State of Western Australia v Buurabalayji Thalanyji Aboriginal Corporation

The parties' submissions on ground 1 19 On the question of sufficient doubt, and by reference to the relevance of provisions of the Mining Act 1978 (WA), including s 85, the State makes the following submissions: As identified by senior counsel at the hearing (at p 16 of the transcript), the potential application of s 85 of the Mining Act and its relevance to BTAC's claim, in particular its claim of tortious conspiracy, is a matter of law. The section is central to BTAC's proposition that the excavation by Chevron Australia Pty Ltd, for Onslow Salt, was not authorised by any means, including not by the mining lease 273SA. BTAC's claim as pleaded, up to and including [71] of the Substituted Statement of Claim dated 22 December 2017 (statement of claim), relies entirely on the contention that the mining of rocks, sand, gravel and soil by Chevron, for Onslow Salt, in 2012 was not lawful because approval by the Minister for State Development of the additional proposal submitted on 18 January 2012 under the State Agreement was flawed and no other source of validation existed. The lawfulness of mining for minerals other than evaporites by Chevron, for Onslow Salt, flows from s 85(1)(b) and s 85(2)(b) of the Mining Act. Those legal effects can be restricted only pursuant to s 110 of the Mining Act, which section has not been engaged or pleaded by BTAC to be engaged. Section 82(1)(ca) of the Mining Act must be addressed. It provides that every mining lease shall be deemed to be granted subject to a condition that the lessee shall not use ground disturbing equipment unless, amongst others, the Minister so approves. First, that provision was introduced in 2004 and came into effect in 2006: Mining Amendment Act 2004 (WA) s 32; Government Gazette (WA) (No 24, 3 February 2006) p 516. Not having effect before 2006, s 82(1)(ca) could have no influence on the proper construction of the Development Deed or the Future Act Agreement (pleaded at [14] and [18] of the statement of claim as being respectively entered into on or around 1 March 1996). Each of the Development Deed and Future Act Agreement must be construed in light of the then­applicable law, which means that the Thalanyji agreed to a mining lease, including the effect of s 85 but not including s 82(1)(ca). Second, s 82(1)(ca) does not apply to proposals under a State agreement (see s 82(1b) of the Mining Act). Nevertheless, the Minister's approval of the additional proposal was an approval for the purposes of s 82(1b). Third, in any event if (which is denied) it was arguable that the Minister's approval of the additional proposal was not properly given, ss 82(2), 82(3), 155 and 160 of the Mining Act make clear that a failure by Onslow Salt to obtain or hold approval for the purposes of s 82 does not result in any relevant invalidity (or "avoidance") of the mining of rocks, sand, gravel and soil as proposed. 20 The State submits that the primary judge in this case failed to mention these contentions, which are matters of law central to its application. It contends there was no meaningful identification or analysis of these contentions in the judge's reasons. 21 The State submits that the primary judge did not refer to s 85 of the Mining Act, save for brief comments at [24]-[25] of the reasons for decision. The State submits there is "no reference to s 85 in the part of the decision dealing with the State's arguments, concerning the tortious conspiracy claim (see [76]-[91] of the reasons for decision)". In circumstances where the State says oral submissions on these matters occupied a considerable part of the summary judgment hearing, the omission should be considered significant such that the Court on an appeal would infer that the primary judge did not assess the State's arguments and the relevant law. 22 As to the question of substantial injustice, the State says that the case of BTAC would "fail entirely" if the proposed appeal ground 1 was upheld, because the mining was otherwise authorised by the Mining Act and, to the extent the Minister's approval was not valid for the purposes of the Mining Act, the mining so performed was not relevantly invalid or void. 23 Also, it says, BTAC's claim of tortious conspiracy against the State and Onslow Salt would not have reasonable prospects of success. This would avoid any need to apply to join Chevron as an alleged co-conspirator and respondent to WAD341/2017. 24 Further, it says, BTAC's claim for a declaration of invalidity of the approval of the additional proposal (referred to in [1] of the prayer for relief in the statement of claim) would be "inutile and liable to be withdrawn or dismissed". 25 I note, in passing, that Onslow Salt filed an outline of submissions on the application for leave to appeal for the purpose of advising the Court that, if the State's first ground is established, it would then cross-appeal an associated point decided by the primary judge against Onslow Salt. 26 BTAC submits that the State is wrong to submit that the primary judge did not consider its arguments relating to the Mining Act and that the primary judge did consider them. 27 BTAC submits that the primary judge summarised BTAC's pleaded case at [5] and [6] of his reasons, including relevantly that: the State granted a mining lease to Onslow Salt "for evaporites, which is defined in cl 1 of the State Agreement to mean, in essence, solids produced by evaporation of sea water and brine": 5; Onslow Salt could, in accordance with approved proposals for a salt mining operation or construction of ancillary infrastructure (and the maintenance thereof) for the purposes of the State Agreement and without the payment of royalty, obtain stone, sand, clay and gravel from the Salt Mining Area by cl 10(9) of the State Agreement, but could not otherwise on-sell stone, sand, clay or gravel from the Salt Mining Area: 5; Onslow Salt submitted an "additional proposal" under the State Agreement which falsely stated that its purpose was to mitigate flooding risks to its salt operations: 5; the true purpose was to enable Chevron, as the appointed contractor of Onslow Salt, to remove up to 10 million cubic metres of fill, being soil, sand, clay, gravel and cap rock from the Salt Mining Area for Chevron's use as fill in the Wheatstone Project in exchange for which Chevron would pay Onslow Salt a total of approximately $75 million plus GST: 5; and the extraction of the fill material could not be validly authorised under cl 7 of the State Agreement, but could only be authorised by a mining lease granted under the Mining Act: 6. 28 BTAC then submits that: Onslow Salt and the State admitted that Onslow Salt caused 10 million cubic metres of fill material to be removed from the area of the mining lease and used as fill in Chevron's Wheatstone Project. The State admitted the material included sand. At [22], the primary judge referred to "difficult factual and legal questions" that needed to be resolved, saying: BTAC argues that the actions of which it complains, namely, the removal of 10 million cubic metres of fill, being soil, sand, clay, gravel and cap rock from the Salt Mining Area, was not permitted under the Mining Lease, which permitted only the mining of evaporites as specified in the Schedule to the State Agreement. [emphasis added] At [23], the primary judge observed that "BTAC argues that the conditions and the stipulations attached to the mining lease do not authorise the removal of the fill material, or its sale to Chevron", and at [24] said: BTAC contends that the extraction and removal of fill material on a commercial one off basis for sale to Chevron is not within the range of activities that could be approved via the cl 7 process. This is expressly pleaded by BTAC in the SSOC, where it contends that the extraction of fill material from the Salt Mining Area needed to be (but was not) authorised by a mining lease permitting the extraction of the fill material, which is a 'mineral' for the purposes of the Mining Act as defined in s 8(d). As cl 10(1)(a) of the State Agreement provides, the lease is subject to the Mining Act and Onslow Salt needed (but did not have) the rights granted by a mining lease under s 85(1) of the Mining Act in order to mine the fill material. [emphasis added] At [25], the primary judge concluded "I consider BTAC's position supporting this claim, and the claim itself, is arguable in relation to these issues. There are additional arguments on this topic, which do not require consideration at this juncture...". At [36], the primary judge referred to BTAC's contention that "the removal of the material, being non-evaporites, without authority constituted an offence under s 155(1) of the Mining Act", and at [39] said: "the native title contentions of BTAC are arguable and the claim is arguable if BTAC can establish that the mining is unlawful. While I have some reservations, there is no good reason BTAC should be shut out from contending this issue at trial". At the commencement of the reasons regarding the State's application, the primary judge noted that "[t]he State adopts all arguments advanced by Onslow Salt. As I have rejected those arguments, it is unnecessary to say more about them": [52]. Finally, after concluding his examination of the State's arguments to the extent they went beyond Onslow Salt's arguments, the primary judge said at [91]: "[n]one of the remaining complaints by the State raise matters which are not dependent on those arguments that I have already rejected above". The State's contention in support of ground 1 is that: (a) the lawfulness of mining for minerals other than evaporites by Chevron, for Onslow Salt, flows from s 85(1)(b) and s 85(2)(b) of the Mining Act: submissions [8]; (b) the primary judge did not "meaningfully identif[y] nor analys[e]" that matter of law: submissions [15]; and (c) the Full Court should therefore "infer that the primary Judge has not considered the matter'': submissions [19]. The State's contention must be rejected. The trial judge expressly concluded at [25] that BTAC's claim - which included the contention that "Onslow Salt needed (but did not have) the rights granted by a mining lease under s 85(1) of the Mining Act in order to mine the fill material" - was arguable. The "lawfulness" of the removal of the material given s 85 is the very question that the State asserts was not considered. It is abundantly clear that the primary judge did consider that question in terms, and his reasons disclosed the intellectual process of the primary judge and the matters to which he had regard in reaching his conclusions. (See for example, Tickner and Others v Chapman and Others (1995) 57 FCR 451 at 462; [1995] FCA 987 (Black CJ)). His Honour's conclusion that BTAC's claim was arguable cannot be attacked on House v The King grounds. Self-evidently, it contains a "real question of law or fact that should be decided at trial". See Australian Securities and Investments Commission v Cassimatis and Another (2013) 220 FCR 256; [2013] FCA 641. The State's contention thus involves cavilling with the conclusion rather than identifying an aspect of its submissions that the trial judge failed to address. The State's stated basis for a grant of leave is not made out. No doubt attends the decision. Further, the State has failed to draw attention to the fact that the rights that it contends were conferred on Onslow Salt under the mining lease via s 85 of the Mining Act would not, in any event, have included the right to mine sand. Hence, even if it were correct on its argument, the mining lease would still not have authorised removal of all of the fill material that was taken, and summary dismissal could not be given. 29 On the question of substantial injustice, BTAC submits the State has not demonstrated or adduced evidence that it would suffer any substantial injustice should its application be refused, and indeed the question of substantial injustice works the other way - if the State's application were granted, BTAC would be denied any ability to bring this aspect of its claim.

The parties' submissions on ground 2 30 On the question of sufficient doubt, and the relevance of provisions of s 24MD(6B) of the NTA, the State submits as follows: In its statement of claim, BTAC contends that because the approval of the additional proposal by the Minister varied a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining, s 24MD(6B)(b) of the NTA applied so as to require consultation with, and allow objection by, BTAC, and compensation is claimable under Div 5 of Pt 2 of the NTA. Performance of the contract as pleaded (by which Onslow Salt engaged Chevron to undertake excavation of the materials for the purposes pleaded at [28.1] and [38] of the statement of claim) does not fall within the definition of "mining" in the NTA. The definition of "mining" in the NTA excludes the removal of sand, gravel, rocks or soil for use untreated as construction material: s 253. As a consequence, the approval of the additional proposal could not have constituted a variation of a right to "mine" for the purposes of the NTA, and BTAC has not pleaded an arguable basis for the application of s 24MD(6B)(b). 31 The State contends that the primary judge did not refer to the definitional issue of "mine" in the NTA and failed to address s 24MD(6B) despite having raised the issue in its written submissions and oral submissions at the hearing. 32 It submits it is significant that BTAC's alternative plea for compensation, and the State's submissions on that aspect, including the definitional issue, were not separately examined in the reasons for decision. However, other issues identified by the State were dealt with in discrete sections. The State submits that while the alternative claim was referenced at [53(d)] of the reasons, it was not meaningfully "revisited" thereafter. 33 As a result, the State submits a Full Court would infer from the reasons that the primary judge did not consider the State's contentions and the relevant law. 34 On the question of substantial injustice, the State submits that the claim of BTAC at [72]-[76] of the statement of claim would fail against the State due to the effect of s 24MD of the NTA and s 125A of the Mining Act, if ground 2 is upheld. 35 BTAC submits ground 2 must fail. 36 BTAC says that the primary judge observed that BTAC contended that the Minister's approval of the additional proposal was void (at 6) but "alternatively, if the Minister's Approval was not void, it was a future act in respect of which BTAC has the rights provided for by s 24MD(6B) of the NTA and BTAC has a right to compensation pursuant to s 24MD(3) of the NTA": 6. His Honour also referred to the State's submissions - including that the additional proposal was a contractual power and was not "pursuant to any statutory obligation or power'' ([56]) and thus is not amenable to judicial review - as well as numerous factors identified by BTAC in support of its contention that the decision is amenable to judicial review: [58]. 37 BTAC further notes that the primary judge concluded, at [64], after extensive reasons, that "[h]aving regard to the factors to which BTAC points ... while the State's submission may ultimately succeed at trial, there is considerably more unpacking required of the facts and circumstances in this developing area of the law. It is not appropriate for summary judgment". 38 BTAC submits the State's contention as to the application of s 24MD(6B) of the NTA only arises if BTAC's primary submission is rejected and the Minister's approval is either not amenable to judicial review, or is amenable to judicial review but not rendered void upon the outcome of such review. If, and only if, that is the case, will BTAC's alternative claim for compensation under the NTA arise for consideration. Only then does the question arise whether s 24MD(6B) responds to the acts in question. 39 BTAC contends that the essence of the State's complaint is that the primary judge did not "meaningfully identif[y] nor analys[e]" its arguments about the construction of s 24MD(6B), and therefore must be taken not to have considered them. 40 BTAC submits that the primary judge expressed clear and cogent reasons for finding that BTAC's primary case on the topic of judicial review of the Minister's approval was not appropriate for summary dismissal. The State does not attack those reasons or that conclusion. As a result, the State could not hope to obtain summary dismissal of BTAC's claim on the basis of the State's contentions as to BTAC's alternative argument. The State's contention in ground 2 therefore falls within the "remaining complaints by the State" referred to at [91] of the reasons, as even if made out, it would not have justified summary dismissal and could not have altered the primary judge's decision to refuse summary dismissal. The reasons on this topic clearly demonstrate the basis upon which the State won or lost, and are sufficient to give effect to the right of appeal. As leave is not sought to appeal from the primary judge's decision as to judicial review, this ground is doomed to fail. 41 BTAC further submits that the claim is not suitable to be dismissed as part of the proceeding. The State, at [26] of its submission, misstates the definition of "mine" in s 253 of the NTA by omitting a key restriction. The definition of "mine" includes "explore or prospect for things that may be mined" and "quarry'', "but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land" for a purpose other than two purposes then set out in the section. There is a clear question of mixed fact and law whether the 10 million cubic metres of material was not removed from "the natural surface of land" (for example, it was removed from below the natural surface), in which case its removal would not be "mining" under the NTA, such that the State's construction argument would fail. That question is plainly one for determination at trial, upon evidence as to what material was removed, from where and how. It is demonstrably unsuitable for determination on a summary basis. 42 On the question of no substantial injustice, BTAC submits the State has again not demonstrated that it would suffer any substantial injustice should its summary dismissal application be refused and, rather, it is BTAC that would suffer if it was shut out from litigating this part of its claim.

Should leave to appeal be granted? 43 Essentially, for the reasons advanced in the submissions of BTAC, I do not consider that this is a case where the primary judge has simply failed to regard and give consideration to grounds advanced by a party for the making of orders that it seeks. 44 True it is that one does not find in the reasons of the primary judge a long consideration of all issues raised by the parties, including by the State in its supplementary submissions filed just before the hearing on 14 May 2018. 45 It is clear, however, that the primary judge heard oral submissions concerning those written submissions and indicated that the question of leave to rely on them, and the accompanying affidavit of Mr Fearis, would be dealt with by him later. 46 While there is no express statement in the primary judge's reasons to the effect that he granted that leave, in my view the manner in which his Honour canvassed the various issues raised by the parties sufficiently discloses his Honour was mindful of the gravamen of the supplementary submissions. 47 The significant point to be made, which is reasonably made by BTAC in its submissions, is that his Honour considered, in relation to all the claims being advanced in the pleadings against both Onslow Salt and the State, that the claims being advanced were novel as well as complex, both as to facts and law. In that context, in my view, it is clear enough that the issues identified in proposed ground of appeal 1 were considered by the primary judge. He considered the mining authorised by the relevant mining lease not to be a summary judgment point, but one best left to a trial to be considered in the light of all the facts and circumstances and legal argument. 48 Similarly, in relation to the draft ground 2 issue. This involves an alternative argument put by the State. For the reasons advanced by BTAC, as set out at [40] above, I do not consider leave to appeal on this ground should be given. 49 I consider that his Honour took the view that all issues, including the application of s 85 of the Mining Act and the relevant application of s 24MB(6B) of the NTA, should be considered in appropriate detail at trial, and not at a summary judgment level of judicial decision-making. 50 In my view, this is one of those cases where a judge, having taken a broad view of the complex matters of fact and novel legal questions in issue, has, in the result, determined that, rather than try to tease apart particular issues on a summary judgment application, it is best to let all issues go to trial. In a case such as the present that is, with respect, understandable. 51 I consider, having regard to the principles of House v The King, that it has not been demonstrated that the primary judge has committed any appellable error in so deciding. 52 For these reasons, I would refuse leave to appeal on either of the grounds identified in the leave application filed by the State.

Order 53 The Court orders: (1) The application of the State of Western Australia seeking leave to appeal dated 12 July 2018 be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.