In this matter the Court ordered that the respondents’ applications seeking dismissal of the applicant’s claim pursuant to section 31A Federal Court of Australia Act 1976 (Cth) be dismissed and the respondents pay the costs of the applicant to be assessed if not agreed.
The claimants in this dispute were the Thalanyji peoples whose native title is held on trust by the Buurabalayji Thalanyji Aboriginal Corporation (BTAC). The respondents included Onslow Salt and the State of Western Australia (the State). The salt mining area concerned is located southwest of the town of Onslow in Western Australia.
The Court considered whether BTAC’s claim raised new issues surrounding the existence of, and interference with, native title rights and interests. BTAC’s application was filed in December 2017. The previous proceeding Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd [2017] FCA 1240 concerned an application by Onslow Salt to stay BTAC’s proceedings and instead rely upon the dispute resolution clause (DRC) within the contract in dispute. In that proceeding, the Court ordered that the stay application should be refused.
McKerracher J set out in detail what is required in order for the Court to be satisfied that the prosecuting party has no reasonable prospects of prosecuting the proceeding or part of the proceeding. The claim does not need to be hopeless for it to have no ‘reasonable prospects’, and a ‘reasonable prospect of success’ is one which is real, not fanciful. In deciding this, the court does not conduct a mini-trial based on incomplete evidence, but instead critically examines the available materials to decide whether there is a real question of law or fact that should be decided at a trial. A dismissal cannot apply to a real question of law that is serious, important, and difficult or is novel.
BTAC’s pleaded case
[5] McKerracher J observed that ‘BTAC’s case is undoubtedly novel’ and then discussed their substituted statement of claim (SSOC) filed 22 December 2017, noting that pleadings had not been filed by the respondents in response to the current form of the SSOC. BTAC’s pleaded case is set out in detail at paragraph [5](a)–(o). The causes of action that flow from the facts asserted by BTAC are set out at paragraph [6](a)–(f). [7] BTAC also sought damages for the loss and damage suffered including exemplary damages for the causes of action in intentional interference with native title rights, trespass and tortious conspiracy; damages and restitutionary damages for breach of contract; and compensation on just terms pursuant to division 5 of part 2 of the NTA.
[8] Onslow Salt contended that BTAC’s claim failed because at the relevant time the Thalanyji people had surrendered their claim to native title. They relied on the contractual relationship between the parties and argued that the parties’ rights were controlled by those various instruments.
[10] Onslow Salt argued that the existence of native title, and entitlements for compensation for impact upon it, is determined by the legal rights and not the use of the relevant area citing Western Australia v Ward (2002) 213 CLR 1 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [78]. Onslow Salt argued that an objective inquiry to identify and compare two sets of legal rights is required. Even if the use of the land is unlawful, its interaction is determined solely by the legal rights each party has in the land. Firstly, Onslow Salt stated that the Development Deed and the Future Act Agreement suspended the Thalanyji people’s native title rights. Secondly, the 2008 Determination specified that the native title rights were subject to Onslow Salt’s rights. Onslow Salt referred to the ‘non-extinguishment principle’ of s 238 NTA, which enables suspensions rather than extinguishment of native title. They argued that the parties were seeking to implement a contractual equivalent to this principle.
[15] McKerracher J observed that so far as he was aware there is no authority examining the purported effect of a contractual agreement to suspend native title ‘and no analysis of precisely what that means’. [16] His Honour pointed out that the removal of 10 million cubic metres of fill was a very substantial amount. Even if native title rights could not be exercised in the Project Area during the period of ‘suspension’, the large removal to an offsite area means that the native title rights were forever lost in respect of that location. McKerracher J stated that it this was a sufficient enough reason for the matter to proceed to trial as there was a potentially significant question of law and fact to be determined.
Other interests
[20] Onslow Salt also argued that BTAC gave up its rights in the 2008 Determination. In that Determination, various ‘other interests’ were identified as taking priority where there is inconsistency (or an operational inconsistency). In instances of no inconsistency (e.g. a native title right to hunt in an area and a miner’s right to excavate that area) the native title right would continue. However, in a case of inconsistency (e.g. a native title right to protect an area from harm and a miner’s right to excavate) then the rights of Onslow Salt would prevail.
[22] McKerracher J once again noted that there were difficult factual and legal questions to solve. His Honour explained that BTAC argued the conditions (12 and 13) of the Mining Lease were breached in the removal and sale of the fill material. Also, the Additional Agreement could not authorise the conduct because of requirements in the State Agreement for detailed proposals and approval of expansion or modifications concerning the Company’s operations. [23] BTAC argued that the conditions and stipulations attached to the Mining Lease did not authorise the removal of the fill material or its sale to Chevron but would require the non-disturbance and or rehabilitation of the site.
Interference with native title rights
[26] Onslow Salt contended that the claim of interference with native title had no foundation. They argued that ‘tortious interference with native title rights and interests’ is a cause of action that does not exist in law.
[29] BTAC responded by acknowledging the novel nature of the tort, but explained it was unsurprising considering the late recognition and legislation of native title and that the claim proceeds as an incremental and analogical development of the common law as discussed in Perre v Apand Pty Ltd (1999) 198 CLR 180 per McHugh J at [93]–[94], Gummow J at [199] and Hayne J at [333].
Onslow Salt stated in reply that many of the necessary elements needed for ‘tortious interference’ were not present and that the loss and damages resulting from such a tort in native title would be unsustainable.
[30] BTAC argued that:
For the purposes of an application for summary dismissal of a proceeding that it was sufficient to note that a tortious act occurred due to direct loss and damage and that the rights of BTAC could have a character similar to an infringement of proprietary or possessory interests in property.
When allowance is made for the fact that the pleaded tort arises from the recent recognition of native title rights, it is appropriate to proceed by analogy with existing principles of tort law that focus on the right or interest being protected, rather than the historical exegesis of torts as received from English law.
[31] BTAC further argued that:
…in relation to the contention that ‘the right to negotiate claim’ is a confused claim for loss and damage, it must be noted that it is at least arguable that the pleaded conduct of Onslow Salt in the removal of the fill material and causing or enabling Chevron to remove the fill material for reward, infringed the native title rights and interests because the removal of such a vast body of material is inconsistent with present but also any future enjoyment of native title rights and interests.
[31] McKerracher J observed that ‘it is arguable, in my view, that, as such, a measure of the loss caused was the value of this lost opportunity to bargain for access to the land and the removal of the material,’ a concept of loss comparable to that recognised in Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332. McKerracher J then further observed that ‘there may be a number of hurdles to overcome to before BTAC could ultimately succeed on this contention but it should have the opportunity to advance the argument.’
Trespass
[32] Onslow Salt contended that the claim regarding trespass was ‘short and ambiguous [and] foredoomed to fail’. They stated that the Thalanyji people’s native title rights are insufficient to base any claim in trespass as they did not have right to exclusive possession. [34] Onslow Salt further contended that the authorisation was lawful and therefore prevents any trespass claims and sought to rely upon Coco v The Queen (1994) 179 CLR 427 per Mason CJ, Brennan, Gaudron and McHugh JJ at 436. [35] Onslow Salt further argued that the activities complained of were authorised by law. [36] McKerracher J once again observed that there is a debate about the lawfulness of the removal of the fill material (see paragraphs [36]–[39]).
Conspiracy
[40] McKerracher J observed that:
Once again, the claim here is framed solely in relation to impact on native title. Again, in my view, to the extent that the complaint about this claim turns on Onslow Salt’s native title contentions, I am unable to accept those contentions on a summary basis.
Conspiracy is the agreement of two or more persons to do an unlawful act or do a lawful act by unlawful means. It can be established without evidence of an express agreement between parties. McKerracher J noted that BTAC would find it difficult to establish ‘intent to injure’ which is one ground of tortious conspiracy. [41] To do so would mean proving that Onslow Salt must have acted with ‘the sole or predominant purpose of injuring the claimant’ and that they did so to directly cause claimant damage, rather as an indirect result.
[43] McKerracher J stated that while the unlawfulness aspect of this claim may not be BTAC’s strongest point it was arguable and should not be a basis for a summary judgment. [45] His Honour explained that it could be argued that it was inevitable that the highly profitable activity for Onslow Salt and the benefit to Chevron could only possibly result in injury to BTAC, with a permanent consequence to its native title.
Breach of Contract
[48] As outlined above, BTAC pleads that Onslow Salt’s actions were in breach of the Development Deed and the Future Act Agreement. [49] His Honour observed that: ‘As Onslow Salt points out, these claims also turn on the native title contention which I am not prepared at this stage to summarily dismiss.’
[50] McKerracher J observed that:
Once again, not only do I consider that the native title argument should go to trial, but I also consider that the debate about whether the removal of the fill material was authorised by the Mining Lease should go to trial. The contention is that Onslow Salt promised by contract to consult with BTAC, but failed to do so. Therefore, BTAC lost the ability to negotiate for the protection of the land. BTAC pleads an implied term in the Development Deed and the Future Act Agreement that Onslow Salt would not remove and sell material from the Salt Mining Area other than material authorised to be removed and sold by the Mining Lease. That contention is arguable.
At paragraph [51] McKerracher J dismissed Onslow Salt’s application.
The State
The State’s contentions are set out in paragraphs [52]–[90] with McKerracher J concluding that: [91] ‘None of the remaining complaints by the State raise matters which are not dependent on those arguments I have already rejected above’ and concluded that [92] he was not prepared to dismiss the whole or any part of the SSOC or the proceedings instituted by BTAC and ordered that the two interlocutory applications seeking summary judgment should be dismissed with costs.