THE LAW
13 The relevant provisions of the NT Act are sub-ss 84(8) and (9) of the NT Act. They provide as follows:
Dismissing parties
(8) The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.
Court to consider dismissing parties
(9) The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:
(a) the following apply:
(i) the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and
(ii) the person's interests are properly represented in the proceedings by another party; or
(b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings.
14 In Cheinmora v State of Western Australia [2013] FCA 727 Gilmour J at [8] said:
"Interests" for the purposes of s 84(9) bears the same meaning as "interests" for the purposes of s 84(5): Budby on behalf of the Barada Barna People v State of Queensland [2010] FCA 1017 at [12]. For the purpose of s 84(5), a sufficient interest need not be "proprietary or even legal or equitable in nature", nonetheless it must be genuine; "not indirect, remote, or lacking substance"; capable of clear definition; and "be affected in a demonstrable way" by the determination in the proceedings: Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at 7-8 per Black CJ. A sufficient interest may be "that of a corporation whose activities may be curtailed or otherwise significantly affected by a determination:, but that does not extend to an interest in furthering the interests of the corporation's members: Byron; Adnyamathanha People No 1 v South Australia (2003) 133 FCR 242; Budby.
There is no real dispute about the applicable principles, subject to the following issue.
15 Counsel for Kelaray noted that Byron Environmental Centre Inc v Arakwal People (1997) 78 FCR 1 (Byron) was decided in a context where a respondent party to an application under s 61 of the NT Act "could effectively veto the making by the Court of a consent determination": see per Hely J in Wilson v Minister for Land and Water Conservation (NSW) (2003) 126 FCR 500 at [27]. It is certainly correct that in Byron both Black CJ at 7 and Merkel J at 31 made that point. The expression in Byron of the content of the "interests which may be affected" in sub-ss 84(3) and (5) was clearly influenced by that matter. For instance, Black CJ in Byron said at 7:
The nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) [now repealed and succeeded by s 84(3)(a)] and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance.
See also per Merkel J at 31-32 and 36-37.
16 On 15 April 2007, s 87A of the NT Act came into force: Native Title Amendment Act 2007 (Cth). It was then amended in some respects by the Native Title (Technical Amendments) Act 2007 (Cth) and by the Native Title Amendment Act 2009 (Cth). I shall call the two amendments in 2007 "the 2007 amendments" and the later amendments "the 2009 amendments".
17 The contention of Kelaray is that a party who does not hold an "interest in relation to land or waters" within the defined meaning of s 253 of the NT Act in respect of the area that is to be subject to the consent determination no longer has the right of veto described by Black CJ and Merkel J in Byron, but has only a right to procedural fairness under s 87A(8). Hence, it is argued, the degree to which a person's interests are to be affected in order to become a party has been lessened. The qualitative nature of that change is not fully expressed. It is accepted that the various descriptive words such as "not indirect", "remote", "lacking in substance", "genuine" and the like used in Byron are still useful but, it is argued that in applying such words, the significant change must be kept in mind.
18 I do not think much, if anything, can be made of the history of s 87 or the introduction and history of s 87A to advance Kelaray's position. In the first place, the directly applicable words in sub-ss 84(3), (5) and (9) for the joinder or removal of parties have changed only in the ways addressed below, and there is no reason why the amendments to ss 87 and 87A should be taken as intending to alter the clear meaning of those words as in force from time to time. Secondly, the removal of the veto entitlement of a respondent to an application does not itself signify that the test to determine whether an entity should become, or be removed as, a party to an application is intended to be changed. And thirdly, more as a corollary to the second reason, it is clear enough that the work intended by the amendments to s 87 and the introduction of and amendments to s 87A is achieved without requiring or suggesting the need for any substantive alteration of the test for a party to be, or remain as, a party to an application under s 61. Finally, it may be added, the expressions used in Byron seem equally appropriate now. It is difficult to think of any different and more confined expressions which might now otherwise be adopted.
19 It is necessary to explain in a little more detail the third proposition and the relevant legislative changes.
20 The relevant provisions are in Part 4 - Determinations of the Federal Court. Originally Division 1 - General of Part 4 included ss 80-87. Section 84 dealt with parties in briefer terms than it now does. The parties were those who were parties under the then s 68 which in turn referred relevantly to the then s 66(2)(a): a person holding a registered proprietary interest in any part of the claim area. In addition, the then s 84(2) permitted the Court to join a person whose "interests" are affected or may be affected by a determination. Section 87 dealt with the power of the Court if parties to an application reached agreement. It then included only sub-ss (1)-(3), as they presently stand.
21 The Native Title Amendment Act 1998 (Cth), introduced a new and brief Division 1 - Overview of Part comprising only s 79A. The previous Division 1 was broken into Divisions 1A, 1B and 1C dealing respectively with General (still including s 84), Reference to NNTT for Mediation, and Agreements and Unopposed Applications (ss 86F, 86G and 87). Section 87 was not changed.
22 At the same time, s 84 was amended so that certain persons were entitled to become parties under s 84(3), relevantly, persons holding a registered proprietary interest in any part of the claim area or persons whose "interests" may be affected by a determination, and who had given notice to the Court in the specified time. Sub-sections 84(5), (8) and (9) were introduced in their current terms, save that the words "and it is in the interests of justice to do so" were later added to s 84(5) by the 2007 amendments. The use of the term defined in s 253, "interests in relation to land or waters" of the claim area, was not then applicable to a non-native title person seeking to be or remain a respondent party.
23 By the 2007 amendments, s 87A was introduced, and s 87 remained materially unchanged. It is clear from its terms that s 87A made explicit that the Court had power to give effect to an agreement between the parties where the agreement related to part only of a determination area. It required the agreement of specified parties by sub-s (1)(c), including by subclause (v), each person who claims to hold "an interest in relation to land or waters" over the land the subject of the agreement and who is a party to the proceeding. That reflects the words in s 84(3)(a)(iii) as they were altered at the same time, changing "interests" to "interest in relation to land or waters", so as to pick up the definition in s 253. By that amendment, it appears that the entitlement to become a party under s 84(3)(a)(iii) was confined but s 84(5) was left to allow wider "interests" to be recognised in the Court's discretion. To the extent that s 84(3)(a)(iii) applied, the veto referred to was maintained. Notice was required to be given to other parties (presumably including parties with possibly wider "interests"): s 87A(3), and the Court was required to consider their objections: s 87A(8). It may be inferred that sub-ss 87A(3) and (8) recognise that the "interests" referred to in sub-ss 84(5) and (9) may be interests other than interests in relation to the land or waters of the claim. Of course, s 84(5) could also cover those with interests in relation to the land or waters of the claim area who had not given the notification required by s 84(3)(b).
24 The 2007 amendments therefore provided for two categories of persons with "interests" which may be affected by a determination to be able to become parties:
(1) by s 84(3): those who have an interest in relation to land or waters in the claim area (as defined in s 253), and who give notice under s 84(3)(b); and
(2) by s 84(5): those whose "interests" may be affected by a determination, where the word "interests" is not defined, but may include:
(i) those who have an interest in relation to land or waters in the claim area, but did not give notice under s 84(3)(b);
(ii) those who have a different (and probably lesser) interest or interests which may be affected by a determination.
Those in the second category are subject to the Court's discretion as to whether they may be joined as parties. The removal of parties under s 84(8) is not in terms restricted, but informed by s 84(9) which imposes an obligation on the Court to consider removing a party in certain circumstances.
25 The 2009 amendments did not further amend s 84. They added sub-ss 87(4)-(11) and substituted a new sub-ss 87A(5)-(12) for the old sub-s 87A(5). Those amendments made it clear that the Court could make orders giving effect to the agreement of parties, extending beyond the recognition of native title rights and interests, and the procedures to be followed in doing so.
26 Whilst it is clear that Byron was decided when the relevant provisions did not include those made in 2007 and in 2009, there is no reason to doubt its relevance to the correct application of the present provisions. More importantly, the distinction appearing from the 2007 amendments to s 84 referred to above appears to have been influenced by the consideration in Byron of any difference in the use of the terms "interests" and "interest in land or waters" in s 84 as it then stood: see eg per Black CJ at 4-6.
27 Kelaray has defined its claimed interest in relation to the claim area in the following terms at [43]-[46] of its outline of submissions:
Kelaray's interests arise from it being a holder of EL 4296 and its intention to conduct mining operations in respect of it, if economically viable. The substantive nature of those interests is demonstrated by both the potential size of the mineralisation within the tenement and the expenditure by both Kelaray and its joint venture partner.
If the mineralised rock currently identified within the tenement were economically viable, Kelaray would, as a matter of course, apply for a mining lease within the area of EL 4296 in order to conduct mining operations.
In the event that such a lease is sought and granted, there would be a need to seek further permissions in respect of the wider non-overlapping area, in that:
1. Any viable mineral deposits within the tenement are geologically constrained to depths greater than 400m below the surface due to overlaying, unmineralised sedimentary rocks.
2. Any mine will be an underground mining operation, rather than open-cut, as the presence of the lake surface restricts the practicality of an open-cut mine.
3. In order to access ore at depths of greater than 400m, a decline (a sloping underground ramp) for vehicle and infrastructure access would be required.
4. This decline must be constructed so that, starting from the mineralised rock, it proceeds on an angle to the surface. Given the depth of the mineralised rock, the opening of the decline (known as the decline portal) will be to the west of the lake margin. This would place part of the decline and the decline portal within the non-overlapping area that remains part of the present proceedings.
5. In the event of such mining operations being conducted, it will be necessary to construct infrastructure in the vicinity of the decline portal to support the operation. This infrastructure would include a mineral processing plant, tailings facilities, accommodation, and potentially additional roads or at least an upgrade of existing tracks and roads.
6. A mineral processing plant for the type of ore and scale of operation under consideration will be large. The smallest plant of the type described has a footprint of .35 square kilometres. The plant would comprise:
(a) crushing and milling facilities to break the mined ore into small enough particles to allow for the liberation of economic minerals;
(b) a flotation plant to separate heavier, economic minerals from gangue minerals;
(c) thickeners for the dewatering of the mineral concentrate; and
(d) if justified by feasibility study, a smelting plant for the production of metal from the concentrate.
7. A tailings dam for an operation of this nature would also be necessarily large and would be located so as to mitigate against the potential for leakage into Lake Torrens. The smallest dam of the type described has a footprint of 1 square kilometre.
8. Logistical facilities such as accommodation camps, laydown areas and roads would be extensive during the construction phase and comparatively modest during the operational phase.
9. It is unlikely these facilities could be built to the east of the lake, as the proximity of the mineralised rock to the western edge of the lake makes it economically impracticable to build them on the other side.
A determination of native title over the non-overlapping area will require that Kelaray, in order to construct such facilities, will need to negotiate and/or commence proceedings with the registered native title holders. As such, its interests may be affected.
28 The significance of the present provisions in relation to the present claim area (which excludes the Lake Torrens area over part of which EL 4296 lies) is that Kelaray no longer has an "interest in relation to the land and waters" of this claim area. It could not now routinely qualify as a party to this claim under s 84(3)(a) and (b). Any such interest is confined to the Kokatha Uwankara (Part B) (Lake Torrens) claim. Any "interests" it has in the present claim area do not fall within the relevant definition in s 253.
29 Kelaray's evidence shows that it has held exploration rights over part of the Lake Torrens area since 1998. There are "preliminary indications" of substantial mineral deposits with the area of EL 4296, and exploratory non-field based investigations are continuing in respect of the tenement. EL 4296 expires on 17 August 2013. Kelaray anticipates that it will be renewed. Depending on further investigations (in an unspecified time frame, but assuming EL 4296 is extended) and the identification more positively of mineralised rock within the scope of the exploration licence, it will be necessary to determine whether the tenement is "economically viable". If that step is then affirmatively assessed, it is said that Kelaray (presumably with Straits) would apply for a mining lease over the same area of Lake Torrens.
30 Kelaray says that, because of the depth of any such mining and the nature of the surface of Lake Torrens, there would have to be an underground mine with a sloping underground access ramp (decline portal) from west of the western margin of Lake Torrens, and therefore commencing from the present claim area, with associated infrastructure around the decline portal occupying some 0.35 square kilometres. That would in any event, it accepts, require the grant of further licences under the Mining Act 1971 (SA) and/or other access arrangements over that area.
31 There is no preliminary feasibility study at present.