Federal Court of Australia

Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 8) [2026] FCA 1301

ORDERS

THE COURT ORDERS THAT:

1.    The orders made 7 April 2026 be varied such that orders 1 and 2 of those orders operate until 27 February 2046, subject to further order.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    On 27 February 2026 I delivered judgment and made orders in the Claim Group’s claim against the Northern Territory for compensation for acts that diminished their native title rights and interests: Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 5) (McArthur River Project Compensation Claim) [2026] FCA 153 (Compensation Judgment).

2    One of the many issues the subject of the Compensation Judgment was the effect of the Indigenous Land Use Agreement (ILUA) made 14 December 2025 to which McArthur River Mining Pty Ltd (MRM) is a party (Compensation Judgment at [1507]).

3    I have previously considered and made orders relating to suppression of parts of the Compensation Judgment and copies of the ILUA on the Court file at the request of MRM: Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 6) [2026] FCA 236 (Davey (No 6)) and Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 7) [2026] FCA 403 (orders made 7 April 2026). The 7 April 2026 suppression orders were said to operate ‘until further order’.

4    Following the publication of Nicolson v Naizmand (duration of non-publication order) [2026] FCA 635 (Bromwich J), on 16 June 2026 my Chambers wrote to the parties requesting that they comment on a proposed amendment to the operation of the suppression orders so that they operate for a finite duration of 10 years, with liberty to apply to extend.

5    MRM filed submissions requesting a 20-year finite period be imposed, with liberty to apply to extend.

6    In Davey (No 6), I set out the bases on which suppression orders were sought and include extracts of those passages for convenience:

[39]    …[MRM’s] submission is that disclosure may prejudice MRM's bargaining power in future negotiations with other native title holders or traditional owners elsewhere in Australia.

[40]    How that prejudice might arise is not explained. However the natural inference that can be drawn is that MRM is concerned that if the nature and quantum of certain benefits that it has agreed to provide to the Claim Group in this case are made public, such information will be used by other (unidentified) native title holders in other (unidentified) negotiations that may be undertaken now or in the future by it or related entities (such as its parent company, Glencore) in order to seek similar benefits, and MRM or those entities will be prejudiced in their ability to either agree or disagree to provide such benefits as a result.

7    In submitting that a 20-year finite period should be imposed, MRM submitted that a 20-year period would strike a balance between the potential for prejudice to MRM and the principles of open justice. MRM submitted that although ongoing negotiations with other Aboriginal parties may be resolved within (say) a 10-year period, extraction from the mine is expected to last until 2038 with a 10-year period for rehabilitation, such that there remains the potential for confidential information to be used to interfere with MRM’s operations, including rehabilitation. It was also suggested that there may be negotiations with other Aboriginal groups for other projects that might be affected by knowledge of the confidential information.

8    This second submission is not persuasive of itself, taking into account the type of confidential information that MRM seeks to continue to have suppressed. I consider it likely that MRM would remain in a strong negotiating position regardless.

9    However, I accept that the first submission supports extending the suppression period for 20 years as requested, but with the proviso that such order itself be subject to further order.

10    Therefore, even with the finite period provided for, the order does not preclude a person with an appropriate interest applying to the Court for a variation to the orders. This is important for two reasons.

11    First, there has been no contradictor on MRM’s suppression applications. If a contradictor comes forward, there may be new arguments that need to be considered.

12    Second, as time passes, the landscape of the native title compensation regime may potentially change, as may the facts relating to MRM’s negotiations with Aboriginal groups, such that the terms of the suppression might properly be re-visited on request by MRM or an interested party.

13    There will be an order varying the access and suppression orders made 7 April 2026 such that orders 1 and 2 of those orders operate until 27 February 2046, subject to further order.

Associate:

Dated:    2 September 2026