NC (deceased) v State of Western Australia

INTRODUCTION 1 An application has been brought by three companies that they be joined as respondents to this proceeding. The interlocutory applicants are Fortescue Metals Group Ltd (Fortescue), The Pilbara Infrastructure Pty Ltd (TPI) and FMG Pilbara Pty Ltd (FMGP) (I will refer to these collectively as FMG unless it is necessary to stipulate a specific company). 2 The application is opposed by the Yindjibarndi Aboriginal Corporation (YAC) purportedly acting for the applicant. There is a preliminary question as to whether the YAC remains the applicant's agent and therefore has standing to oppose the joinder applications. In light of the conclusion I have reached on FMG's joinder applications, it is unnecessary to express a view on the question of agency at this stage. 3 The first respondent (the State) has made it clear that it does not oppose the application for joinder. 4 For reasons which follow, the joinder will be permitted.

GROUNDS FOR APPLICATION 5 Pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA) the Court may at any time join any person as a party to the proceedings if the Court is satisfied that the person's interest may be affected by a determination in the proceedings and it is in the interests of justice to do so. 'Interest' is defined in s 253 NTA as follows: interest, in relation to land or waters, means: (a) a legal or equitable estate or interest in the land or waters; or (b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (i) the land or waters; or (ii) an estate or interest in the land or waters; or (c) a restriction on the use of the land or waters, whether or not annexed to other land or waters. 6 The application for joinder is based on detailed affidavit evidence of Mr Thomas James Weaver, the Native Title Manager of Fortescue, from which it is established that TPI and FMGP are subsidiaries of Fortescue and that Fortescue is Australia's third largest iron ore producer. FMG is pursuing a mining development called the Solomon Hub Expansion Project (the Solomon Project). The Solomon Project lies within the claim area. The planned capital expenditure of the Solomon Project exceeds AUD3 billion. 7 In addition, FMG is developing the Anketell Project which will include the construction of a heavy gauge railway from the Solomon Project to a port to be built at Anketell near Roebourne in Western Australia (the Anketell Rail Extension). TPI holds a Special Rail License which extends into the claim area. The licence entitles it to construct and operate a heavy gauge railway. It is also applying for four miscellaneous licences partly within the claim area applied in connection with the Anketell Rail Extension. 8 FMGP is the holder of some 14 mining tenements lying wholly or partly within the claim area. FMGP has also applied for over 20 more mining tenements which also lie partly or wholly in the claim area. 9 Ignoring the interests of the subsidiaries, Fortescue is the applicant for exploration licence E47/1319 which lies wholly within the claim area. 10 On 7 February 2012, the National Native Title Tribunal (the NNTT) determined that E47/1319 may be granted in a decision FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia, [2012] NNTTA 11. 11 Fortescue submits that as an applicant for an exploration licence it has sufficient interest for the purpose of s 84(5) NTA. It relies upon the observations of French J (as his Honour then was) in Walker v Western Australia (2002) 191 ALR 654 (at [20]) where his Honour said: It may be seen from the preceding that AngloGold has no legal or equitable interest in relation to the land by virtue of having lodged applications for exploration licences, notwithstanding that recommendations have been made for their approval. In Members of the Yorta Yorta Aboriginal Community v State of Victoria (unrep., Fed Court, 7 June 1996), Olney J held an application for an exploration licence not to constitute a sufficient interest for joinder of the Western Mining Corporation as a party in a native title determination application. His Honour said: "Even on the basis of the fairly wide construction which I have applied to the words "the person's interests" ... I do not think that the mere desire of an individual to obtain a licence, which may or may not be granted by the licensing authority, amounts to an interest which has sufficient substance to be caught by the words of s 84(2). If the mere lodging of an application for an exploration licence gives a person standing to apply under s 84(2) to be joined as a party there would be no limit to the occasions when such an application could be used as a device to intermeddle in the proceeding." (9-10) But the case differs materially from that decided by Olney J. It may be that a single application, early in the stages of processing under the Act, and unsupported by other evidence, would not be sufficient to grant an interest which would support joinder. In the present case, however, a number of the applications are well advanced and they are directed to the furtherance of a substantial economic interest that AngloGold has in the area. That interest cannot be dismissed as speculative or nebulous. The applications represent steps taken as part of an ongoing exploration activity in the region which encompasses parts of the claim area. It is plainly qualified for joinder. It may be noted, by way of caution, that if a party's interests were used as a platform to pursue some collateral ideological or other agenda or if a party were to act grossly unreasonably in relation to a proposed consensual settlement, there is a discretion on the part of the Court to dismiss the party from the action - Bissett v Minister for Land and Water Conservation (NSW) at [24]. 12 As with AngloGold in Walker, the application for exploration licence E47/1319 is well advanced as acknowledged in the determination by the NNTT that the licence may be granted and that it is part of a larger mining activity within the claim area. It is clearly distinguishable from the position I considered in Freddy on behalf of the Wiluna Native Title Claimants v State of Western Australia [2010] FCA 1158 where there was no evidence of the status exploration licence application or of any interests that the applicant may have had in the area. 13 As to the interests of justice, FMG contends that they 'include' the following: 1. all the joinder applicants have significant interests in the claim area which may be materially affected by any determination in the proceeding; 2. FMG plans to incur and has already incurred significant capital expenditure constructing infrastructure within the claim area; 3. the determination application has not been listed for hearing and is still the subject of mediation in the NNTT; 4. YAC purportedly on behalf of the applicant has opposed and continues to oppose the endeavours of FMGP within the claim area; and 5. YAC and FMG have been unable to reach agreement concerning FMGP's mining operations within the claim area.