Traditional Owners win Federal Court appeal

January 16, 2018
Traditional Owners of the Mount Jowlaenga area in Western Australia’s Kimberley have won their appeal.

The Traditional Owners of the Mount Jowlaenga area in Western Australia’s Kimberley have won an appeal in the Federal Court against miner Sheffield Resources and the West Australian government over one of the country’s biggest mineral sands deposits.

The win means the Traditional Owners have succeeded in preventing Sheffield Resources from constructing its multi-million dollar Thunderbird project on their land without having reached agreements with them in key areas, including compensation and the management of Aboriginal heritage sites.

The appeal centred on whether the obligation by companies to negotiate in good faith in relation to negotiations under the Native Title Act ever ended.

In a majority decision handed down in Melbourne on December 21, the Full Federal Court dismissed Sheffield Resources’ submission that it was no longer required to meet the good faith requirement in its negotiations after it had applied to the Native Title Tribunal for a determination. It found the good faith obligation was “not explicitly subject to any particular point in time or cut-off date”.

The Court’s decision overturned a previous decision by a single judge of the Federal Court, who had ruled the law did not “carry with it the express or implied obligation to negotiate in good faith” once a matter was before the National Native Title Tribunal.

That judgement allowed the Western Australian government to give the project the green light even though there was no agreement with the Mount Jowlaenga people, who said at the time the decision meant the Native Title Act was being used to take advantage of them rather than protect them.

The Kimberley Land Council said the Full Court’s decision acknowledges for the first time that native title parties are protected by the good faith obligation at all stages of the negotiation, even after an application is made to the National Native Title Tribunal for a decision on a matter.

It said the Full Court’s decision is fundamental to native title parties’ ability to give genuine consent to agreements for resource development on their lands.

Kimberley Land Council Chief Executive Officer Nolan Hunter said “The Kimberley Land Council will always support and stand up for the native title rights of Traditional Owners in the Kimberley.

“[This] decision makes it clear that companies that want to operate on Aboriginal lands must negotiate in good faith at all times.

“The right to negotiate is a bedrock of the Native Title Act and is crucial in redressing the disparity between the strength of a mining company as opposed to a native title party.

“This is a landmark decision that is fundamental to the ability of Traditional Owners to give their genuine consent to agreements regarding use of their traditional lands.”

Sheffield Resources wants to build the Thunderbird Mineral Sands Project on the Dampier Peninsular about 60 kilometres west of Derby, with production to begin next year.

In a statement to the Australian Securities Exchange after the ruling, it said: “The decision to grant the mining lease to Sheffield has only been deferred and not been set aside by the court. The company does not currently expect a material impact on the Thunderbird Project’s timeline.”

The Kimberley Land Council said the case will now be referred back to the National Native Title Tribunal as “there is still no agreement with the Mount Jowlaenga Traditional Owners for the operation of the Thunderbird mine”.

“This is not about opposing development,” Hunter said. “This is about making sure Traditional Owners are able to give genuine consent to mining proposals that impact their traditional lands.

“In the past many of the companies operating in the Kimberley have acted in good faith and worked together with Traditional Owners to put an agreement in place.

“We anticipate that the state government when supporting industry and development understands that mining companies under the Native Title Act have a responsibility and a requirement regarding their conduct when engaging with native title parties.

“In relation to the proposed Thunderbird mine, there is no agreement in place to protect the Mount Jowlaenga Traditional Owners cultural heritage, to compensate them for the impacts on their native title, or to ensure their participation in the project via employment or contracting.” 

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