holds the 'Traditional Rights' claimed by the group of people to be the Traditional Rights of that group. As has been explained the term 'Traditional Rights' was used to refer to rights under Aboriginal laws and customs which may not be native title rights. The warranty to the effect that no other person holds Traditional Rights supported the comprehensive terms of the ILUAs.

19    In addition, the KM Native Title Party (being the registered applicant for the Native Title Application by the KM People) warranted that the KM People 'hold or may hold' native title in the Agreement Area. In contrast, the WGTO Native Title Party and the YM Native Title Party each warranted that they 'hold' native title in the Agreement Area.

20    The ILUAs also provided expressly that each of the Native Title Parties does not acknowledge or agree that any other Native Title Party has any native title rights or any other rights or interests under traditional law and custom in the Agreement Area.

21    Therefore, it was plain that the ILUAs were entered into in circumstances where the outcome of each of the Native Title Applications was uncertain and there were competing claims to a considerable part of the Agreement Area (being, at least, the extent of the Overlap Area the subject of claims by both the KM People and the YM People). It was also plain that the ILUAs intended to secure comprehensive consents from the three people groups as to the Activities. That is to say, the provisions of the instruments were not confined to what was required to obtain agreement to the grant of mining tenements (and consequentially the activities that were authorised by those tenements). The terms of the ILUAs were expressed much more broadly.

22    On or about the date of execution of the First ILUA and the Second ILUA (and as required by their terms), the Participants also entered into separate compensation deeds for the benefit of each of the KM People, the YM People and the WGTO People.

23    Each of the compensation deeds set out in detail the compensation to be provided for the consents to be given by each of the three groups to the conduct of the Project by the Participants and the grant and validity of the 'Project Interests'. They each repeated the covenants not to sue and the covenants allowing the instruments to be pleaded in bar to any claim, a covenant granting rights of indemnity and a covenant granting rights of set-off, all of which were for the benefit of the Participants. They were expressed to apply in relation to any effect on the TO Rights of the grant, renewal or operation of the Project and the conduct of the Activities. As with the provisions in the ILUAs, they were expressed to benefit subsequent holders of the interests and the State of Western Australia.

24    The agreement with the authorised applicants for the KM People was styled 'Cape Preston Project Deed (KM Compensation)' (KM Compensation Deed). Its terms are relied upon as a basis for a claim that the Participants have an ongoing obligation to pay compensation by way of annual payments according to its terms. The claim is disputed by the Participants.

25    The dispute extends to include the YM People who, by Wirrawandi Aboriginal Corporation RNTBC (WAC) acting as trustee for the YM People, claim that they are the people who are beneficially entitled to the payment of compensation under the terms of the YM Compensation Deed.

26    The dispute concerning the payment of compensation has arisen because of the circumstances in which the competing native title claims by the KM People and the YM People were determined. Those circumstances included the entry into a succession of deeds between the KM People and the YM People in 2013, 2014 and 2018, the making of an amendment to the Native Title Applications by each of the KM People and the YM People and the terms in which consent determinations of native title ultimately were made to resolve those applications. I will refer to those deeds as the 2013 Deed, the 2014 Deed and the 2018 Deed.

27    At this point, it is sufficient to note that the determination of native title in favour of the KM People was preceded by the withdrawal of the claim made by them over the whole of the Overlap Area as well as over almost all of the balance of the Agreement Area. In consequence, the determination of native title in favour of the KM People relates to a very small part of the Agreement Area being an area which is located on the southern-most part of the Agreement Area, a very considerable distance away from the Tenement Area where the mining operations for the Project are being carried out by the Participants. It is said to comprise only 0.24% of the Agreement Area. However, it forms part of a much larger adjacent area (outside the boundaries of the Agreement Area) in respect of which the KM People were determined to be the holders of native title rights and interests.

28    As to much of the balance of the land within the Agreement Area, the YM People were determined to be the holders of native title rights and interests in that land. However, as is explained below, the determination was made on the basis of an expansion of the group of persons on whose behalf the application was made to include a number of people who were part of the KM People. In consequence, some people were identified as being within both groups. The determination of native title held by the YM People also identified certain of the KM People who were entitled to what were described in submissions as 'secondary rights'. Whether these aspects have significance for the resolution of the dispute concerning the annual payments of compensation provided for in the KM Compensation Deed is a matter that is addressed below.

The claim by the KM People

29    The KM People claim that they are entitled to ongoing annual payments under the KM Compensation Deed.

30    The relevant provision in the KM Compensation Deed that is relied upon by them (cl 5.2(a)) provides:

The [Participants] will make an Annual Payment to the KM Parties of:

(1)    $750,000 per annum, for Year One to Year Three (inclusive); and

(2)    $1,400,000 plus CPI per annum, for Year Four until the end of the Payment Term (inclusive).

There is also provision for the payment in (2) to be uplifted by an additional payment of $1,600,000 plus CPI in any year where production from the project exceeds 40 million tonnes (see cl 5.2(c)).

31    Therefore, it is the 'KM Parties' who have the entitlement to the benefit of the annual payments to be made by the Participants under the terms of the KM Compensation Deed. The reference to 'the KM Parties' is defined to mean each of 'the Native Title Party and the KM Community Organisation'. The Native Title Party is defined as:

The persons whose names appear from time to time on the register of native title claims as the people who are taken to be representative of the claimants in relation to the Native Title Application for and on behalf of themselves and the KM People, and includes the KM People.

In the KM Compensation Deed, the words in italics have been added in handwriting and initialled.

32    The definition of 'Native Title Party' may be compared with the description of the 'Native Title Party' entering into the KM Compensation Deed as five named people (including Ms Gloria Lockyer) 'for and on behalf of themselves and the Kuruma Marthudunera People in [the Native Title Application for the KM People]'.

33    The definition of KM People in the KM Compensation Deed is quite detailed. It is as follows:

(a)    the KM Native Title Party and all persons on whose behalf the KM Native Title Application is made;

(b)    any Aboriginal person or persons determined:

(1)    under an approved determination of native title to be a native title holder over the Agreement Area as a Kuruma Marthudunera person in accordance with the KM Native Title Application;

(2)    by a court of competent jurisdiction to be a Kuruma Marthudunera person;

(c)    if the KM Community Organisation is a party to this Deed, those persons who are members of the KM Community Organisation; but

Other Registered Claim Groups

(d)    does not include the WGTO Native Title Party, or the YM Native Title Party, or a person on whose behalf the WGTO Native Title Application or the YM Native Title Application is made, unless that person is otherwise accepted by the KM Community Organisation as a member of the KM People.

34    Again, the italics indicate a handwritten and initialled change. For present purposes, it is paragraph (d) of the definition that is significant. It expressly excludes the YM People and the WGTO People from the 'KM People' who are entitled to the annual payments under the KM Compensation Deed. In due course, it will be necessary to return to this aspect of the definition.

35    As to the KM Community Organisation, the KM Compensation Deed provides for the assignment of the rights and obligations of 'the Native Title Party' to a prescribed body corporate that holds on trust any determined native title rights of the KM People (cl 16.2). It is that body that is referred to in the deed as the KM Community Organisation. The Robe River Kuruma Aboriginal Corporation RNTBC (RRK Corporation) claims to be such a body. Its claim is not disputed by the Participants or WAC.

The issues for determination

36    Since 2019, the Participants have not made any annual payments to the KM People as provided for by the terms of the KM Compensation Deed.

37    In the above circumstances, Ms Lockyer (for and on behalf of the KM People) and RRK Corporation (together, the RRK Claimants) seek relief on the basis that the Participants have an ongoing obligation to make annual payments of compensation to the KM People under the terms of the KM Compensation Deed. The Participants deny that the RRK Claimants are entitled to any such relief. They claim that the future performance of the KM Compensation Deed has been frustrated. They also bring a cross-claim seeking a declaration that any rights of the KM People under the Compensation Deed 'are attached' to the YM People who can call for an assignment of those rights to them.

38    As presented orally, the Participants advance two contentions in answer to the claim, namely:

(1)    The KM Compensation Deed has been frustrated by reason that the KM People have been determined to be the holders of native title in what is said to be a very small and insignificant part of the Agreement Area, being a circumstance that has arisen following the voluntary withdrawal by them of their claim to native title in the Overlap Area as well as much of the rest of that part of the Agreement Area that was the subject of their application for a determination of native title.

(2)    Alternatively to (1), WAC as trustee for the YM People is now 'the appropriate counterparty' for any claim to compensation under the KM Compensation Deed.

39    As to (2), the position of the Participants is that if (contrary to their principal position) the KM Compensation Deed has not been frustrated then the Participants wish to have certainty as to the proper party to whom the compensation provided for in the deed should be paid. The Participants accept that the position concerning the proper party will be determined by the resolution of a separate cross-claim brought by WAC.

40    Outside of their contention that the KM Compensation Deed has been frustrated, the Participants do not contend that, on a proper construction of the deed, the annual payments are not due. That is to say, the Participants accept that the performance of the KM Compensation Deed that the RRK Claimants seek is performance in circumstances that are within the terms of the provisions as to the making of annual payments, but say that when regard is had to the KM Compensation Deed as a whole (and relevant matters of context) that performance is sought in radically different circumstances to those which the parties agreed, such that the performance of the deed has been frustrated according to common law doctrine.

41    By its separate cross-claim, WAC claims to be entitled to the payment of the annual payments under the terms of the KM Compensation Deed. It relies upon the terms of cl 11 of the 2018 Deed. It contends that cl 11 of the 2018 Deed has the consequence that the annual payments to be made under the KM Compensation Deed, when received, are to be held on trust for the YM People. So, there is an issue between WAC and the RRK Claimants as to the proper construction of cl 11 of the 2018 Deed. Implicit in the nature of WAC's separate claim is that it too maintains that the KM Compensation Deed has not been frustrated (though it made no separate submissions to that effect).

42    A separate claim by the Participants based upon the terms of s 11(2) of the Property Law Act 1969 (WA) to the effect that the Participants are entitled to the benefit of cl 11 of the 2018 Deed and can rely upon that provision in answer to the claim by the RRK Claimants is not pressed because, in effect, the Participants will abide by a determination of WAC's cross-claim if its frustration case is not accepted.

43    It follows that there are two issues for determination:

(1)    Whether, by reason of the events that have occurred in relation to the native title claim by the KM People, the KM Compensation Deed has been frustrated?

(2)    If the KM Compensation Deed has not been frustrated, are the rights to the payment of annual payments under the terms of that deed to be received by KM People on trust for YM People?

44    I begin with matters of principle.

The doctrine of frustration

45    Where parties enter into a contract on the basis of a common assumption that the contract will come to be performed in circumstances where a particular thing or state of affairs will continue to exist or be available then the agreement will be frustrated (and the parties to the contract will no longer be bound to perform the contract) if, after entry into the contract, the parties discover that the assumed thing or state of affairs no longer exists or is no longer available, as the case may be, without default of any party. The common assumption is a matter that must be established from the terms of the contract considered in the context of any surrounding circumstances that bear upon its proper construction.

46    In order to ascertain whether a particular alleged common assumption did form a basis for the contract, it is necessary to construe the terms of the contract according to ordinary contractual principles. Then, with that understanding, there must be regard to those terms as properly construed to ascertain whether they demonstrate a common assumption as to the circumstances in which the agreement would be performed - in effect, something that must exist in order for the law as to contracts to continue to require its performance according to its terms.

47    Provisions of the contract which provide for eventualities or risks which will only arise if the thing or state of affairs, the existence or availability of which is said to have been commonly assumed, did not in fact exist or was not available will count against a conclusion that the alleged common assumption formed a basis for the contract. Otherwise, the doctrine requires a conclusion to be reached as to whether regard to all of the terms of the contract, properly construed, reveals a common contractual assumption as the foundation for those terms, being an assumption that may not be expressly stated but can nevertheless be discerned from its terms and the same surrounding circumstances that bear upon its proper construction.

48    Although some statements of the doctrine refer to a contractual obligation becoming incapable of being performed, those statements are properly understood as referring to performance that is radically different because the contractual obligation, if enforced, would require performance in radically different circumstances to those which (regard to the contractual terms and relevant context shows) were commonly assumed by the parties to be the limited or particular circumstances in which the contract would be performed.

49    Also, it is not the mere fact that something different or unexpected has occurred that provides a basis for the application of the doctrine. Rather, it is necessary to show that the new state of affairs is of a kind that will mean that performance of the contract will be outside the boundary of what was promised; not because the required performance is different but because the performance will be required in circumstances beyond those in which the promise was agreed by the parties to be performed (having regard to the terms as agreed).

50    Finally, the Court approaches its consideration as to whether there was a relevant common assumption for the purposes of the doctrine of frustration recognising that contracts are instruments for allocating risks as to future performance including the risks as to what may occur that was not in the actual contemplation of the parties. There is no sense in which the doctrine may be applied to ameliorate the consequences of risks or events that produce outcomes that might be viewed with hindsight as being unfair or unreasonable for one or other of the parties because of an unforeseen eventuality. Rather, the Court looks to whether, viewed objectively, there was a common assumption by the parties at the time of their agreement (evident from its terms and relevant context) as to the circumstances in which the agreed terms would be performed which means that the law confines the usual obligation to perform the contract in all future circumstances to an obligation to perform in all circumstances where the common assumption pertains. If the common assumption does not pertain then the agreement has been frustrated because circumstances have occurred in which the parties, by their common assumption at the time of making the agreement (discerned objectively), agreed that their contract would not be performed.

51    A frustrating event terminates the contract prospectively.

52    The doctrine of frustration also applies to deeds.

53    As to these matters of principle, see Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 357-360 (Mason J, Stephen and Wilson JJ agreeing), 376-381 (Aickin J, Stephen J agreeing), 408-409 (Brennan J); oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd [2011] VSCA 116; (2011) 32 VR 255 at [63]-[70] (Nettle JA); Ange v First East Auction Holdings Pty Ltd [2011] VSCA 335 at [78]-[79] (Sifris AJA, Neave and Tate JJA agreeing); Nelson v Moorcraft [2014] WASCA 212 at [131]-[144] (Buss JA, Newnes JA agreeing); and Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) [2019] NSWCA 53 at [56]-[69] (Leeming JA, Sackville AJA agreeing).

Proper approach to the construction of commercial instruments

54    The parties made no submissions concerning the well-established principles as to the construction of commercial instruments. In determining their meaning, it is necessary to ask what a reasonable businessperson would have understood the terms to mean. Consideration must be given to the language used, the surrounding circumstances known to them and the commercial purposes or objects secured by their contract and the words used must be given a businesslike interpretation: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35] (French CJ, Hayne, Crennan and Kiefel JJ); and Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104 at [46]-[52] (French CJ, Nettle and Gordon JJ).

55    Documents that form part of a suite of commercial instruments should be construed together: Zhu v Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530 at [82]. Recitals can be used to construe the operative provisions: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 at [379]-[390] (Campbell JA, Allsop P and Giles JA agreeing).

Issue (1): Whether, by reason of the events that have occurred in relation to the native title claim by the KM People, the KM Compensation Deed has been frustrated?

56    The Participants claim that the voluntary withdrawal by the KM People of the claim boundary for their Native Title Application so that it did not cover any part of the area where the Participants operate the Project was an event that was never contemplated by the Participants. They say it has resulted in a radically different situation to that contemplated by the parties when they entered into the KM Compensation Deed. They also allege that there is nothing substantial that the RRK Claimants can now do to perform their side of the bargain. They say that the KM Compensation Deed is now 'completely inoperative for the whole of the [Project] and practically all of the [area of the lease for Mardie Station]' and it 'cannot operate as originally intended'. They say that the KM Compensation Deed does not contemplate what is said to have been a concession by which the KM People voluntarily withdrew their native title claim to the whole of the Overlap Area and almost all of the Agreement Area with the result that it is the YM People who have been determined to hold native title over 'substantially all of the Agreement Area'.

57    They also submit that key clauses for the meaningful operation of the KM Compensation Deed are unworkable. In particular, they say that the KM People cannot grant the Participants any future native title or heritage approvals that they might require. They say that the RRK Claimants 'are incapable of assuming and performing the obligations of the Native Title Party under the KM Compensation Deed and [the ILUAs]'. They also submit that there is no evidence as to what the small portion of the Agreement Area in respect of which the KM People have been determined to hold native title may be used for by the Participants.

58    Finally, they submit that claims by RRK Claimants to the effect that some KM People do have relevant interests under the determination of native title in favour of the YM People should not be accepted.

59    The oral submissions advanced for the Participants emphasised what was characterised by them as a voluntary concession by the KM People made after entry into the KM Compensation Deed that they did not hold native title over almost all of the Agreement Area and the alleged lack of any ongoing benefit to the Participants of performance of the KM Compensation Deed for the limited area within the Agreement Area as to which the KM People had been determined to have native title.

60    The case for the Participants depends upon establishing a common assumption to the effect that the ongoing obligations of the Participants were only to be performed if the KM People were determined to have native title over those parts of the Agreement Area that were significant for the Project, or perhaps alternatively that they were only to be performed if the Native Title Application brought by the KM People over those parts was not voluntarily withdrawn.

61    There was no real dispute that the ILUAs were part of the context to which it was proper to have regard in construing the KM Compensation Deed, as was an understanding of the broad nature of the Project as a mining project to be undertaken on the tenements (or some of them).

62    For the following reasons, a common assumption of the kind asserted by the Participants has not been established and the claim of frustration advanced by them must be rejected.

63    First, the KM Compensation Deed was not confined to claims and interests of the KM People that were native title interests, nor did its terms suggest that such claims and interests were its only concern. Its express terms operated comprehensively with respect to any and all claims of the KM People which might form the basis for objecting to any approvals needed for the Project (including approvals that may be sought in respect of future tenements) or the basis for a claim to compensation. The key operative provisions were not confined to the status of KM People as native title claimants. The compensation was provided for agreed terms that applied for the duration of the Project in respect of any basis for an objection that may be raised by the KM People at any time. Its comprehensive and ongoing nature is inconsistent with it being based upon a common assumption that its future performance by the Participants would only be required if the Native Title Application by the KM People was successful as to some part of the land on which activities for the Project were to be undertaken.

64    Second, the KM Compensation Deed did not identify any particular part of the Agreement Area that had significance over any other part. In particular, it did not identify any part of the Agreement Area to which the Activities for the Project would be confined. It applied in the same way to every part of the Agreement Area.

65    Third, the KM Compensation Deed (considered in the context of the ILUAs) provided expressly for approval for activities on the Agreement Area that did not form part of the Project and for ongoing consultation with the KM People in respect of activities that were not being undertaken for the purposes of the Project. It also provided for ongoing consultation as to interests of the KM People that were not native title interests.

66    Fourth, by reason of (a) the competing claims by the KM People and the YM People to the Overlap Area at the time of entry into the KM Compensation Deed; (b) the extent of the Overlap Area; and (c) the fact that the Tenement Area was wholly within the Overlap Area, it was obvious that there was the possibility that the Native Title Application brought by the authorised applicants for the KM People may be determined on the basis that the YM People were the native title holders for all of the land on which the Activities for the Project were to be carried out. At the time of entry into the KM Compensation Deed, the Participants entered into deeds in substantially the same terms with the registered applicants for the Native Title Applications brought on behalf of each of the YM People and the WGTO People. At that time the Overlap Area was the subject of competing claims. Self-evidently, there was the possibility that the native title claims by one or other of the KM People or the YM People to some or all of the Overlap Area may not succeed. Yet, the KM Compensation Deed made no provision for that obvious possibility thereby indicating that it was the intention of the parties that its terms would apply irrespective of the outcome of the Native Title Applications.

67    Fifth, the KM Compensation Deed expressly addressed the circumstances that may unfold in respect of the Native Title Applications but only provided for mechanisms by which the terms of the KM Compensation Deed would remain binding. Again, the terms in which those provisions were expressed are contrary to an assumption by the parties that there may be some types of outcomes of the Native Title Application by the KM People that were assumed by the parties to be circumstances in which the ongoing performance of its terms would not be required.

68    Sixth, the terms of the KM Compensation Deed do not provide a basis to conclude that the compensation was only payable if the past authority to give approval which arose from the procedural rights of the authorised applicants for the Native Title Application by the KM People was succeeded by a co-extensive authority to give approval as the holder of a determined native title interest.

69    Seventh, contrary to the submissions for the Participants, there are ongoing benefits from the terms of the KM Compensation Deed to the Participants for the conduct of the Project. Also, relevant provisions are expressed to operate for the benefit of the State of Western Australia as well as the Participants.

70    Eighth, the submissions for the Participants that there are major parts of the KM Compensation Deed that are unable to be performed should not be accepted.

71    Each of the above propositions is evident from the terms of the KM Compensation Deed when considered in context. Those provisions are considered in detail below under the heading 'The detail of the terms of the KM Compensation Deed'.

72    In addition, to the extent that the submissions for the Participants sought to characterise what had occurred in relation to the Native Title Application by the KM People as a 'voluntary withdrawal' of their native title claim, they were misconceived. Properly understood the manner in which those competing claims were resolved reflected the nature of the procedure required to be followed by the terms of the Native Title Act. Therefore, even if (contrary to the above) there was some respect in which the KM Compensation Deed may be said to have been based upon the KM People not voluntarily withdrawing their claim to native title in respect of most of the Agreement Area, the occurrence of an event of that kind has not been demonstrated. This aspect is addressed in more detail below under the heading 'The alleged 'voluntary withdrawal' by the KM People'.

The detail of the terms of the KM Compensation Deed

73    The submissions for the Participants did not address the detail of the terms of the KM Compensation Deed. They did not seek to demonstrate from a consideration of those terms as a whole how it might be said that the withdrawal by the KM People of their native title claim boundary so that it did not cover any part of the area on which the Project was to be undertaken was an event that resulted in a 'radically different situation' than that which was contemplated by the parties when they entered into the deed. Instead, a more generalised submission was advanced that the limited extent to which the KM People had been determined to be common law holders meant that the KM Compensation Deed 'cannot operate as originally intended'. It was a claim that focussed upon a contention that, by reason of the outcome of the Native Title Application by the KM People, they could not grant any future native title or heritage approvals that the Participants may require and a submission that certain provisions cannot apply. It also asserted that the KM Compensation Deed was 'premised' on KM People asserting that they hold 'primary rights' over the areas in which the Participants were to conduct the Project.

74    These submissions find no foundation in the terms of the KM Compensation Deed. As is explained below, regard to the terms of the KM Compensation Deed reveals that the submissions by the Participants as to the character of the deed are not supported by regard to the detail of its terms.

75    The background to the KM Compensation Deed refers both to the 'Project Titles and Mardie Station'. The defined term 'Project Titles' refers to all of the tenements for the Project (existing and pending) as well as the pastoral lease for Mardie Station. Therefore, the deed is not confined to the Tenement Area or to the process for obtaining consents to the grant of the tenements required to commence the Project. It is expressly concerned with the whole of the Agreement Area and specifically, the area of the pastoral lease for Mardie Station. The defined term 'Mardie Station' refers to 'the pastoral station operated by [one of the Participants]'.

76    The term 'Project Titles' is defined to further include future titles and replacement titles. That is to say, the recitals in the background to the deed invoke defined terms which contemplate the possibility of further consents to the grant of tenements being required at some future time.

77    There is a further recital that:

The Project Titles and Mardie Station are located within the boundaries of 3 registered Native Title Applications.

78    The background then recites that the parties have entered into the ILUAs 'for the purpose of allowing the Project to proceed according to its schedule'. Then it recites that the Participants 'wish to share the benefits of the Project with the KM People and other Indigenous people, and ensure that they are appropriately compensated for the effect of the Project on native tile and TO Rights, through the Benefits provided under this Deed'. These statements are unqualified. They certainly do not manifest an intention that the sharing of the benefits depends upon some particular outcome to the Native Title Application by the KM People. The recital as to compensation is not confined to native title rights. Further, the reference to sharing the benefits of the Project manifests a broader intention than simply compensating the KM People for allowing the Project to proceed. It points to an ongoing relationship by which the benefits of the Project will be shared into the future.

79    The background to the KM Compensation Deed then states:

In consideration for the KM Parties entering into [the ILUAs], and in order to provide the Benefits referred to …, [the Participants] have agreed to provide the Benefits to the KM Parties.

80    Significantly, the recitals do not identify a particular area where the Project is to be undertaken. Rather, they refer to an area that includes the whole of the pastoral lease for Mardie Station. Equally significantly, they refer to both native title rights and to 'TO Rights'. As has been mentioned, TO Rights are very broadly defined and extend well beyond those rights and interests that might be the subject of a determination of native title. These aspects of the background run counter to the Participant's claims that there was a common assumption as to the extent of claimed or determined native title rights as to some part of the area that was required to conduct the activities for the Project that was significant for the benefits to be provided (including the compensation by way of annual payments). Rather, the recitals indicate that the terms of the deed were to apply to the whole area covered by the pastoral lease for Mardie Station, and to do so in respect of native title and TO Rights.

81    In addition, the recitals indicate that the compensation was provided for purposes that extended well beyond securing the approvals to be able to conduct the Project or to compensate the holders of native title interests for the activities to be conducted as part of the Project on a particular part of the pastoral lease for Mardie Station. They refer to a sharing of the benefits of the Project. They also refer to compensation for TO Rights.

82    As has been mentioned, the term 'Activity' is used in the body of the KM Compensation Deed. It is defined as:

all activities the [Participants] are entitled to carry out on the land in the Agreement Area under the Principal Acts, this Deed, the Consent Agreements, the Project Agreements, and under the terms and conditions of the Project Titles, and includes both ground disturbing activities and non ground disturbing activities carried out under the relevant Project Title.

83    The Agreement Area is defined as the area of land and waters comprised within the granted and pending tenements, the pastoral lease for Mardie Station and an adjacent offshore area. The reference to 'Project Titles' includes the pastoral lease for Mardie Station.

84    Therefore, the term Activities is not confined to some identified part of the Agreement Area such as the Tenement Area. It includes the whole of the area the subject of the pastoral lease and it includes all activities that might be undertaken for the Project. So, it includes activities that might be undertaken for the purposes of the Project on any part of the pastoral lease. Examples given in the course of submissions were the construction of roads or the use of areas for tailings storage. Further, on the face of the definition, it is not confined to mining activities and extends to activities undertaken for the purposes of the pastoral station operated on the pastoral lease (being a Project Title), but a submission to that effect was not advanced by the RRK Claimants.

85    The operative provisions of the KM Compensation Deed begin with a statement that the parties have developed a positive relationship in the course of negotiations 'and wish to maintain and develop that relationship as they work together in relation to the Project': cl 2.1(a). Amongst other things, they agree that the deed is based on 'mutual collaboration with the common objective being the long term operation of the Project' and 'compensating KM People and enhancing the KM People's participation and benefit from the Project': cl 2.1(d)(3) and (4). Again, the reference to compensation is expressed much more broadly than compensation for consents given by parties with a claimed or determined native title interest in land upon which mining operations are to be conducted as part of the Project.

86    The KM Compensation Deed also deals with the fact that individual KM People may also be YM People or WGTO People. It provides that an individual person 'is only entitled to obtain Benefits under one of the three Compensation Agreements': cl 2.4(a). However, it reserves to the KM Parties the discretion to expressly permit a person to obtain benefits under two or more Compensation Agreements. There is also a provision to the effect that there will be no disadvantage in entering into the KM Compensation Deed and the ILUAs before other registered native title claim groups and a covenant to confer the same benefits on each of the three groups of peoples: cl 2.5. These provisions indicate an intention on the part of the Participants to provide an overall comprehensive package of equal compensation for the benefit of the three groups of people irrespective of the outcome of the Native Title Applications.

87    The KM Compensation Deed provides that it starts when the relevant agreements (compensation deeds and the ILUAs) have been signed by the three groups and written approval from the board of one of the Participants and its project financiers has been received and ends when the term of the last of the Project Titles (including any renewals) has expired: cl 3.1. That is to say, it continues for as long as the Participants hold interests in the tenements or the pastoral lease. Expressed in that way, it indicates that it is intended to apply in all circumstances that may pertain over a very long period of time. There is no suggestion in the language used that the obligations to pay compensation are tied to some particular aspect of the comprehensive terms continuing to apply or that the term may come to an end based upon the outcome of the Native Title Applications.

88    There is an express power for the Participants to terminate the deed if the Project is abandoned: cl 3.2(a) and (b). It also allows the KM Parties to invoke a procedure for termination 'before the commencement of Annual Payments' if they consider that the Project has been abandoned: cl 3.2(c) to (n). The deed provides expressly that if it is terminated for abandonment then its terms have full force and effect up until that termination and the terms of the deed otherwise cease to have force and effect: cl 3.2(o). The deed also terminates if for any reason the ILUAs are terminated: cl 3.2(p). These detailed provisions indicate that the parties considered the future circumstances in which the KM Compensation Deed would not be performed. Despite the obvious possibility that the KM Parties may not be determined to be the holders of native title over much of the Agreement Area, there was no express provision for termination in that event. The absence of such a provision suggests that there were ongoing benefits to the Participants in the observance by the KM Parties of the covenants in the deed even if they were not determined to hold native title over much or all of the Agreement Area. Those benefits are evident from the following consideration of the substantive terms of the KM Compensation Deed.

89    The KM Compensation Deed provides for milestone payments and annual payments. There are conditions which must be met in order for the Participants to be obliged to make the annual payments. However, the obligation of the Participants to make each of those payments is not conditioned upon the KM Parties being determined to be native title parties over some part of the Agreement Area (or some part of that area that is now said to be significant for the Project). Rather, the conditions are expressed as follows (cl 5.2(d) to (f)):

The Annual Payments are conditional upon satisfaction of the milestone events set out at clauses 5.1(c), 5.1(d), and 5.1(f) other than sub-clause 5.1(d)(1) and 5.1 (d)(2).

Subject to clauses 5.6, 14.2, and 14.3, the [Participants] will during the Payment Term make the Annual Payments, including any Additional Payments.

The KM Parties' entitlement to payment under this Deed is in consideration of the continued compliance of the KM Parties with the terms of this Deed, ILUA1 and ILUA2.

90    The milestone events do not include any particular outcome in relation to the Native Title Application by the KM People. This is significant given the extent of detail as to the milestone events and the extent to which their occurrence may affect entitlements to payments under the KM Compensation Deed, including the annual payments.

91    There is provision for the suspension of the payment of the annual payments for the duration of a 'Project Suspension Event' which is defined as an event which causes a suspension of the shipment of concentrate from the Project for a specified period (cl 5.6).

92    The Participants agree to consult with the 'KM Parties' in relation to the implementation and amendment of 'Protocols' in relation to 'Aboriginal cultural heritage' and any other matters agreed between the parties. The Protocols as at the date of the KM Compensation Deed are included as schedules. Schedule 4 to the deed is a 'Cultural Heritage Protocol'. It specifies the manner in which the Participants will conduct 'Surveys' it undertakes with KM People in the Agreement Area (cl 3(a)(1)). A Survey is an archaeological or ethnographic survey as described in the Protocol. It also deals with the manner in which the Participants will undertake consultations in relation to s 18 Notices in the Agreement Area (cl 3(a)(2)). Those notices seek Ministerial consent under the legislative provisions concerned with Aboriginal heritage.

93    The Protocol states (cl 3(c)) that:

In planning, constructing and operating the Project, the Community Engagement Programme and Major Mardie Infrastructure within the Agreement Area, the [Participants] will seek to avoid interfering with Aboriginal Sites so far as it is reasonably practicable to do so.

94    Significantly for present purposes, the provision is not confined to matters concerned with the Project. It also applies to planning, constructing and operating the Community Engagement Programme and 'Major Mardie Infrastructure'. The latter is defined in the Protocol as 'major, permanent buildings connected with the operation of Mardie Station, such as a new homestead'. Plainly, construction of that kind is unrelated to the mining and related activities to be undertaken as part of the Project.

95    The term 'Community Engagement Programme' is defined in the Second ILUA as the Participant's programme of engagement with the Native Title Parties (which includes the authorised applicants for the claim by the KM People). As has been explained, the Second ILUA includes an express approval for any activities conducted by the Participants within the boundaries of the pastoral lease for Mardie Station as part of its Community Engagement Programme 'such as tourism ventures and a prisoner release facility'. Therefore, it was within the express contemplation of the parties that the Participants may conduct activities that did not form part of the Project within the boundaries of the Agreement Area and the terms of the Protocol would apply to those activities. In the context of the recitals to the KM Compensation Deed about sharing the benefits of the Project with the KM People, these provisions are inconsistent with a common assumption of the kind contended for by the Participants.

96    There is further express reference in the Protocol to the conduct of a Survey by the Participants for ground disturbing works within the Agreement Area 'for the purposes of planning, constructing or operating the Project, the Community Engagement Programme or Major Mardie Infrastructure' (if outside a part where such surveys had been undertaken): cl 6.1.

97    The KM Compensation Deed provides for the establishment of a 'Relationship Committee' with three members from the Participants and four members from the KM People: cl 7.1(a). It must meet four times a year for the first five years after the commencement of the deed: cl 7.3. The functions of the committee are (cl 7.4):

(a)    review the operation of this Deed;

(b)    discuss employment, training and development opportunities with the [Participants] and the [joint venture for the Project];

(c)    discuss business opportunities which will be available through the [joint venture for the Project];

(d)    discuss matters of cultural heritage, to the extent that the KM People who are members of the KM Relationship Committee are able to do so;

(e)    discuss environmental matters, including compliance with and amendments to any environmental approvals and management plans pursuant to those approvals; and

(f)    discuss any issues concerning access to the Agreement Area.

98    These functions are not confined to dealing with native title interests. They are functions that can be caried out if people other than the KM People are determined to be the holders of native title for much or all of the Agreement Area. They are functions that can be carried out in respect of TO Rights other than native title rights, particularly rights under Aboriginal law and custom that may not be native title rights and interests. They are provisions which, on their terms, may have ongoing application irrespective of the outcome of the Native Title Application by the KM People. Their unqualified inclusion in the deed supports the conclusion that there was no common assumption of the kind contended for by the Participants.

99    There is also a provision as to what is to happen on the closure of the mine on the Lease Area. It is in the following terms (cl 7.5):

On the permanent closure of the mine …, the [Participants] will use their reasonable endeavo[u]rs to facilitate the KM Parties’ assessment of business opportunities to the benefit of the KM People.

100    There are further provisions in the deed as to employment, training and contracting that are for the benefit of KM People (cl 8). They are expressed to relate from years four to thirteen of the period in which payments are to be made to the KM People under the terms of the KM Compensation Deed. Amongst other things, they require the joint venture for the Project to provide 10 full-time employment positions and three traineeship positions. There is also an express provision (cl 8.4(c)) to the effect that the Participants will use their best endeavours to ensure that the joint venture for the Project 'will implement and maintain an indigenous employment programme to assist KM People and other indigenous people whom it employs to remain in the workforce and meet job requirements'. There is a provision for the performance of these obligations by the Participants to be audited at the request of the KM People (cl 8.7).

101    On the Participant's case these unqualified provisions should be read as being subject to a common assumption that they would not apply if the Native Title Application was only upheld as to a limited part of the Agreement Area or if there was a voluntary relinquishment of most of the claim to native title in respect of the Agreement Area of a kind that is said to have occurred when the native title claims over the Agreement Area were determined. Again, neither the terms in which the obligations are expressed nor their subject matter indicate any such common assumption.

102    Significantly for present purposes, the KM Compensation Deed includes the following provisions as to cultural awareness training (cl 9):

(a)    The [Participants] will provide a Cultural Awareness Training Course to the [Participants'] employees, agents and contractors who are based at the Project site for an aggregate of more than 3 months in any calendar year, within 4 months or such longer period as is reasonably required of that persons' commencement date.

(b)    Subject to clause 9(c), the [Participants] will work with the KM Parties and the Other Registered Claim Groups in relation to the development and delivery of a Cultural Awareness Training Course and will use its best endeavours to ensure that the KM People and the Other Registered Claim Groups would each be involved in providing approximately one third of the cultural awareness training.

(c)    If native title is determined to exist in the Agreement Area, the [Participants] will use its best endeavours to ensure that the determined native title holders are involved in providing the Cultural Awareness Training Course.

(d)    The [Participants] must provide reasonable remuneration, consistent with industry standards, to KM People involved in providing cultural awareness training under this clause 9.

(emphasis added)

103    The emphasised words indicate that the parties have expressly considered what should occur once the outcome of the determination of the Native Title Applications is known. In that event, it is the determined native title holders that are to be involved in providing the cultural awareness training. The express agreement in cl 9 further supports the case advanced by the RRK Claimants for the KM People, namely that the assumption of the parties is that the other obligations would continue to apply irrespective of the outcome of the Native Title Applications (and would certainly apply if, as is the case, the KM People have been determined to hold native title as to part, albeit a small part, of the Agreement Area and therefore, by the express terms of cl 9(c) must be involved in providing the cultural awareness training).

104    Next, the agreement acknowledges that, provided the Participants observe the Cultural Heritage Protocol, under the Second ILUA the 'KM Parties' have agreed that they will not object to the grant, issue or renewal of approvals for the Project (cl 10(a)) and they will not oppose s 18 Notices issued in relation to the Project or seek declarations in relation to Aboriginal heritage under various statutes (cl 10(b)). These matters are not confined to claims based upon native title rights. On the Participants' case, even though these (and other key provisions) are expressed to apply much more broadly than to claims based upon native title rights, nevertheless the common assumption was that they would no longer have to be performed by the 'KM Parties' if they were determined to hold native title in a small area outside where the Project operations were to be undertaken or after any 'voluntary withdrawal' of native title claims to much of the Agreement Area. Given the breadth in which these key provisions are expressed they are inconsistent with the Participants' claim of frustration. They are all expressed to relate to TO Rights (defined in the same manner as in the Second ILUA). As has been explained, that is a definition which extends beyond native title rights (claimed or determined) and expressly includes all other rights and interests of traditional owners.

105    The provisions are also all expressed in unqualified terms to apply to Activities in the Agreement Area. As has been explained, the definition of Activities includes activities carried out under the terms of the pastoral lease for Mardie Station. Although the case for the RRK Claimants did not rely upon that aspect, it did rely upon the terms of the Cultural Heritage Protocol which was to that effect. It also relied upon the broad terms of all the relevant provisions in the KM Compensation Deed.

106    Other provisions of the KM Compensation Deed that relate to claims, rights and interests of the KM People that are expressed in broad terms by reference to TO Rights and Project Titles include:

(1)    the provision by which the KM Parties and KM People acknowledge and agree that the compensation is in full and final satisfaction of any obligation by the Participants, the holder of any Project Title or the State of Western Australia to pay compensation to the KM Parties or the KM People arising out of or in connection with the grant, renewal or operation of the Project and the conduct of Activities in the Agreement Area and the effect of those matters on TO Rights (cl 11(a));

(2)    a release and discharge by the KM Parties and KM People as to those same matters (cl 11(b));

(3)    a covenant that neither the KM Parties nor the KM People will sue the Participants as to those matters, whether under the ILUAs or the KM Compensation Deed (cl 13.1); and

(4)    a covenant that the KM Compensation Deed may be pleaded in bar, or by way of indemnity or set-off if any member of the KM Parties or the KM People makes a claim in their capacity as a member of the KM People (cl 13.2).

107    As with the Second ILUA, there is a warranty by the authorised applicant for the Native Title Application by the KM People that 'to the best of its knowledge and belief':

the KM People hold or may hold native title and the Traditional Rights in the Agreement Area [sic].

(emphasis added)

108    As has been mentioned, those terms may be contrasted with the warranties agreed to by the authorised applicants for each of the YM People and the WGTO People (as expressed in the Second ILUA) which was to the effect that they hold Traditional Rights and native title in the Agreement Area. There is no foothold in the warranty given by the KM People in the KM Compensation Deed (and the Second ILUA) for the claim that the YM People and the Participants entered into the deed on the basis of some certain expectation as to the outcome of the then pending application for a determination of native title over land that included the Overlap Area.

109    A warranty was also given (to the best of information and belief) that 'no persons other than the KM People, the YM People and the WGTO People hold or may hold native title in the Agreement Area' (cl 15.3). As has been mentioned, a warranty in those terms is consistent with the comprehensive character of the instrument. It seeks to establish that there are no others beyond those who have entered into the Second ILUA who have any claim as traditional owners.

110    The KM Compensation Deed has a provision that deals with future eventualities in respect of the Native Title Applications, being cl 16. It is in the following terms:

16.1    Combination of claims

If for any reason the Consent Agreements are not registered as ILUAs, then if the Native Title Party combines the Native Title Application with any other Native Title Claim or any new or replacement claim is lodged by the members of the KM People within the Agreement Area, or the Native Title Party intends to amend the Native Title Application by adding or removing any registered applicants to or from the Native Title Claim then the Native Title Party must:

(a)    give prior written Notice of the proposed change in the status of the Native Title Application to the [Participants];

(b)    if requested by the [Participants]:

(1)    assign their rights under this Deed to the registered applicants under the new Native Title Claim; and

(2)    procure that the Registered Applicants under the new Native Title Claim execute, and deliver to the Project Participants, a deed of assignment and assumption by which they assume the Native Title Party's obligations under this Deed with the prior written consent of the Project Participants.

16.2    Successful determination - assignment to prescribed body corporate

(a)    if there is a determination under the NTA:

(1)    that the Native Title Party holds native title in the claim area; and

(2)    that the native title rights are held in trust by a prescribed body corporate under s 56 of the NTA,

then the Native Title Party may assign its rights and obligations under this Deed to the prescribed body corporate.

(b)    If the Native Title Party assigns its rights and obligations under this Deed to a prescribed body corporate under clause 16.2(a) then the prescribed body corporate will be entitled to exercise all the powers, rights and benefits of the Native Title Party under this Deed and will become obliged to observe and perform all obligations of the Native Title Party under this Deed.

16.3    Unsuccessful determination

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

111    Equivalent provisions were included in the compensation deeds entered into with the YM People and WGTO People. They are also to be found in the First ILUA and the Second ILUA (save, significantly, for cl 16.3).

112    For present purposes, the following aspects of the clause as included in each of the compensation deeds assume significance:

(1)    its terms are premised upon a recognition that the Native Title Applications are competing claims;

(2)    it provides a mechanism by which the Participants may require any people who are added to the Native Title Applications by 'any new or replacement claim' to be brought within the terms of the compensation deeds. That is to say, it ensures that the compensation deeds remain comprehensive;

(3)    it does not include any mechanism by which the outcome of the Native Title Applications may affect the entitlement to any of the benefits agreed to be provided under the terms of the KM Compensation Deed (being obligations assumed by the Participants under the First ILUA and the Second ILUA); and

(4)    it provides for a mechanism by which the rights under one compensation deed may be assigned by one group to another group in the event that there is a determination under the Native Title Act that 'one or more of the Native Title Parties holds native title in the claim area', but does not require any such assignment.

113    Accordingly, the parties directed their attention to what may occur in the future in respect of the outcome of the Native Title Applications. They recognised that there may be changes to those applications and that one or more may succeed. Yet, they made no provision that the obligations to pay compensation may come to an end if there was a particular kind of outcome (such as where the application only resulted in a determination of native title in favour of a particular group as to a small part of the Agreement Area). On the contrary, the KM Compensation Deed provided expressly for the possible assignment of the rights and obligations under the compensation deed of one group to another group. Necessarily implicit in a provision of that kind is that the rights and obligations under each of the compensation deeds would continue irrespective of the outcome of the Native Title Applications. Further, that it was a matter for each group (relevantly in the present case the KM People) as to whether they would enter into any such assignment.

114    Therefore, the frustration claim finds no support in the detailed terms of the KM Compensation Deed. On the contrary, due regard to the detailed terms of the KM Compensation Deed considered in the context of the other instruments entered into by the Participants (and expressly contemplated by the terms of the KM Compensation Deed) manifests an intention that its terms would continue to apply irrespective of the outcome of the Native Title Application by the KM People.

115    The Participants relied upon a number of provisions in the KM Compensation Deed that were said to be 'unworkable' having regard to the outcome of the Native Title Application by the KM People. For reasons that have been given, the submission finds no support in the terms of the KM Compensation Deed.

116    It follows that there is no significance to be given to whether the consent by the YM People to the exercise by the KM People of 'secondary rights' that formed part of the determination of the native title rights and interests of the YM People in land that included the Overlap Area might be a sufficient basis for concluding that the KM Compensation Deed has not been frustrated. Even if no provision had been made in the determination of the Native Title Application by the YM People as to those 'secondary rights' then, for reasons that have been given, the KM Compensation Deed would not have been frustrated.

117    Finally, as I have observed, the KM Compensation Deed contains a number of provisions that are expressed to be for the benefit of the State of Western Australia. For completeness, I note that if I had been inclined to the view that there was merit in the Participant's frustration case then I would have required further submissions as to whether the State of Western Australia should be heard before the grant of any relief.

The alleged 'voluntary withdrawal' by the KM People

118    The frustration case by the Participants rested, in part, upon a submission that the outcome of the Native Title Application brought by the KM People had resulted from some form of voluntary withdrawal by the KM People of their claim. It was said to be a voluntary withdrawal that was inconsistent with the existence of a native title claim of a kind on which the KM Compensation Deed was premised.

119    If I had accepted the existence of a common assumption of the kind alleged by the Participants that included the absence of a voluntary withdrawal of the Native Title Application by the KM People, then, for the following reasons, I would not have been persuaded that there had been any form of 'voluntary withdrawal' of the kind submitted by the Participants. Therefore, to the extent that the frustration case depended upon a contention that there had been some form of voluntary withdrawal by the KM People of their Native Title Application then it would have failed for that additional reason.

120    I deal below with the circumstances in which the KM People came to amend their Native Title Application. On the evidence, the KM People did agree to amend their application to reduce the area the subject of their claim to a determination of native title. They did so as part of a process by which the competing claims to native title in respect of land in the Agreement Area and surrounding areas were resolved. As is explained below in dealing with Issue (2), the KM People did not simply withdraw their claim. Rather, as part of negotiations to reach agreement as to the nature and extent of customary rights and interests in the Overlap Area, it was accepted that it was appropriate for the apical ancestors for the claim by the YM People to be expanded in a manner that would include some of the members of the KM People. Also, it was agreed that the YM People would give a form of consent by which all KM People could undertake certain types of activities in the Overlap Area. It was on the basis of those matters that the Native Title Application by the KM People was amended. Significantly, as explained below, those matters resulted in some of the KM People (as defined in the KM Compensation Deed) being determined to be the holders of native title interests in the Overlap Area and also in all other KM People being permitted to undertake activities in the Overlap Area. Therefore, it was not the case that the resolution of the native title claims to the Overlap Area resulted in the KM People having no interest in that area. At most, it might be said that the resolution meant that many (but not all) of the KM People were not included in those people determined to have native title in the Overlap Area.

121    In those circumstances, it is not appropriate to regard the amendment of the Native Title Application by the KM People as if it was some form of abandonment of any claim. Applications for the determination of the nature and extent of native title interests have unique characteristics. As I explained in The Nyamal Palyku Proceeding (No 7) [2023] FCA 528; (2023) 296 FCR 169, the Native Title Act is an exceptional piece of legislation. It establishes a special procedure by which native title claims are to be determined. That procedure encourages conciliation and agreement: at [106]. It elevates mediation and agreement to be the preferred means for the resolution of controversies as to the existence of native title and requires all those involved to act accordingly: at [107]. A determination by mediated outcome will provide the basis for a consent determination with the support of the State which does not require proof on the balance of probabilities: at [102]. Further, there is an obligation to undertake sincere efforts at resolution of native title claims as part of the special procedure established by the Native Title Act for the just and proper ascertainment of native title rights: at [110]. It is not uncommon for those procedures to result in resolution on terms that recognise that the holders of native title rights and interests for an area have obligations to allow access to others for ceremonial or other purposes and sites within an area may have cultural significance for groups of people beyond those who are the native title holders.

122    Having regard to the nature of native title applications and the process for their resolution it is not possible to infer from the fact that the Native Title Application by the KM People was amended by reducing the area the subject of the claim on the basis of changes to the Native Title Application by the YM People (including the express recognition of the 'secondary rights') that the KM People made some form of voluntary concession that they had no basis to make a claim or there was some respect in which the KM People lacked any interest in the Overlap Area.

Reliance upon Supreme Court decision concerning the WGTO Compensation Deed

123    There is one final matter to be considered in relation to the frustration claim.

124    In 2019, the Supreme Court of Western Australia determined that the compensation deed between the Participants and the WGTO People (which was on terms substantially similar to the KM Compensation Deed) was discharged by a frustrating event: Thaluntha Pty Ltd v Citic Pacific Mining Management Pty Ltd [2019] WASC 196. The event was described as 'the dismissal of the native title application made on behalf of the people said to be "Wong Goo Tt Oo People", and subsequent deregistration of the native title claimant group': at [1]. Relevantly for present purposes, Smith J reasoned 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.

125    Plainly, the outcome in Thaluntha rested upon two matters, namely the fact that the native title application by the WGTO People had been dismissed and the fact that there was no 'Native Title Party'. Neither of these aspects pertain in the present case. Otherwise, as to matters of principle, the reasoning accords with the summary I have already provided: Thaluntha at [95]-[108].

126    Therefore, there is no respect in which the reasoning in the case decides any point of principle of application to the present case. Further, the present case involves parties who were not joined to the proceedings the subject of the reasons in Thaluntha.

127    In certain respects, the case advanced by the RRK Claimants diverged from the case that appears to have been advanced by the WGTO People as to the proper construction of terms of the WGTO Compensation Deed that find equivalent expression in the KM Compensation Deed. However, in these proceedings I must decide the proper construction of a different instrument based upon the competing contentions advanced by the present parties. No submission was put to the contrary.

128    For those reasons the decision in Thaluntha provides no support for reaching a different conclusion on Issue (1) to that which I have set out above.

Issue (2): If the KM Compensation Deed has not been frustrated, are the rights to the payment of annual payments under the terms of that deed to be received by KM People on trust for YM People?

129    As has been mentioned, WAC claims that the annual payments to be received by the KM People under the terms of the KM Compensation Deed are to be received by them as trustees for the YM People. The claim by WAC depends upon the terms of cl 11.1 of the 2018 Deed. It was entered into between (a) RRK Corporation (then known as Kuruma Marthundunera Aboriginal Corporation RNTBC) as trustee for 'the Robe River Kurrama People'; (b) WAC as trustee for the 'Mardudhunera People'); and (c) Yamatji Marlpa Aboriginal Corporation (a body required to be a party by the terms of s 24CD(2)(c) of the Native Title Act).

130    The terminology in the 2018 Deed reflects developments that had occurred by that time in relation to the Native Title Applications brought by the KM People and the YM People. Those developments are explained in the recitals to the 2018 Deed. They include reference to the following:

(1)    there had been an application for native title on behalf of the KM People (KM Claim);

(2)    the KM Claim had been determined and the native title rights and interests as determined were held by RRK Corporation for people now known as the Robe River Kuruma People;

(3)    there had been an application for native title on behalf of the YM People (YM Claim);

(4)    the YM Claim had been determined and the native title rights and interests as determined were held by WAC for people now known as the Mardudhunera People;

(5)    the KM Claim and the YM Claim had overlapped as to the Overlap Area;

(6)    in 2013, the KM People and the YM People had reached agreement and had entered into the 2013 Deed. Later, in order to have parts of the 2013 Deed registered as an ILUA they entered into the 2014 Deed which was registered;

(7)    after entry into the 2013 Deed (and as agreed by its terms), the boundary of the KM Claim was reduced so that it no longer included the Overlap Area;

(8)    a few months later (also as agreed by the terms of the 2013 Deed), the claim group for the YM Claim was amended to incorporate additional apical ancestors (with the consequence that some members of the KM Claim group were also members of the YM Claim group); and

(9)    there were further negotiations between the KM people and the YM People in late 2017 and early 2018, regarding the determination of the YM Claim by consent and as a result of those negotiations the parties agreed to replace the 2013 Deed and the 2014 Deed with the terms of the 2018 Deed.

131    Recital I to the 2018 Deed then described its purpose in the following terms:

The purpose of this deed is to:

a.    confirm the Robe River Kuruma People and the Mardudhunera People hold native title rights and interests in their respective areas;

b.    specify the interests that Robe River Kuruma People and Mardudhunera People have in the country with which they primarily identify and in the country with which they have a secondary connection; and

c.    formalise arrangements and deeds in relation to future acts in the areas of the Robe River Kuruma Determinations and YM Determination.

132    The 2018 Deed uses the terms KM People and YM People to refer to the people who were members of the claim groups for the KM Claim and the YM Claim respectively. It uses the separately defined term Mardudhunera People to mean those people who are common law holders under the determination of the 'Mardudhunera Determination' (which appears to be a reference common law holders under the determination of the YM Claim: see the defined term 'YM Determination' and the absence of any definition of the capitalised term 'Mardudhunera Determination'). It also uses another defined term, Robe River Kuruma People, to refer to those people who have been determined to be holders of native title under the determination of the KM Claim. The 2018 Deed also has provisions whereby a KM Person, Mardudhunera Person or Robe River Kuruma Person is a reference to a person who is a member of the respective group of that name as defined.

133    A number of different areas are also defined by the 2018 Deed. It refers to the whole of the land and waters within the boundaries of the KM Claim and the YM Claim as the Agreement Area. The 2018 Deed is expressed to be an ILUA for the whole of that Agreement Area which extends well beyond the boundaries of the 'Agreement Area' to which the YM Compensation Deed and other instruments entered into with the Participants applies. It also uses the term KM Country to refer to the areas the subject of the KM Claim immediately before the determination of the claim on 1 November 2016 (that is at a point in time that is long after the KM Claim had been amended to remove the Overlap Area). Therefore, KM Country excludes the Overlap Area but otherwise includes all of the land the subject of the KM Claim. The 2018 Deed uses the term Mardudhunera Country to refer to all the country within the boundaries of the YM Claim. Therefore, Mardudhunera Country includes the Overlap Area. Significantly, these terms refer to the claimed areas, not the determined areas.

134    Clause 11.1 is in the following terms:

(1)    Each Robe River Kuruma Person and each Mardudhunera Person:

(a)    shall only have rights to benefit from compensation and other forms of monetary benefits under Existing Future Act Agreements which relate to the KM Country or Mardudhunera Country for which they are a Primary Common Law Holder; and

(b)    shall not seek compensation or other forms of monetary benefits under Existing Future Act Agreements which relate to KM Country or Mardudhunera Country for which they are a Secondary Common Law Holder, unless otherwise agreed by the Primary Common Law Holders for that area.

(2)    To avoid doubt, an Existing Future Act Agreement will relate either to KM Country or Mardudhunera Country as those exist at the Execution Date regardless of whether or not the Existing Future Act Agreement relates to the Overlap Area.

(3)    The Robe River Kuruma People and the Mardudhunera People shall, if requested by the other, do all things reasonably necessary to overcome any obstacles that may arise under an Existing Future Act Agreement and/or an existing trust arrangement in implementing this clause 11.1, including if necessary consenting in writing to the variation of an Existing Future Act Agreement or trust arrangement.

135    Clause 11 then goes on to provide for what is to occur in the case of a 'New Future Act Agreement outside the Overlap Area' (cl 11.2) and in the case of a 'New Future Act Agreement inside the Overlap Area' (cl 11.3).

136    As to future acts outside the Overlap Area, the deed provides that each Robe River Kuruma Person and each Mardudhunera Person shall only have rights to benefit from compensation and other benefits under agreements 'which relate to KM Country or Mardudhunera Country for which they are a Primary Common Law Holder' and shall not seek compensation under agreements which relate to such country for which they are a 'Secondary Common Law Holder' unless otherwise agreed by the Primary Common Law Holders for that area.

137    The way in which Primary Common Law Holders and Secondary Common Law Holders are to be identified is described in cl 8.1. It provides that, subject to its terms, a person may identify as a Robe River Kuruma Person or a Mardudhunera Person or both. The clause then provides for the way in which each person must identify primarily as either one or the other. It also identifies those persons who are Primary Common Law Holders and Secondary Common Law Holders for each of KM Country and Mardudhunera Country.

138    As to future acts 'wholly or partly inside the Overlap Area', the 2018 Deed provides that WAC must not enter into certain types of agreements without first obtaining the consent of RRK Corporation, which consent will not be unreasonably withheld. Further, it provides that compensation and other forms of monetary benefits derived from the Overlap Area under all New Future Act Agreements 'will be shared equally' between Robe River Kuruma People and Mardudhunera People.

139    These provisions give ongoing significance to the Overlap Area as between the two groups despite the fact that, by the time of the 2018 Deed, it is the Mardudhunera People who have been determined to hold native title in the whole of the Overlap Area.

140    As has been mentioned, outside the Overlap Area a person must be a Primary Common Law Holder in order to receive benefits and compensation under New Future Act Agreements which 'relate to KM Country or Mardudhunera Country'.

141    Therefore, it is evident from the terms of cl 11.2 and cl 11.3 that the parties do not intend for Mardudhunera People to be the only people entitled to compensation and other forms of monetary benefits in respect of new future acts in the Overlap Area (which has been determined to be country in respect of which only Mardudhunera People hold native title rights and interests). Rather, they intend any such compensation and monetary benefits to be shared equally between the two people groups.

142    Nevertheless, WAC claims that cl 11.1 should be construed in a manner that would require all compensation to be paid by the Participants under the terms of the KM Compensation Deed to be paid to Mardudhunera People.

143    In the 2018 Deed:

'Existing Future Act Agreement' means a deed or contract:

(a)    to which one or other of the KM Applicants, KM People, YM Applicants or YM People is a party;

(b)    under which a third party has agreed to provide compensation or other forms of monetary benefits in respect of the giving of consent for, or the effect of, the doing of any act on the native title rights and interests or claimed native title rights and interests of any of the persons in paragraph (a); and

(c)    which was entered into or being negotiated [before the 2013 Deed].

144    Significantly, the 2018 Deed does not effect any form of assignment or novation of rights under any 'Existing Future Act Agreement'. Nor does it create or confer upon any person any right to compensation that is not provided for by the Existing Future Act Agreements, including the KM Compensation Deed. It simply takes those agreements as they existed at the time of entry into the 2013 Deed.

145    As has been explained, in the case of the KM Compensation Deed, the compensation is payable to 'the KM Parties'. The term 'KM Parties' is defined to mean 'the Native Title Party and the KM Community Organisation [that is, RRK Corporation]'. The term 'Native Title Party' includes 'the KM People'. The definition of KM People captures three categories of person, but expressly does not include any person on whose behalf the Native Title Applications for the YM People and the WGTO People were made. Therefore, according to its terms, it is the KM People who remain entitled to those rights and no YM Person (and consequently no Mardudhunera Person who is within that definition) can claim compensation under the terms of the KM Compensation Deed.

146    No doubt this is why the claim advanced by WAC is in terms that cl 11.1(1) somehow made the KM People (and RRK Corporation as the holder of their rights under the KM Compensation Deed) trustees for the YM People of the annual compensation payments payable under the KM Compensation Deed.

147    Significantly, cl 11.1 is directed to the rights of each KM Person and each YM Person to benefit from compensation and other benefits provided for by Existing Future Act Agreements. It restricts the rights of those persons to benefit from those agreements (being agreements in existence or in negotiation in 2013). This is the purport of the words 'shall only have rights to benefit' when those words are applied to compensation and benefits under the existing agreements. They constrain the extent to which each person who is a Robe River Kuruma Person or a Mardudhunera Person can 'have' rights to benefit from compensation under those existing agreements. To emphasise, the language in cl 11.1(1) cannot be read as creating or conferring rights upon people who have no such entitlement under the terms of a relevant Existing Future Acts Agreement. Rather, it limits when they can benefit from the compensation and other benefits under the terms of that existing agreement.

148    Further, cl 11.1(1) identifies a class of agreements to which its terms apply. That class is every Existing Future Act Agreement which 'relates' to KM Country or Mardudhunera Country. The KM Compensation Agreement is within that class. It relates to KM Country, being that area the subject of the KM Claim. It also relates to part of Mardudhunera Country being the Overlap Area.

149    So, cl 11.1(1) provides that in order to qualify for compensation payable under the KM Compensation Deed, a person must be a Primary Common Law Holder (being a term that applies to people for KM Country or Mardudhunera Country). However, to labour the point, cl 11.1(1) does not purport to alter the terms of the KM Compensation Deed so as to create any right on the part of persons who are not KM People. Therefore, in the case of the KM Compensation Deed, the only operative effect of the limitation in cl 11.1(1) as to the rights to benefit from compensation that each Robe River Kuruma Person and each Mardudhunera Person 'shall have' is a limitation on a person who comes within the definition of KM People used in the KM Compensation Deed. Conceivably, a person who comes within the definition of KM People in the KM Compensation Deed but who is now a Primary Common Law Holder for Mardudhunera Country (a possibility increased by the expansion of the apical ancestors for the YM Claim) will be prevented by the terms of cl 11.1(1) from receiving compensation under the KM Compensation Deed. However, there can be no other limitation upon any Mardudhunera Person (or YM Person) as to rights to benefit under the KM Compensation Deed because, as has been explained, they have no rights under that deed.

150    As has been explained, for YM People there was a separate compensation deed which, like the KM Compensation Deed, was entered into on the basis that there would be equivalent benefits for YM People as for KM People and, unless agreed to by the people entitled to the compensation, no double claiming. A Mardudhunera Person who is a Primary Common Law Holder for Mardudhunera Country would be entitled to compensation under the terms of the equivalent compensation deed entered into for the benefit of the YM People. The separate compensation deed (like the KM Compensation Deed) related to the Agreement Area. Therefore, it might be said to 'relate' to KM Country (as to the small area in the southern-most part). However, that fact did not mean that cl 11.1(1) created rights under its terms for Robe River Kuruma People.

151    It was submitted for WAC that the terms of cl 11.1(2) mean that every Existing Future Act Agreement must be classified as relating to one or other of KM Country or Mardudhunera Country. However, the language used is not to that effect. Rather, it is making clear that the fact that an Existing Future Act Agreement does or does not relate to the Overlap Area is irrelevant to determining whether it relates to either KM Country or Mardudhunera Country. Therefore, in order for an Existing Future Act Agreement to relate to KM Country it must relate to the area of the KM Claim after the Overlap Area was removed from the claim. It does not matter whether or not it also relates to the Overlap Area. Further, an agreement will relate to Mardudhunera Country if it relates to land that includes the Overlap Area. However, it does not have to relate to the Overlap Area.

152    Clause 11.1(3) provides a mechanism by which 'obstacles that may arise' in implementing cl 11.1 may be overcome. Significantly, it is not a provision that is directed to effecting any form of assignment or novation. Nor does it purport to create a trust in respect of existing rights to benefits under Existing Future Act Agreements. As to trust arrangements, cl 11.1(3) only contemplates the possibility of a variation of an existing trust arrangement, not the creation of a new one. These aspects of cl 11.1(3) count strongly against the claim by WAC. It is apparent that the parties directed their attention to the extent to which the terms agreed by cl 11.1(1) may require some form of variation to existing agreements and trust arrangements. The limit of what was seen to be required was provision that would 'overcome any obstacles' to the operation of cl 11.1(1).

153    The obligation to remove obstacles is explained by the way in which cl 11.1(1) operates. As described above, it operates to confine the persons who will have rights to benefit from compensation and other forms of monetary benefits under Existing Future Act Agreements. It does so by confining those people who can claim to those who are identified as Primary Common Law Holders for the land to which the relevant agreement 'relates'. It is only obstacles to that negative operative effect that are the subject of cl 11.1(3).

154    Therefore, all that cl 11.1(1) is doing is confining rights to compensation under Existing Future Act Agreements to those persons who are a Primary Common Law Holder for the country to which the agreement 'relates'. It presupposes that a person is within the category of persons who, on the terms of the agreement, are entitled to compensation. It then excludes from that category of persons anyone who is not a Primary Common Law Holder for the country to which the agreement relates. In that way it shares the compensation for the Overlap Area under the compensation agreements in the same manner that the 2018 Deed contemplates for compensation and benefits from new future acts. It does so by restricting Primary Common Law Holders to claims under one compensation deed or the other.

155    Therefore, as the KM Compensation Deed 'relates' to what is now KM Country as well as what is now Mardudhunera Country, cl 11.1(1) excludes from those persons who may claim compensation under its terms anyone who is not a Primary Common Law Holder for KM Country or YM Country. However, it does not confer a right to compensation upon anyone who has no such right under the terms of the KM Compensation Deed.

156    It follows, that the claim by WAC must be rejected because cl 11.1(1) does not create a trust interest of the kind contended for by WAC. Beyond that, it is not necessary or appropriate to determine whether the proper construction of the terms of the 2018 Deed mean that persons who fall within the definition of 'KM People' (as used in the KM Compensation Deed) continue to have rights to compensation. No such issue is raised by the present proceedings. It could only be adjudicated with appropriate procedural orders as to representation of those with different interests in the resolution of an issue of that kind.

157    To the extent that there may be said to be ambiguity as to these matters, the construction of cl 11.1 that has been outlined above is supported by regard to matters of context to which the parties referred in submissions. They are addressed briefly below.

158    By the terms of the 2013 Deed, the KM People and the YM People recorded the terms upon which they had resolved 'the overlap and related issues' between them: Recital F. The agreement was reached after anthropological research had been undertaken and a mediation and group meetings had been held: Recitals D and E. The KM People and the YM People agreed areas for Madudhunera Country and Robe River Kuruma Country. They also agreed matters concerning the identification of Madudhunera People and Robe River Kuruma People.

159    The terms of the 2013 Deed required each person who was an applicant for the KM Claim and each person who was an applicant for the YM Claim to 'choose to identify as either a Robe River Kuruma Person or a Mardudhunera Person': cl 7.3(1)(a). They would then become a 'Primary Claimant' in respect of the KM Claim or the YM Claim, as the case may be, based upon that choice. Once made, the choice could not be changed except with the consent of the applicants for the KM Claim and the applicants for the YM Claim: cl 7.3(2). The 2013 Deed also established the notion of a Primary Claimant (being a person who had chosen to identify as a person for whom the claim was made) and a Secondary Claimant (being a person who was within the claim group definition for a claim but who had not chosen to identify as such a person).

160    It was also agreed that a Secondary Claimant may exercise all the native title rights within the country for which they are a Secondary Claimant and would not be prevented from participation in heritage surveys or other cultural and heritage protection activities because of that status in respect of a claim: cl 8.1.

161    By the terms of the 2013 Deed, it was agreed that there would be an amendment to the KM Claim to withdraw that part of the claim which covers the Overlap Area: cl 9.1. It was also agreed that there would be an amendment to the YM Claim to expand the native title claim group to include all Mardudhunera People: cl 9.3.

162    Clause 11.1 of the 2013 Deed contained a provision which was expressed in terms that are quite similar to cl 11.1 of the 2018 Deed. It was as follows:

(1)    Each KM Person and each YM Person shall only have rights to benefit from compensation and other benefits under Existing Future Act Agreements which relate to their Primary Claim and shall not seek compensation or other benefits under Existing Future Act Agreements which relate to their Secondary Claim, unless otherwise agreed by the Primary Claimants for that Secondary Claim.

(2)    To avoid doubt, an Existing Future Act Agreement will relate either to the KM Claim or the YM Claim as those claims exist at the Execution Date regardless of whether or not the Existing Future Act Agreement relates to the Overlap Area.

(3)    The KM People and YM People shall, if requested by the other Claim Group, do all things reasonably necessary to overcome any obstacles that may arise under an Existing Future Act Agreement and/or an existing trust arrangement in implementing this clause 11.1, including if necessary consenting in writing to the variation of an Existing Future Act Agreement or trust arrangement.

163    Like the 2018 Deed, the 2013 Deed also contained provisions concerning the sharing of future benefits for the Overlap Area: cl 11.3.

164    The terms of cl 11.1 of the 2013 Deed confined each KM Person and each YM Person to compensation and other benefits under Existing Future Act Agreements (being agreements that included the compensation deeds with the Participants) where those agreements 'relate to their Primary Claim'. Expressed in those terms, the clause required a conclusion to be reached as to whether an Existing Future Act Agreement related to the KM Claim or the YM Claim. Plainly the KM Compensation Deed related to the KM Claim. Therefore, under the terms of the 2013 Deed only a Robe River Kuruma Person who had chosen to identify as such would have a right to benefit under the KM Compensation Deed. This operation of the terms of the 2013 Deed was accepted by WAC.

165    There are provisions of the 2014 Deed to like effect.

166    There was no reason identified by WAC as to why the nature of these arrangements might have been altered in the fundamental manner contended for by WAC when it came to the 2018 Deed. The recitals do not suggest such a fundamental change. In particular, the purpose of the 2018 Deed as explained in Recital I does not suggest such a change. There is no change in the approach to the Native Title Applications that would explain such a change.

167    Therefore, the fact that the 2018 Deed was entered into in the context of the 2013 and 2014 Deeds supports the construction that has been outlined above of the 2018 Deed. It provides no support for WAC's case as to the proper construction of the 2018 Deed.

The determination of the YM Claim

168    The consent orders as to the determination of native title on the YM Claim included the following as Note F:

The parties have been unable to reach agreement as to the inclusion of two of the ancestors referred to in the YM Application, Tutparinya and Toby, as Mardudhunera ancestors in Schedule Five to the determination. The Mardudhunera People nevertheless recognise that descendants of those ancestors, and any Aboriginal persons who are descendants (including by adoption in accordance with traditional law and custom) of Pantun, Eva, Mabel and Jessie but who are not native title holders in accordance with Schedule Five to the determination, may conduct activities in the Determination Area pursuant to the native title rights recognised in paragraph 4(e) of the determination and pursuant to the [2014 Deed] (as described in clause 13 of Schedule Four).

169    The native title rights as determined in paragraph 4(e) of the determination were expressed in the following terms:

the right to invite those descendants (including by adoption in accordance with traditional laws and customs) of Tutparinya, Pantun, Eva, Mabel, Jessie and Toby who are not native title holders and who, for the avoidance of doubt, are not exercising native title rights or interests, to carry out activities of the kind referred to in paragraphs (a) - (d) above within the Determination Area.

(emphasis added)

170    There had been apical ancestors who had been included in the YM Claim by amendment as agreed by the terms of the 2013 Deed (the amendment added the descendants of 10 apical ancestors not included in the original YM Claim who recognised themselves and were recognised as a member of the Mardudhunera community or group): Holborow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [11]).

171    Accordingly, the descendants of eight of those additional ancestors who identified themselves and who were identified by others as Mardudhunera People and who had a connection with the land the subject of the determination were identified as native title holders in Schedule Five.

172    In consequence, upon the determination of the YM Claim, some people who had not been part of the YM People at the time of entry into the compensation deeds with the Participants were included in the determination.

173    The Participants advanced a contention that people exercising rights upon invitation (as described in paragraph 4(e) of the determination) were not exercising native title rights. That contention may be accepted. However, it is a matter that only has possible significance if (contrary to the conclusions I have reached) there was some form of common assumption by the parties evident from the terms of the KM Compensation Deed that its terms would only be performed in circumstances where the KM People maintained their claim to native title in respect of a significant part of the Agreement Area.

174    However, even if I had accepted (contrary to my reasoning on Issue (1)) that there was some form of common assumption of the kind alleged by the Participants to support its frustration case, it was not the case that all KM People had ceased to maintain their native title claim. What is evident from the procedures that resulted in the 2013 Deed (and the registered 2014 Deed) and the ultimate terms in which the YM Claim was determined is that some of the KM People on whose behalf the KM Compensation Deed was concluded came to be included in those people who are Mardudhunera People for the purposes of the determination.

Conclusion and appropriate orders

175    It follows that the RRK Claimants must succeed on their application. Both cross-claims must be dismissed. There should be a declaration substantially in the terms sought by the RRK Claimants. They have also demonstrated that they are entitled to payment of past annual payments as provided for in the KM Compensation Deed and there should be an order for payment of that sum together with interest.

176    The Participants should be ordered to pay the costs of the RRK Claimants of the proceedings. It is appropriate that the Participants pay the whole of those costs including those that relate to the cross-claim by WAC because that cross-claim was only raised after contentions were advanced by the Participants, in the alternative to its frustration claim, to the effect that the YM People (or Mardudhunera People) were the proper claimants for the annual payments under the KM Compensation Deed. I will grant liberty to the Participants to apply within seven days to seek a contribution to those costs from WAC. If that liberty is exercised, I will make further orders as to the determination of that application.

177    I will make orders for counsel for the parties to confer and propose the terms of final orders within seven days. If agreement is not reached as to the orders then the parties should provide separate minutes of orders. Within seven days thereafter, the parties should file and serve any written submissions as to the terms of final orders. The submissions should be no more than five pages. Subject to further order, the terms of final orders will be determined on the papers.

Associate:

Dated:    29 February 2024

SCHEDULE OF PARTIES