Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia

JOINDER APPLICATION 1 This proceeding was commenced by a native title determination application (Wunna Nyiyaparli People's application) lodged by the applicants on 27 January 2012. The applicants claim native title on behalf of the Wunna Nyiyaparli People. 2 The Wunna Nyiyaparli People's application was notified by the Native Title Registrar under s 66(3)(a) of the Native Title Act 1993 (Cth) (NT Act) during the period commencing 16 May and ending 15 August 2012. 3 The purpose of notification self-evidently is to notify those persons identified in s 66(3) including members of the public of the application so that they can decide whether or not their interests may be affected by any determination ultimately made and so whether they should become involved in the proceedings in order to protect such interests: see Gudjala People No 2 v Native Title Registrar [2009] FCA 1572; (2009) 182 FCR 63 at 66 (Dowsett J). 4 On 14 August 2012, BHP Billiton Minerals Pty Ltd lodged a Form 5 notice of intention to become a party to the Wunna Nyiyaparli People's application. The Form 5 was accompanied by the affidavit of Michael John Fitzpatrick, land tenure and approvals manager of BHP Billiton Iron Ore Pty Ltd. In short, BHP Billiton Minerals Pty Ltd supports its notice of intention to become a party by reference to five exploration licence applications it has lodged under the Mining Act 1978 (WA) being E47/1585, E47/1586, E47/1587, E46/684 and E47/2180. 5 The Form 5 of BHP Billiton Minerals is also supported by an affidavit of Paola O'Neill, senior project officer, Department of Minerals and Petroleum of the State of Western Australia, which discloses that, as of 25 September 2012: (1) In respect of tenement applications E47/1585, E47/1586 and E47/1587, notification under s 29 of the NT Act has been given and they will proceed to grant after 12 November 2012, provided there are no objections to the expedited procedure lodged within that time; (2) Notification under s 29 of the NT Act in respect of tenement application E46/684 with the result that the proposed application is subject to the right to negotiate process; (3) Notification under s 29 of the NT Act is yet to be given in respect of tenement application E47/2180. 6 In light of the circumstances surrounding the potential grants of the exploration licences applied for, a Registrar of the Court referred the joinder application of BHP Billiton Minerals Pty Ltd to me for determination. 7 The joinder application is made under s 84 of the NT Act. A person is entitled to become a party to a native title determination application if "the person's interest may be affected by a determination in the proceedings" (s 84(3)(a)(iii)) and "the person notifies the Federal Court, in writing, within the period specified in the notice under s 66, that the person wants to be a party to the proceeding" (s 84(3)(b)). 8 Following some initial difference of opinion within the Court as to whether the "interest" to which s 84(3)(a)(iii) refers should be narrowly defined as a right or interest in land or waters that reflects the definition of "interest" in s 253 of the NT Act, or more broadly defined to reflect the nature of interests sufficient to provide a person with standing to seek judicial review of decisions in public law proceedings, a Full Court of this Court (Black CJ, Lockhart and Merkel JJ) in Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; (1997) 78 FCR 1 (Byron) held, after an exhaustive examination of the terms of the predecessor provision to s 84(3)(a)(iii) (namely, s 68(2)(a) of the NT Act as it then applied), that a construction of the word "interest" broader than that suggested by s 253 should be adopted. Chief Justice Black considered that interests that are not indirect, remote or lacking substance, which are capable of clear definition and are of such a character that may be affected in a demonstrable way by a determination in relation to the application were contemplated. Justice Lockhart considered that interests that are not remote, indirect or fanciful, above that of an ordinary member of the public and not that of a mere intermedler or busybody, were contemplated. Justice Merkel considered interests that may be genuinely, demonstrably and not indirectly affected by a determination of native title, that are not remote or so insubstantial that the effect of a determination will be merely speculative and that can be defined with reasonable certainty and are readily ascertainable, were contemplated. It may be seen, therefore, there was a degree of agreement between the three members of the Full Court as to the nature of an interest that may be demonstrated for a person to show that their "interest…may be affected" for the purposes of s 84(3)(a) of the NT Act. 9 In Walker (on behalf of the Ngalia Kutjungkatja People) v Western Australia [2002] FCA 869; (2002) 191 ALR 654, French J (as his Honour then was) made an order joining a mining company AngloGold Australia Limited to a native title determination application in respect of a claim area in the north-eastern goldfields of Western Australia. His Honour noted, at [6], that AngloGold was an active explorer for gold in that broader area, spending in excess of $10 million annually on exploration activities. It also operated the Sunrise Dam Gold Mine near Laverton. It was a major open cut operation. The mine employed a large number of staff and contractors. The company had been active in exploration in the Sunrise Dam Gold Mine region. A number of people were involved in exploration activities. It also undertook exploration in the Yandal area. The company had 77 tenements in the north-eastern goldfields. It held 17 mining leases, 29 exploration licences, 21 prospecting licences and 10 miscellaneous licenses. It also had 163 applications for tenements in the north-eastern goldfields comprising 16 applications for mining leases, 73 applications for explorations licences and 74 applications for prospecting licences. 10 On the basis of this evidence, French J, at [7], accepted that AngloGold had a genuine and substantial interest in exploring for gold in the area the subject of the claim. Its expenditure for exploration was estimated in 2002 in excess of $800,000 in relation to which $100,000 to $150,000 was directed to exploration within the subject claim area. His Honour, at [20], distinguished the application of AngloGold for joinder from the circumstances of the joinder application in Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1996] FCA 453 where Olney J had found that the applicant for an exploration licence did not have a sufficient interest for joinder. Justice French acknowledged that it may be that a single application, early in the stages of processing and unsupported by other evidence, would not be sufficient to grant an interest that would support joinder. In the case before him, however, his Honour considered the applications were well advanced and were directed "to the furtherance of a substantial economic interest that AngloGold has in the area". His Honour considered the interests could not be dismissed as speculative or nebulous. He noted that the applications represented steps taken as part of an ongoing exploration activity in the region which encompasses parts of the claim area. His Honour considered AngloGold "plainly qualified for joinder". His Honour also noted that if the party's interests were used as a platform to pursue some collateral ideological or other agenda or the party were to act grossly unreasonably in relation to a proposed consensual settlement, there is a discretion in the Court to dismiss a party from an action. 11 When I heard the present joinder application I was satisfied that BHP Billiton Minerals Pty Ltd had demonstrated an interest sufficient to meet the test for joinder established in Byron in precisely the same way as AngloGold had demonstrated a sufficient interest for joinder before French J, and on that basis I granted the application for joinder. 12 A representative of the applicants, Ms Marjorie Drage, attended the joinder application hearing and indicated that she had no further submissions to make although she initially indicated she wanted to hear how BHP Billiton Minerals Pty Ltd expressed their standing. 13 The interest of BHP Billiton Minerals Pty Ltd arises, generally speaking, by reference to its relationship with other companies. BHP Billiton entities and joint venturers in which BHP Billiton companies are involved, including BHP Billiton Minerals Pty Ltd are managed by BHP Billiton Iron Ore Pty Ltd, of which Mr Fitzpatrick, whose affidavit was mentioned above, is the land tenure and approvals manager. His role as land tenure and approvals manager makes him responsible for the day to day management of the land title and tenure requirements of the entities managed by BHP Billiton Iron Ore Pty Ltd. 14 BHP Billiton's iron ore operations in the Pilbara region of Western Australia, within which the subject area of the Wunna Nyiyaparli People's application is located, according to Mr Fitzpatrick, commenced in the 1960's and now involve: (1) mines at Mt Whaleback, Jimblebar, Yandi, Area C, Nimingarra, Yarri and various satellite ore bodies. The operations supply iron ore to countries including Japan, South Korea, Taiwan and China as well as to Australian steelworks; (2) a rail network which transports iron ore between the mines in the central Pilbara and the port; and (3) export facilities at Nelson Point and Finucane Island at Port Hedland, which include iron ore receiving, processing, stockpiling, railroad and shipping facilities. 15 BHP Billiton Iron Ore Pty Ltd operations require it, according to Mr Fitzpatrick, to hold substantial tenure in the Pilbara. The company's annual production has continued to expand from the original mine in the 1960's to the present annual production of approximately 170 million tonnes per annum today. 16 The company is expanding its operations in the Pilbara, Mr Fitzpatrick states, to meet increased global demand for iron ore. Its Western Australian "Iron Ore Growth Master Plan" he says, is to more than double the current production to 350 million tonnes per annum with an ultimate objective of 450 million tonnes per annum in the longer term. 17 The exploration licences save one are well advanced. They have complied with the requirements of the Mining Act 1978 (WA) processes. In his affidavit, Mr Fitzpatrick states that no objections have been lodged and the grant of them, save for one, is awaiting only resolution of processes under the NT Act. 18 At the hearing of the joinder application, however, counsel for BHP Billiton Minerals Pty Ltd produced Form 4 objections to inclusion in an expedited procedure application pursuant to s 29 of the NT Act lodged by the applicants in respect of the exploration licence applications E47/1585 and E47/1586. 19 Notwithstanding the lodgement of those Form 4 objections, and in some ways by reason of them - in that the reason why the applicants have the status to lodge those objections arises from the registration of the native title application itself - the interest of BHP Billiton Minerals Pty Ltd is sufficiently established by all exploration licence applications, save for E47/2180, having regard to the mining and exploration activities carried on or proposed by BHP Billiton Minerals Pty Ltd and/or related companies in the general area of the Pilbara in which the land the subject of the Wunna Nyiyaparli People's application is located, and on the basis each is well advanced and is not properly to be regarded as speculative. 20 For these reasons I made the joinder order on 22 November 2012. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.