Native title year in review 2018 10 Apr 2019 Novel issues to be decided in substantive hearing of ongoing Onslow Salt and BTAC dispute

We reported on the decision of Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd [2017] FCA 1240 in our 2017 Native Title Year in Review ("Remember - native title agreements are contracts!").  In that case, the Federal Court refused Onslow Salt's application for a stay of proceedings brought against it and the State of Western Australia by the Buurabalayji Thalanyji Aboriginal Corporation (BTAC) on various grounds relating to activities at the Onslow Salt Mine in the Pilbara.

Leave was given for Onslow Salt to appeal against that decision.  The appeal was heard on 18 July 2018 and dismissed with costs (Onslow Salt Pty Ltd v Buurabalayji Thalanyji Aboriginal Corporation [2018] FCAFC 118).

Onslow Salt and the State of Western Australia then sought the summary dismissal of BTAC's claim pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth).  The focus of these observations is the decision relating to this application (Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978).

At its core, this is a dispute about whether the extraction of fill material from an area where native title had been recognised amounted to a "future act" that affected native title and if so, the consequences of failure to follow future act validation procedures required by the Native Title Act 1993 (Cth) (Native Title Act).  

Applications for summary dismissal of proceeding refused

Onslow Salt argued that the claims advanced by BTAC must fail because each claim depends on damage to native title and that, pursuant to contractual relationships between Onslow Salt and the Thalanyji People (now represented by BTAC), the Thalanyji People had agreed to the suspension of the operation and enjoyment of their native title over the project area, such that there were no native title rights which could be affected by Onslow Salt's tenure or activities.

The State adopted Onslow Salt's contentions and also asserted that BTAC's claims cannot be sustained for a number of reasons referrable to State legislation.

The Federal Court refused the applications and ordered Onslow Salt and the State to pay BTAC's costs of the proceedings.

Novel issues to be decided

In refusing the applications, the Court ultimately decided that the claims advanced by BTAC, which included causes of action in tortious interference, conspiracy, trespass and breach of contract, are at least arguable, and raise novel issues and significant questions of law and fact that should be considered at trial rather than summarily dismissed.

The Federal Court said that as far as it was aware, there was no authority examining the purported effect of a contractual agreement to suspend native title and no analysis of precisely what this means.  It is at least arguable that native title rights have been permanently affected in respect of the excavated area.  In the Court's view, this was a potentially significant question of law and fact which should be decided at trial. 

The Court also held that BTAC should have the opportunity to advance their argument for "tortious interference with native title rights and interests", and that BTAC's contentions regarding trespass by Onslow Salt were arguable if BTAC can establish that the mining is unlawful.  The Court noted that there has not yet been a case in which an Australian court has ruled that native title rights have been trespassed, but that there was not a good reason BTAC should be shut out from contending this issue at trial.

A trial date for the substantive hearing of the issues is yet to be set.