McKerracher J
In this decision, McKerracher J made orders for three companies in the Fortescue Metals Group (FMG) (Fortescue Metals Group Ltd, Pilbara Infrastructure Pty Ltd and FMG Pilbara Pty Ltd) to be joined as respondent parties to the Yindjibarndi native title claim proceedings in Western Australia. The companies held a range of licences and tenements within the claim area, including special rail licenses, mining tenements, and an exploration licence. The Court has the power under s 84(5) of the Native Title Act 1993 (Cth) (NTA) to join a person as a party to 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.
Submissions
The native title party submitted that the FMG companies’ interests could not be affected by a determination of native title rights, and so there was no reason for them to be joined as parties. It argued that this was because the FMG companies’ interests would prevail over any native title rights anyway, and the mining leases were granted subject to the condition that the native title parties be granted access in the claim area. It further argued that a greater number of parties would make a negotiated settlement more difficult.
Fortescue submitted that as an applicant for an exploration licence it had sufficient interest for the purpose of s 84(5) of the NTA. Furthermore, that FMG planned to incur, and had already incurred, significant capital expenditure constructing infrastructure within the claim area.
Decision
McKerracher J held that a person need not have a ‘proprietary’ interest of the kind described in s 253 of the NTA in order to be joined as a party. His Honour held that a broader range of interests could be considered in applying s 84(5): any interest that is ‘not indirect, remote or lacking in substance… [and that is] capable of clear definition and [is] of such a character that it may be affected in a demonstrable way’ by a native title determination.
Accordingly, McKerracher J found that the FMG companies had interests that would be affected by a determination of native title. This is because a positive native title determination could oblige them to pay compensation to the native title holders under the Mining Act 1978 (WA). A negative determination, by contrast, would mean that the access conditions imposed by the mining tenements would be nullified. His Honour considered that it was in the interests of justice that the companies be given the opportunities to protect these interests. He also considered that the Court would benefit from having a ‘contradictor’ to help test the claimants’ case. He held that the ongoing disputation between the claimants and the FMG companies was not a factor that ought to prevent them from becoming parties.