Gilmour J
This case concerns an application by the Goolarabooloo/Jabirr Jabirr (GJJ) native title claim group (the applicant) to discontinue their claim because of ongoing dispute between the Jabirr Jabirr members and the Goolarabooloo members of the claim group about who are the native title holders for the claim area.
The principal issue the Court considered was whether discontinuing the claim would cause prejudice to the other parties with an interest in the Browse LNG Precinct Project Agreement (PPA) and associated agreements between the state of Western Australia (the state), Woodside Energy Ltd (Woodside) and the GJJ applicant, for the development of the Browse LNG Precinct (the Browse Agreements).
Background
The GJJ claim is the result of the combination of two separate native title claims commenced in 1994 and 1995 and registered in 1999. Divisions within the group about who are the Aboriginal persons who hold the native title rights and interests in relation to the claim area have long existed but became more pronounced around the same time that James Price Point was identified as the preferred site for the Browse LNG Precinct. Disputes were particularly in relation to the manner in which the right to negotiate regarding the Browse LNG precinct should be exercised.
In 2009 the Kimberley Land Council (KLC) signed a Heads of Agreement, acting on its own behalf and on behalf of the GJJ applicant, with the state and Woodside. One of the then named applicants, Joseph Roe, commenced (ultimately unsuccessful) proceedings against KLC challenging its authority to represent the applicant. The other then named applicant, Cyril Shaw, apparently did not support these proceedings, causing the relationship between him and Joseph Roe to become unworkable. By 2010 Joseph Roe had lost influence and the majority of the claim group decided to pursue an agreement with the state and Woodside that would enable the Browse LNG Precinct to proceed and for members of the claim group and their community to receive the benefits provided for in the Browse Agreements. The Court made orders that the present named applicants replace Joseph Roe and Cyril Shaw.
In 2010 the persons comprising the applicant as well as 3 others commenced the Jabirr Jabirr Determination Application (which remains on foot, albeit unregistered). In 2011, Joseph Roe and others on behalf of the Goolarabooloo Families commenced the Goolarabooloo Families Determination Application, which also did not meet registration requirements because of common membership with a registered claim over the same area. As with the Jabirr Jabirr claim, that application still remains on foot. This same group then applied to be joined as respondents to the GJJ claim with a view to having it dismissed. The KLC then wrote to Counsel for the Goolarabooloo Families suggesting the GJJ determination application be amended to remove the Goolarabooloo Families from the claim group description, so they could seek to register their own claim. Counsel for the Goolarabooloo Families responded proposing that the GJJ claim be discontinued so that fresh claims, notably the Jabirr Jabirr Determination Application and Goolarabooloo Families Determination Application, could satisfy registration. It was clear from this correspondence that their intention was to acquire the right to negotiate in relation to the proposed compulsory acquisition of their native title rights and interests.
In May 2012, the GJJ applicant sought leave to amend the GJJ application to remove Goolarabooloo (and other) apical ancestors from the claim group description, which the state and Woodside opposed on the grounds that this would essentially create a new claim group comprising the Jabirr Jabirr descendants. In response the KLC called a meeting of JJ descendants who passed a resolution to withdraw the amendment application and make a discontinuance application (June 2012 Discontinuance Application). On 14 June 2012, the state suspended all benefits that would be payable under the PPA on the basis that discontinuing the GJJ claim would enable members of the claim group to register new and separate claims and oppose the takings, the precinct notices and project rights, which it was alleged would constitute a breach of the PPA. On this same day, the June 2012 Discontinuance Application was dismissed by consent.
Owing to defects in the second notice of intention to take land (issued after the first such notice was declared by the WA Supreme Court to have been invalid), a new (third) notice of intention to take land was issued by the state on 5 December 2012 under s 29 Native Title Act 1993 (Cth) (NTA). On 5 and 6 February 2013, the KLC convened a further meeting of the GJJ claim group during which a resolution was passed to do all things necessary to seek to discontinue the GJJ claim by no later than 10 April 2013. The relevance of this date is that it is within four months of the notification day for the (third) notice of intention to take land. A person who is, within 4 months of the notification day, a registered native title claimant in relation to the relevant area becomes a native title party: s 30(1) NTA.
The submissions
The applicant submitted that by reason of the ongoing dispute between the Jabirr Jabirr members and the Goolarabooloo members of the GJJ claim group about who are the native title holders for the GJJ claim area and the irreconcilable differences between the claims made in each of the GJJ, Jabirr Jabirr and Goolarabooloo Families determination applications, it is both clear that both groups wish to pursue separate native title applications and highly unlikely that the current application could progress towards a successful native title outcome.
The parties opposing the application to discontinue the claim – including the state and Woodside – submitted, broadly speaking, that to discontinue the claim before 18 April 2013 would result in adverse consequences for parties, including:
Delay and adverse effect upon the proposed taking of interests in land within and for the purposes of the Browse LNG Precinct, which the GJJ claim group had already consented to in the PPA;
The delivery of benefits to the GJJ claim group and Kimberley Indigenous people under the Browse Agreements would be put at risk;
The PPA becomes untenable if there is no ‘Native Title Party’ to the agreement. It was also submitted that this would be a breach of the applicant’s contractual obligations under the PPA.
The parties opposing the application submitted that if the claim was discontinued before 18 April 2013, new native title claims could potentially be registered. This would mean that the state and Woodside would have to negotiate with new claimants in relation to future acts under the NTA, specifically the intention to compulsorily acquire interests in the land, including any native title rights and interests. The state contended that this was the collateral purpose of the applicant, as it would resolve dispute within the GJJ claim group, which amounts to an abuse of process.
Consideration
The Court considered the leave to discontinue principles adopted by the court in a number of native title cases, giving careful consideration to whether it would prejudice the interests of the state and other parties. Justice Gilmour noted that the GJJ applicant entered into the Browse Agreements and Heads of Agreement with the authorisation of the entire claim group, despite the existence, for a number of years, of division within the claim group. The state and other parties were entitled to conduct themselves in reliance on those contractual warranties, specifically that the applicant would not object to the future act comprising the taking of land subject to native title rights and interests. His Honour said that seeking leave to discontinue the GJJ claim, with a view to putting members of the claim group in a position to oppose the takings, is arguably a breach of the PPA.
His Honour took into account the considerable public expense– in the order of $42 m, $16 m of which was recouped from Woodside – as well as the time of senior public officers arising from the state’s engagement with procedural rights conferred on the applicant. $5m of benefits had already been provided to the GJJ claim group. Consideration was given to potential losses to the claim group, Aboriginal people in the Kimberley and the state’s economy.
Although the Court had little doubt that the Goolarabooloo want to achieve a place at the negotiation table as a registered applicant to generally oppose the Browse LNG Precinct, Justice Gilmour rejected the general submission that this amounted to an abuse of process given it was not the only reason for seeking to discontinue the GJJ claim. His Honour said that an application may be discontinued, but in a way that does not cause prejudice to the state.
His Honour observed that internal intra-Indigenous divisions were not uncommon within a native title claim group and that the existence of a claim group is not based on the contemporary state of relations between members of the group; rather it is based on common or group rights and interests defined by the traditional law and customs. The Court noted that at no point was it asserted by the applicant that the claim group was not in fact a native title claim group as recognised under traditional law or custom.
Conclusion
The Court concluded that discontinuance before 18 April 2013 would cause significant injustice for the state, Woodside, the Indigenous people of the Kimberley and the GJJ claim group itself. The Court ordered that the applicant and respondent parties participate in mediation with a view to resolving outstanding issues under the Browse LNG PPA.
The Court noted that it was a real risk that the opportunity to secure Woodside as a proponent may be lost. Justice Gilmour noted media reports on 12 April 2013 (four days after this proceeding) confirming that Woodside had decided not to proceed with its involvement in the Browse LNG Precinct, however his Honour said this fact does not change the court’s decision on the discontinuance.