Citic Pacific Mining Management Pty Ltd v Yaburara and Coastal Mardudhunera Aboriginal Corporation

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CITIC PACIFIC MINING MANAGEMENT PTY LTD -v- YABURARA & COASTAL MARDUDHUNERA ABORIGINAL CORPORATION [2020] WASC 332
CORAM:   MASTER SANDERSON
HEARD:   18 AUGUST 2020
DELIVERED          :   15 SEPTEMBER 2020
PUBLISHED           :   15 SEPTEMBER 2020
FILE NO/S:   CIV 1416 of 2020
BETWEEN:   CITIC PACIFIC MINING MANAGEMENT PTY LTD
Applicant
AND
YABURARA & COASTAL MARDUDHUNERA ABORIGINAL CORPORATION
First Respondent
WIRRAWANDI ABORIGINAL CORPORATION
Second Respondent
KEVIN COSMOS
Third Respondent
ROBERT BOONA
Fourth Respondent
VALERIE HOLBOROW
Fifth Respondent

Catchwords:

Native title - Which party entitled to receive funds payable under the land use agreement - Turns on own facts

Legislation:

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Native Title Act 1993 (Cth)

Result:

Directions given

Representation:

Counsel:

Applicant	:	M McKenna
First Respondent	:	No appearance
Second Respondent	:	C Terren
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance

Solicitors:

Applicant	:	Gilbert + Tobin
First Respondent	:	No appearance
Second Respondent	:	Roe Legal Services
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance

Case(s) referred to in decision(s):

Holborow v State of Western Australia [2002] FCA 1428
McGlade v Native Title Registrar [2017] FCAFC 10
Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551
Weribone on behalf of the Mandandanji People v State of Queensland (No 2) [2013] FCA 485

MASTER SANDERSON:

By originating summons filed 23 March 2020 the applicant sought the following orders:
1.Pursuant to Order 17 Rule 1 of the Rules of the Supreme Court 1971 (WA), the First, Second, Third, Fourth and Fifth [Respondents] state the nature and particulars of their 1 2 3 respective claims to the monies payable under the Cape Preston Project Deed (YM Compensation) (YM Deed) and maintain or relinquish the same and abide by such order as may be made herein in due course.
2.Directions be given as to the conduct of the hearing of the respective claims of the First, Second, Third, Fourth and Fifth [Respondents].
3.The [Applicant's] costs of and incidental to this Originating Summons be deducted from the sum payable by the [Applicant] under the YM Deed.

Although the originating summons is not happily worded, what the applicant was seeking was interpleaded relief. In other words, the applicant was possessed of a sum of money which was the property of, or was subject to the direction of, one or other of the respondents. Because the applicant was unable to determine to whom the money should be paid, it sought to pay the money into court and to let various parties who might have a claim on the funds determine their respective interests. How the matter reached this point is the subject of these reasons.
Before recounting the facts and the procedural history I should note that both the first and second respondents have as their registered office the same address in Karratha. Both the third and fourth respondents are also resident in Karratha. The fifth respondent is resident in Maroubra in New South Wales.
The application was supported by an affidavit of Damien John Piro sworn 19 March 2020. Nothing in this, or indeed any of the affidavits filed in relation to the application, is controversial. What follows then is a recitation of the relevant facts taken from various affidavits. As and when necessary I will identify the person who has sworn the affidavit from which relevant evidence is taken. But the main affidavit is that of Mr Piro.
Mr Piro is the Principal Heritage and Indigenous Affairs Advisor to the applicant.[1] The applicant operates the Sino Iron Project at Cape Preston (the Project). The Project mines iron ore for export with a total extraction limit of two billion tons of magnetite ore. It is located 100 kms south west of Karratha.[2] In order to develop the Project and secure the required land access and approvals CITIC Pacific Mining Management Pty Ltd (CITIC) and its related entities and Sino Iron Pty Ltd negotiated indigenous land use agreements with the relevant native title claimants at the time. These were the Kuruma Marthudhunera native title claimants (the KM), the Yaburara and Mardudhunera native title claimants (the YM) and the Wong‑Goo‑Tt‑Oo native title claimants (the WGTO).[3] On or about 25 September 2008, all the relevant parties executed the Cape Preston Project Deed (ILUA) (ILUA1) and the Cape Preston Project Deed (Mardie ILUA) (ILUA2).[4] On or about the same date, the relevant parties entered into individual compensation agreements with each of the KM, the YM and the WGTO.[5]
[1] Affidavit of Damien John Piro sworn 19 March 2020 [1].
[2] Affidavit of Damien John Piro sworn 19 March 2020 [5].
[3] Affidavit of Damien John Piro sworn 19 March 2020 [6].
[4] Affidavit of Damien John Piro sworn 19 March 2020 [7].
[5] Affidavit of Damien John Piro sworn 19 March 2020 [8].
Also on or about 25 September 2008, CITIC and other relevant parties and the WM entered into the Cape Preston Project Deed (YM Compensation) (the YM Deed) for the payment of compensation to YM in exchange for native title approval to develop the Project.[6] On 4 June 2015, the YM Deed was varied (the Amendment Deed).[7] The parties to the YM Deed and the Amendment Deed are the applicant, Sino Iron; Pastoral Management Pty Ltd (PMPL) a related entity of the applicant; and the YM Native Title Party which is defined as the third, fourth and fifth respondents for and on behalf of themselves and the Yabuara and Mardudhunera People in the native title application NNTT Number WC96/89; and the YM Corporation which is defined as YACMAC.[8]
[6] Affidavit of Damien John Piro sworn 19 March 2020 [9].
[7] Affidavit of Damien John Piro sworn 19 March 2020 [10].
[8] Affidavit of Damien John Piro sworn 19 March 2020 [12].
Clause 5.4 of the YM Deed sets out the payments to be made to the YM by the applicant and the manner in which those payments are to be made. The clause reads as follow:
(a)The YM Parties will establish the YM Trust and direct the Project Participants to make Payments to the YM Trustee for and on behalf of the YM Parties and the YM People.
(b)The amounts to be paid by the Project Participants under clauses 5.1 and 5.2 will be paid by the Project Participants to a bank account which is operated by the YM Trustee for and on behalf of the YM People as Notified to the Project Participants by the YM Parties from time to time.[9]
[9] Affidavit of Damien John Piro sworn 19 March 2020 [15]; Annexure DJP-1 (page 46).
Under the YM Deed, the YM Parties are in turn defined as 'each of the Native Title Party and the YM Corporation'. The Native Title Party is defined as:
the persons whose names appear from time to time on the register of native title claims as the people who are taken to be representative of the claimants in relation to the Native Title Application for and on behalf of themselves and the YM People and includes the YM People.[10]
[10] Affidavit of Damien John Piro sworn 19 March 2020 [17]; Annexure DJP-1; (page 35).
The YM People is defined as:
(a)the Native Title Party and all persons on whose behalf the Native Title Application is made;
(b)any Aboriginal person or persons determined:
1under an approved determination of native title to be a native title holder as a Yaburara and Mardudhunera person in accordance with the Native Title Application;
2by a court of competent jurisdiction to be a Yaburara or Mardudhunera person; but
(c)does not include the Other Registered Claim Group or a person on whose behalf the KM Native Title Application is made, unless that person is otherwise accepted by the YM Corporation as a member of the YM People.[11]
[11] Affidavit of Damien John Piro sworn 19 March 2020 [18]; Annexure DJP-1; (page 42).
On 27 July 2018, the YM native title claim was determined by the Federal Court (the YM Determination).[12] In the YM Determination, the YM native title applicant nominated the Wirrawandi Aboriginal Corporation (WAC) to hold the YM's determined native title on trust for the native title holders.[13] As at the date of swearing of Mr Piro's affidavit WAC had not assumed the obligations of the Native Title Party under the YM Deed.[14]
[12] Affidavit of Damien John Piro sworn 19 March 2020 [19].
[13] Affidavit of Damien John Piro sworn 19 March 2020 [20].
[14] Affidavit of Damien John Piro sworn 19 March 2020 [21].
As at the date of swearing of Mr Piro's affidavit, CITIC had last received direction from the YM Parties by a letter and email on 31 January 2017 and 11 August 2017.[15] That direction was to a bank account operated by Pascoe Partners Custodian Services Pty Ltd which CITIC understood to be the current YM Trustee. However, Mr Piro says the position is not clear.[16] On his understanding there were three YM Trusts. First, the Yaburara and Coastal Mardudhunera Aboriginal Charitable Trust formed on 30 September 2009. Second, the Yaburara and Coastal Mardudhunera Aboriginal Charitable Trust formed on 17 December 2009 and finally, the Yaburara and Coastal Mardudhunera Aboriginal Discretionary Trust formed on 14 November 2012. Collectively Mr Piro refers to these as the 'YM Trusts'.[17]
[15] Affidavit of Damien John Piro sworn 19 March 2020 [22]; Annexure DJP2-A and B.
[16] Affidavit of Damien John Piro sworn 19 March 2020 [24].
[17] Affidavit of Damien John Piro sworn 19 March 2020 [25].
The applicant's records indicate that in September and October 2017, the applicant and a firm of solicitors, Corser & Corser, the solicitors for the YM and YM Trustee, identified and agreed that the payments under the Deed were due in arrears and not advance, notwithstanding payments had been made in advance prior to that date. The parties further negotiated an interim change to the procedure and timing requirements for the making of payments under the YM Deed.[18] The YM proposed that the year five payment that was to become due and payable under cl 5.2 would be split into two payments to be paid in February 2018 and February 2019. The amount of the payment was $1,400,000.[19] This agreement is evidenced by an exchange of correspondence between the applicant and Corser & Corser.[20] There can be no doubt agreement was reached and there is also no issue as to the terms of that agreement.
[18] Affidavit of Damien John Piro sworn 19 March 2020 [26].
[19] Affidavit of Damien John Piro sworn 19 March 2020 [27].
[20] Affidavit of Damien John Piro sworn 19 March 2020 [28]; Annexure DJP-3.
On 24 January 2019, the applicant received a communication from Pascoe Partners purporting to be an invoice for the payment of $700,000 for the year five annual payment under cl 5.2 of the YM Deed.[21] However, prior to receiving the invoice Mr Piro had been told by Richard Cosmos, the chairperson of YACMAC, that there was no longer a relationship between YACMAC and Pascoe Partners.[22] It then became apparent Pascoe Partners was in dispute with YACMAC as to the YM Trusts. It informed the applicant that it was not engaged by YACMAC but did have a continuing, albeit unspecified, role in relation to the YM Trusts.[23] This is evidenced by a chain of emails and correspondence passing between Pascoe Partners, Mr Piro and members of YACMAC. The relevant documents appear as attachments DJP5 and DJP6 to Mr Piro's affidavit.
[21] Affidavit of Damien John Piro sworn 19 March 2020 [30]; Annexure DJP-4.
[22] Affidavit of Damien John Piro sworn 19 March 2020 [32].
[23] Affidavit of Damien John Piro sworn 19 March 2020 [33].
On 7 February 2019, the applicant sent a letter to YACMAC inviting the YM Parties to issue an invoice for the second half of the year five annual payment.[24] On 8 February 2019, the applicant received a communication from YACMAC purporting to be an invoice for the payment of $700,000 of the year five annual payment under cl 5.2 of the YM Deed.[25] This invoice was not compliant with the YM Deed or the agreement reached between the applicant and Corser & Corser because the bank account nominated was not controlled by the YM Trustee and was not the bank set out in the last payment direction received by the applicant from the YM Parties.[26] The applicant requested clarification of the position from YACMAC.[27]
[24] Affidavit of Damien John Piro sworn 19 March 2020 [35]; Annexure DJP-7.
[25] Affidavit of Damien John Piro sworn 19 March 2020 [37].
[26] Affidavit of Damien John Piro sworn 19 March 2020 [38]; Annexure DJP-8.
[27] Affidavit of Damien John Piro sworn 19 March 2020 [40] and [41]; Annexure DJP-9.
On 10 April 2019, Mr Piro received an email from Mr Cosmos advising that YACMAC was in the process of incorporating a new trust to replace the YM Trusts. The letter directed the applicant not to make any further payments to the YM Trusts and to cease all communications with Pascoe Partners.[28] On 2 May 2019, Mr Piro received an email from Mr Cosmos attaching a letter from YACMAC advising that a new trust had been incorporated to replace the YM Trusts. The fifth respondent, among others, was copied into that email.[29]
[28] Affidavit of Damien John Piro sworn 19 March 2020 [43]; Annexure DJP-10.
[29] Affidavit of Damien John Piro sworn 19 March 2020 [45]; Annexure DJP-11.
On 27 June 2019, Mr Piro received an email from Christopher Derman, the accounts administrator of Pascoe Partners, attaching a letter dated 26 June 2019 requesting the applicant to confirm whether it had made certain payments to the YM Corporation and asking that all further payments owing under the YM Deed be held until the YM Deed was assigned to WAC.[30] On 28 June 2019, Mr Piro forwarded that email to Mr Cosmos seeking clarification of the position.[31]
[30] Affidavit of Damien John Piro sworn 19 March 2020 [47]; Annexure DJP-12.
[31] Affidavit of Damien John Piro sworn 19 March 2020 [49].
Mr Cosmos responded the same day. He provided a copy of a newsletter dated 25 June 2019 he had sent to members of YACMAC regarding the alleged issues the board had experienced with Pascoe Partners relating to the YM Trusts and referring to legal proceedings which had been commenced, aimed at removing Pascoe Partners as the YM Trustee.[32] This was followed by an email of 6 August 2019 from Mr Cosmos to Mr Piro.[33] Mr Cosmos requested the applicant 'release' the payments being held in accordance with the fifth respondent's direction and stating that the fourth and fifth respondents wanted the applicant to continue to hold the payments.[34]
[32] Affidavit of Damien John Piro sworn 19 March 2020 [50]; Annexure DJP-13.
[33] Affidavit of Damien John Piro sworn 19 March 2020 [52].
[34] Affidavit of Damien John Piro sworn 19 March 2020 [53]; Annexure DJP14.
On 6 August 2019, Mr Piro received a phone call from the fifth respondent.[35] The fifth respondent advised Mr Piro that Mr Cosmos was taking time off from his duties at YACMAC for family reasons and that the fifth respondent would be the applicant's point of contact for YACMAC in his absence. The fifth respondent also advised Mr Piro that he should ignore Mr Cosmos' request that payments be 'released'.[36]
[35] Affidavit of Damien John Piro sworn 19 March 2020 [55].
[36] Affidavit of Damien John Piro sworn 19 March 2020 [56].
On 12 August 2019, Mr Piro received an email from Nathan Christophers, the chairperson of WAC.[37] In an attached letter, Mr Christophers said that WAC was 'making arrangements' to assign the Native Title Party's rights and obligations to WAC in accordance with cl 16.2 of the YM Deed and requesting a deed of assignment be provided by the applicant to WAC for execution.[38] On 12 August 2019, Mr Piro received an email from Sabina Schlink, the principal of Thomas Legal.[39] Ms Schlink confirmed the oral advice of the fifth respondent that Mr Cosmos was temporarily no longer the point of contact for YACMAC, that the fifth respondent was the point of contact in his absence and that the applicant was to ignore the direction of Mr Cosmos that the applicant was to 'release' funds. Ms Schlink also said that legal proceedings to remove Pascoe Partners as YM Trustee were 'due to be lodged in the Supreme Court' and she would keep the applicant updated on their progress.[40]
[37] Affidavit of Damien John Piro sworn 19 March 2020 [57].
[38] Affidavit of Damien John Piro sworn 19 March 2020 [58]; Annexure DJP-15.
[39] Affidavit of Damien John Piro sworn 19 March 2020 [60].
[40] Affidavit of Damien John Piro sworn 19 March 2020 [61]; Annexure DJP-16.
On 16 August 2019, Mr Piro received a further email from Mr Christophers. The email concerned the creation of a new YM Trust by YACMAC.[41] Mr Christophers also advised that members of YACMAC had issued a notice of dispute pursuant to the YACMAC rule book regarding the board of director's management of the corporation. He indicated there were concerns regarding the financial management of YACMAC. He also said that WAC and members of YACMAC were in the process of obtaining legal representation to replace YACMAC as appointor of the YM Trust.[42]
[41] Affidavit of Damien John Piro sworn 19 March 2020 [63].
[42] Affidavit of Damien John Piro sworn 19 March 2020 [64]; Annexure DJP-117-A, B and C.
On 18 September 2019, Mr Piro met with Ms Schlink.[43] At that meeting Ms Schlink advised she acted for YACMAC and confirmed YACMAC had sought Pascoe Partner's resignation as trustee of the YM Trusts. She also advised Yaburara and Coastal Mardudhunera Custodian Services Pty Ltd (YACMCS) had been created to act as trustee of the YM Trusts. She said that if Pascoe Partners did not resign, YACMAC intended to commence proceedings to substitute Pascoe Partners as trustee with YACMCS. Ms Schlink also said YACMAC wanted the applicant's financial assistance in resolving the matter either by a direct payment or by releasing all or some of the outstanding payments to YACMCS.[44] The essentials of that meeting were confirmed by Ms Schlink in an email sent to Mr Piro on 19 September 2019. That email was copied to Mr Cosmos and the fifth respondent.[45] It was followed on 24 September 2019 by a further email from Ms Schlink asking whether the applicant would be involved in the dispute between YACMAC and Pascoe Partners.[46]
[43] Affidavit of Damien John Piro sworn 19 March 2020 [66].
[44] Affidavit of Damien John Piro sworn 19 March 2020 [67].
[45] Affidavit of Damien John Piro sworn 19 March 2020 [69]; Annexures DJP18A – F.
[46] Affidavit of Damien John Piro sworn 19 March 2020 [71]; Annexure DJP-19.
On 1 October 2019, Mr Piro received an email from Mr Cosmos regarding the meeting he had with Ms Schlink on 18 September 2019.[47] He repeated Ms Schlink's request for financial assistance from the applicant to YACMAC.[48] On 18 October 2019, the applicant sent a letter to each of the directors of YACMAC requesting a Relationship Committee Meeting to be held on 5 November 2019 and querying whether YACMAC was the valid prescribed body corporate for the applicant to correspond with given the establishment of WAC and the YM prescribed body corporate.[49] Ms Schlink responded with a phone call on or around 24 October 2019. Importantly, she said that she was the only point of contact for YACMAC in the future.[50] The same day Mr Piro received a call from the fifth respondent who confirmed the contents of Ms Schlink's phone call.[51]
[47] Affidavit of Damien John Piro sworn 19 March 2020 [74].
[48] Affidavit of Damien John Piro sworn 19 March 2020 [74]; Annexure DJP-20.
[49] Affidavit of Damien John Piro sworn 19 March 2020 [76]; Annexure DJP-21.
[50] Affidavit of Damien John Piro sworn 19 March 2020 [78].
[51] Affidavit of Damien John Piro sworn 19 March 2020 [79].

On 28 October 2019, Mr Piro spoke with Ms Schlink. Later that day he received a letter from Thomas Legal dated 24 October 2019 informing the applicant that a meeting could not be held as YACMAC had commenced court proceedings to remove Pascoe Partners as trustee of the YM Trusts and was taking advice regarding 'the validity of the Prescribed Body Corporate'.[52]
[52] Affidavit of Damien John Piro sworn 19 March 2020 [80]; Annexure DJP-22.
On 3 December 2019, Mr Piro received an email from Mr Derman. A Ms Priscilla Papertalk (a YM traditional owner) and Mr Christophers were copied to the email.[53] The email forwarded Mr Cosmos' email of 6 August 2019 and two further emails from Jade Wescombe and Raelene Cooper.[54] The gist of the email was that on 6 August 2019 the chairperson of YACMAC had instructed the freeze be lifted and that the scheduled payment be made to Pascoe Partners.[55] This was followed on 9 December 2019 by a copy of an email from Thomas Legal to Ms Papertalk attaching a letter to Ms Papertalk.[56] In the letter Thomas Legal requested that Ms Papertalk cease contacting directors of YACMAC and Pascoe Partners due to the commencement of court proceedings by YACMAC.[57]
[53] Affidavit of Damien John Piro sworn 19 March 2020 [82].
[54] Affidavit of Damien John Piro sworn 19 March 2020 [83].
[55] Affidavit of Damien John Piro sworn 19 March 2020 [84]; Annexure DJP-23.
[56] Affidavit of Damien John Piro sworn 19 March 2020 [86].
[57] Affidavit of Damien John Piro sworn 19 March 2020 [87]; Annexure DJP-24.
Clearly by this stage Mr Piro was thoroughly confused. No one could blame him. The applicant decided it was time to involve its solicitors. The applicant's solicitors are Gilbert + Tobin. On 13 December 2019, Gilbert + Tobin sent a letter to all the relevant stakeholders in the YM Deed.[58] The letter addressed the purported directions received from various YM stakeholders and advised no payments would be made until a valid direction made in accordance with the provisions of the YM Deed was provided to the applicant.[59] This letter provoked a flurry of correspondence and a number of telephone calls.[60] What it did not produce was any document which the applicant regarded as a valid direction made in accordance with the provisions of the YM Deed.
[58] Affidavit of Damien John Piro sworn 19 March 2020 [89].
[59] Affidavit of Damien John Piro sworn 19 March 2020 [90]; Annexure DJP-25.
[60] Affidavit of Damien John Piro sworn 19 March 2020 [92]; Annexures DJP-25 and 27.
Mr Piro concludes his affidavit by confirming the applicant was prepared to make payment of $700,000 to whomsoever was entitled to receive it.[61]
[61] Affidavit of Damien John Piro sworn 19 March 2020 [94].
At this point it is necessary to recount some procedural history. The matter first came on in chambers on 14 April 2020. No party had, as at that date, entered an appearance. However, on the same day the second respondent did enter an appearance through its solicitors, Roe Legal Services.[62] The matter was further adjourned administratively to 26 May 2020. On 18 May 2020, the applicant applied for substituted service in relation to the first and fifth respondents.[63] In relation to the first respondent, the applicant sought an order service be effected by sending a copy of the relevant documents to Mr Cosmos at his residential address in Kununurra and by sending copies of the documents to certain email accounts. In relation to the fifth respondent, service was to be effected by leaving copies of the documents at her residential address in New South Wales.
[62] Memorandum of appearance filed 14 April 2020.
[63] Chamber summons for substituted service filed 18 May 2020.
The substituted service application was supported by two affidavits. The first affidavit was affirmed by Gary Allen Blinco on 14 May 2020. Mr Blinco confirms he served the third and fourth respondents.[64] He attempted to serve the first respondent at its office in Karratha. He found an unrelated party occupying the nominated address.[65] Service could not be effected. The second affidavit is an affidavit of Arabella Zoe Tolé sworn 18 May 2020. Ms Tolé recounts efforts to serve the fifth respondent. In summary, it would appear the fifth respondent was not at her New South Wales residential address. A man who was at that address advised the process server the fifth respondent was in Western Australia and would not be returning to New South Wales 'any time soon'.[66]
[64] Affidavit of Gary Allen Blinco affirmed 14 May 2020 [7] and [12].
[65] Affidavit of Gary Allen Blinco affirmed 14 May 2020 [17] and [18].
[66] Affidavit of Arabella Zoe Tolé sworn 18 May 2020 [8]; Affidavit of Gary Allen Blinco affirmed 15 May 2020 [7] and [12].
On 19 May 2020, I made the substituted service orders sought by the applicant[67]. Affidavits filed by the applicant indicate compliance with those orders. However, as I have said, no appearances have been entered by the first and third to fifth respondents.
[67] Order of Master Sanderson made 19 May 2020.
The second respondent has filed two affidavits. The affidavit of Nathan Ian Christophers is sworn 30 July 2020. Mr Christophers is a director of WAC.[68] Mr Christophers says that on 1 August 1996 the YM People, through three named applicants (being the third, fourth and fifth respondents), commenced a claim for native title under the Native Title Act 1993 (Cth) (the Act) seeking a determination that native title existed over a claim area. This is described as the YM Claim.[69] The first respondent was incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) by the YM People in February 1990.[70] Mr Christophers confirms the incorporation of YACMAC and the fact the parties entered into the YM Deed. Mr Christophers notes that the YM People entered into the YM Deed through YACMAC and the YM applicants for and on behalf of themselves and the YM People as the 'Native Title Party' under the YM Deed.[71]
[68] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [1].
[69] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [7].
[70] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [8]; Annexure NIC-1.
[71] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [11].
Mr Christophers says the YM People and YACMAC created two trusts to hold the payments made under the Cape Preston Project Deed ‑ the YM Charitable Trust and the YM Discretionary Trust.[72] Pascoe Partners Custodian Services were the trustee of both Trusts.[73] Until 2019 the relevant payments under the YM Deed were made to Pascoe Partners in their capacity as the trustee of the Trusts.[74]
[72] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [13].
[73] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [14].
[74] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [15].
Mr Christophers confirms that on 27 July 2018, the Federal Court made the Determination. He says the prescribed body corporate that holds the native title on trust for the YM People is WAC.[75]
[75] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [16]; Annexure NIC-2.
According to Mr Christophers, since the Determination, WAC has sought to have the various agreements and other native title matters of the YM People consolidated to WAC.[76] The 'Native Title Party' is defined in the YM Deed to include the YM applicants by themselves and as representatives of the YM People by reason of their position in the YM Claim. They are said to hold the prospective claimed native title on trust for the YM People.[77] Since the Determination, the YM applicants have ceased to have any position in relation to the YM Claim as that claim is replaced by the Determination. Therefore, the YM applicants do not hold native title on trust for the YM People. Rather, WAC as the prescribed body corporate holds native title on trust for the YM People.[78] The YM applicants are not authorised by WAC to continue with any actions where they purport to hold the native title of the YM People or to act as representatives of the YM People on native title matters.[79]
[76] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [18].
[77] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [19].
[78] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [20].
[79] Affidavit of Nathan Ian Christophers sworn 30 July 2020 [21].
Clause 16.2 of the YM Deed reads as follows:
16.2Successful determination – assignment to prescribed body corporate
(a)If there is a determination under the NTA:
(1)that the Native Title Party holds native title in the claim area; and
(2)that the native title rights are held in trust by a prescribed body corporate under s56 of the NTA;
then the Native Title Party may assign the rights and obligations under this Deed to the prescribed body corporate.
(b)If the Native Title Party assigns its rights and obligations under this Deed to a prescribed body corporate under clause 16.2(a) then the prescribed body corporate will be entitled to exercise all the powers, rights and benefits of the Native Title Party under this Deed and will become obliged to observe and perform all obligations of the Native Title Party under this Deed.[80]
[80] Affidavit of Damien John Piro; Annexure DJP-1 (page 61).
Mr Christophers says, and I accept, the third respondent consents to the assignment or the assumption of the 'Native Title Party role by WAC'.[81]
[81] Affidavit of Nathan Ian Christophers [23].
On 22 June 2020, the board of directors of WAC resolved as follows:
(a)Wirrawandi Aboriginal Corporation RNTBC authorises and approves the execution of a Deed Poll of Assumption in substantially the same terms as in the form provided by Roe Legal Services assuming all rights and obligations of the 'Native Title Party' under the Cape Preston Project Deed.
(b)The Board of Directors of Wirrawandi Aboriginal Corporation RNTBC, upon the assumption of the rights and obligations of the 'Native Title Party' under the Cape Preston Project Deed, directs that the funds owing by CITIC Pacific Mining Management Pty Ltd and its project partners under the Cape Preston Project Deed and subject to the Interpleader proceedings with Supreme Court Number CIV 1416 of 2020 be paid into the Yaburara and Coastal Mardudhunera Aboriginal Charitable Trust.[82]
[82] Affidavit of Nathan Ian Christophers [24].
On 29 June 2020, WAC executed a Deed Poll of Assumption (Deed Poll). A copy of that Deed Poll appears as attachment NIC‑3 to Mr Christophers' affidavit. On 30 July 2020, the second respondent's solicitors provided a copy of the Deed Poll to the applicant. They also provided a direction that funds owing by the applicant and its project partners under the Cape Preston Project Deed and subject of the interpleaded proceedings be paid to the YM Charitable Trust.[83]
[83] Affidavit of Nathan Ian Christophers [27]; Annexure NIC-4.
WAC has attempted on numerous occasions to convince YACMAC to remove its objection to the payment of funds to the YM People under the YM Deed.[84] As part of its efforts in this regard, in mid 2019 a petition was circulated to the members of YACMAC which sought, among other things, to direct YACMAC to authorise the applicant to pay outstanding payments under the Cape Preston Project Deed to the YM Charitable Trust (Petition).[85] The Petition was signed by 94 of YACMAC's 161 members. However, to date no action has been taken by YACMAC in respect of the petition.[86] The second respondent also relies on an affidavit of Christopher Derman sworn 30 July 2020. Mr Derman is the accounts administrator at Pascoe Partners Accountants and Pascoe Partners Custodian Services Pty Ltd.[87] Mr Derman confirms that Pascoe Partners Custodian Services Pty Ltd (which he refers to as 'the trustee') is the trustee for both the YM Charitable Trust and the YM Discretionary Trust.[88] He confirms that to date the Trusts have received $4,575,000 under the YM Deed. Of that amount, $2,475,000 has been paid to the YM Charitable Trust and $2,100,000 has been paid to the YM Discretionary Trust.[89] Mr Derman says on 24 January 2019 he issued an invoice to the applicant for the second half of the five year payment.[90] Mistakenly he issued the invoice on the YM Discretionary Trust template instead of the YM Charitable Trust.[91] On 26 February 2019, he reissued the invoice in the name of the YM Charitable Trust.[92] Mr Derman confirms that Pascoe Partners Custodian Services remains the trustee of the YM Charitable Trust.[93]
[84] Affidavit of Nathan Ian Christophers [30].
[85] Affidavit of Nathan Ian Christophers [31].
[86] Affidavit of Nathan Ian Christophers [32]; Annexure NIC-5.
[87] Affidavit of Christopher Derman sworn 30 July 2020 [1].
[88] Affidavit of Christopher Derman sworn 30 July 2020 [4]; Annexure CD-1.
[89] Affidavit of Christopher Derman sworn 30 July 2020 [8]; Annexures CD-2 – CD-6.
[90] Affidavit of Christopher Derman sworn 30 July 2020 [16].
[91] Affidavit of Christopher Derman sworn 30 July 2020 [17].
[92] Affidavit of Christopher Derman sworn 30 July 2020 [18]; Annexure CD-7.
[93] Affidavit of Christopher Derman sworn 30 July 2020 [20].
At the hearing of the application the second respondent moved for the following orders:
1 A declaration that the Second Respondent is the 'Native Title Party' in the Cape Preston Project Deed (YM Compensation) entered into by the parties on or about 25 September 2008 (as amended by the Amendment Deed dated 4 June 2015) (YM Deed).
2 A declaration that the direction under clause 5.4 of the YM Deed given by the Second Respondent to the Applicant on 30 July 2020 (Direction) is effective notice pursuant to clause 5.4(b) of the YM Deed.
3 A declaration that the Applicant is justified in paying and must pay the amounts owing under clause 5.2 of the YM Deed pursuant to the Direction.
4 The Applicant and Second Respondent's costs of these proceedings be deducted and paid forthwith from the amounts owing under clause 5.2 of the YM Deed.[94]
[94] Second respondent's minute of proposed orders filed 18 August 2020.
While the applicant had no objection to orders being made in terms proposed by the second respondent it was not entirely sure the orders proposed properly reflected the interpleader proceedings. As a rule, a party who interpleads pays the funds they are holding into court thereby discharging any obligation it has to any party with respect to those funds. The court then allows parties with competing claims to the funds to make their case. Orders are made as between those competing parties. The orders proposed in this case do not reflect that procedure. It was, of course, of prime importance to the applicant to ensure once it handed over funds – be it by way of payment into court or payment at the direction of the court – it was in all respects protected. Given that only the second respondent entered an appearance the applicant was concerned orders made ex parte may be the subject of an application to set aside those orders. Not only did the applicant not wish to participate in any possible action of that nature, it did not want to be at risk of being effectively liable to some other party in an amount it had already paid to the second respondent. As a result of the entirely understandable position of the applicant, much of the debate at the hearing related to the form of orders that should actually be made.
The reason why counsel for the applicant was, with some hesitation, prepared to accept (he was not in a position to consent to) the form of orders proposed by the second respondent was that it clarified for the applicant where any future payments might be made. If an order was made that the funds be paid into court, consistent with usual interpleader practice, then when any future payment was to be made, the applicant could not be certain as to who was the proper party to whom it should make payment. It might be faced with the necessity to take interpleader proceedings each time it wished to make a payment. While that might demonstrate an excess of caution, the applicant's position is not unreasonable. It is parting with sums of money which are not inconsiderable.
In written submissions, counsel for the applicant noted that the course of events has highlighted the lack of a Native Title Party as defined under the agreement pending the 'assignment' of the YM Compensation entered into between the parties in or about 25 September 2008. That has led to a disconnect between the identity of the authorised decision makers of the YM People at the time of execution of the YM Deed and the entity which has been entrusted to hold the rights of the common law holders following the YM Determination.[95] Counsel noted the effect of this disconnect is compounded by the fact that the YM Deed does not contain an automatic assignment of the powers and obligations of the YM 'Native Title Party' from the native title claimants to the second respondent upon a determination being made.[96]
[95] Applicant's submissions filed 11 August 2020 [3].
[96] Applicant's submissions filed 11 August 2020 [4].
Counsel submitted that led to a number of issues. He framed those issues in this way:
(a)can the YM Deed be assigned only by the former registered native title claimants to WAC?;
(b)does the YM Deed need to be assigned at all having regard to the transfer of 'representation' under the Native Title Act 1993 (Cth) from a native title claim applicant to (in this case) WAC when a determination is made?;
(c)which is the appropriate entity to whom the rights under the YM Deed should be assigned?; and
(d)has there been a valid direction for payment made under cl 5.4 of the YM Deed?[97]
[97] Applicant's submissions filed 11 August 2020 [5].
Dealing with each of these issues in turn, as the holders of native title over the area the subject of the Cape Preston Iron Ore Project the true counterparty to the YM Deed is the YM People.[98] WAC appears to be the appropriate stakeholder to assume the role of the 'Native Title Party' for the purposes of the YM Deed. WAC has purported to assume this role and issue a direction to the applicant by virtue of the Deed Poll.[99] However, while one party can unilaterally assume the obligations under an agreement, the rights under that agreement must usually be assigned for there to be a transfer of interests. The difficulty is there is a lack of assignment by the third, fourth and fifth respondents and competing directions to the applicant.[100] At this point it is necessary to take a step backwards. Prior to a determination the applicant for native title (here being the YM People) acts through and is represented by registered native title claimants – here the third, fourth and fifth respondents. Following a determination the holders of native title act through and are represented by a prescribed body corporate – here WAC. The effect of a determination being made and the subsequent transfer of representation from the third, fourth and fifth respondents to WAC has properly been dealt with under the YM Deed. So while the situation is not radically different or uncertain from that which was plainly anticipated at the time of drafting, the mechanisms in the YM Deed for assignment and payment cannot operate following the YM Determination due to the change in legal status of the registered native title claimants upon the making of the Determination.
[98] Applicant's submissions filed 11 August 2020 [6].
[99] Applicant's submissions filed 11 August 2020 [7].
[100] Applicant's submissions filed 11 August 2020 [8].
These problems all stem from the definitions of 'Native Title Party' and 'YM Parties'. The YM Parties are defined to be each of the 'Native Title Party' and the YM Corporation which is defined to be YACMAC. The 'Native Title Party' is defined in two ways. First, as a counterparty being the third, fourth and fifth respondents for and on behalf of themselves and the YM People in the Native Title Application Number WC96/89 and second as a defined term being the persons whose names appear from time to time on the register of native title claims as the people who are taken to be representative of the claimants in relation to the native title application for and on behalf of themselves and the YM People and includes the YM People.[101]
[101] Applicant's submissions filed 11 August 2020 [38].

The 'and' in the definitions is plainly disjunctive. Moreover, as it is not contested that the third, fourth and fifth respondents all fall within the definition of 'YM People' it is also redundant. That is, the third, fourth and fifth respondents act on behalf of the YM People. The question is whether they have a 'veto' capacity.[102] The 'YM People' is defined to include the Native Title Party or any Aboriginal person determined to be approved under the Determination to be a YM native title holder.[103]
[102] Applicant's submissions filed 11 August 2020 [39].
[103] Applicant's submissions filed 11 August 2020 [40].
Clause 16.2(a) of the YM Deed provides that if a native title determination is made then the Native Title Party may assign its rights and obligations under the YM Deed to WAC.[104] Clause 16.2(b) provides that if the Native Title Party assigns its rights and obligations to WAC then WAC will be entitled to exercise all powers, rights and benefits the Native Title Party under the Deed.[105] There are two issues with the wording of this clause. Firsts, there is no longer a Native Title Party (as defined) that can agree it assign its rights and obligations now that a determination has been made. Second, if there is a Native Title Party the assignment is discretionary.[106] These issues arise in this way.
[104] Applicant's submissions filed 11 August 2020 [41].
[105] Applicant's submissions filed 11 August 2020 [42].
[106] Applicant's submissions filed 11 August 2020 [43].
Since the YM Determination was handed down there are no longer any persons on the Register of Native Title Claims. Similarly, by virtue of the operation of the Act, the third, fourth and fifth respondents do not have authority to act on behalf of the YM as there is no longer an application on foot for them to represent:[107] See s 61, s 62(1)(iv) and s 62A of the Act. They can, however, act in their personal capacity. That capacity is expressly referred to in the YM Deed. It is difficult to see what rights the third, fourth and fifth respondents hold under the YM Deed following a determination. Presumably the purpose of them signing in that capacity is primarily related to the warranties given for and on behalf of the YM People.[108] This means there are no longer persons who fall within the definition of 'Native Title Party' under the YM Deed.[109] Put simply, by virtue of the definitions in the YM Deed and the effect of a determination being made under the Act, the YM Deed cannot be assigned by any party on behalf of the YM People.[110]
[107] Applicant's submissions filed 11 August 2020 [45].
[108] Applicant's submissions filed 11 August 2020 [46].
[109] Applicant's submissions filed 11 August 2020 [47].
[110] Applicant's submissions filed 11 August 2020 [48].
Even assuming there was a 'Native Title Party' or that it was open to the court to appoint one of the YM stakeholders to this position, there is still a difficulty. There is no obligation to assign the YM Deed. It is expressly a discretionary power rather than a mandatory obligation.[111] The second respondent has submitted that cl 16.2 ought be read as mandatory.[112] As was submitted by the applicant, that submission cannot be accepted.[113] The way in which the applicant would circumvent this difficulty is to find the YM Deed need not be assigned at all given the way the decision‑making authority is assigned to WAC under the Act.[114] The second respondent submits it would be appropriate for cl 16.2 to be severed because it has no operation in the statutory context. This would allow an 'automatic' transfer to occur.[115] On balance, I think that is what has occurred in this case. I have reached that conclusion for these reasons. Section 61 – 62A of the Act set out the role and powers of an 'applicant' in a native title determination application and a 'registered native title claimant' in relation to a registered claim. Section 253 of the Act provides that 'applicant' has a meaning affected by s 61(2) and a 'registered native title claimant' is a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title. Pursuant to these sections, an applicant must be authorised by all the persons in the native title claim group to make the application and then deal with matters arising in relation to it. The applicant is not a separate legal entity. The purpose of an applicant is to represent an act on behalf of all persons who hold native title. That said, an applicant cannot act other than through the registered native title claimants. See McGlade v Native Title Registrar [2017] FCAFC 10 and Weribone on behalf of the Mandandanji People v State of Queensland (No 2) [2013] FCA 485 [45] – [47]. See also Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551 [51] – [57].
[111] Applicant's submissions filed 11 August 2020 [49].
[112] Second respondent's outline of submissions filed 30 July 2020 [56].
[113] Applicant's submissions filed 11 August 2020 [50].
[114] Applicant's submissions filed 11 August 2020 [51].
[115] Second respondent's outline of submissions filed 30 July 2020 [57].
Pursuant to s 66B of the Act the native title claim group can apply to the court to have the applicant replaced. One of the grounds upon which that application can be made is that the person is no longer authorised by the native title claim group to make the application and to deal with matters arising in relation to it. This process has been utilised by the YM when the third, fourth and fifth respondents replaced Ms Patricia Cooper on the basis that Ms Cooper no longer had authority to act for the group:[116] See Holborow v State of Western Australia [2002] FCA 1428. No such application has been made in respect of the third, fourth and fifth respondents.
[116] Applicant's submissions filed 11 August 2020 [55].
Upon a determination of native title, the Act expressly provides how the native title rights and interests that have been recognised to exist in the common law holders is to be held and by whom it is to be held.[117] It is a requirement that it be held by a statutory entity. The Act also provides that in some circumstances the native title rights and interests are to be held by the common law holders themselves. In that case there must be a prescribed body corporate which is to act as agent or representative of the common law holders: See generally s 56 and s 57. Either way, the Act requires a prescribed body corporate to be created post determination for the purpose of the common law holders to act through.[118]
[117] Applicant's submissions filed 11 August 2020 [56].
[118] Applicant's submissions filed 11 August 2020 [57].
The requirement for there to be a prescribed body corporate to act as an agent or trustee is confirmed by s 30(2) of the Act which provides that:
(2)A person ceases to be a native title party if the person ceases to be a registered native title claimant.
Note:If a native claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.
There are numerous similarities between the role and responsibilities of an applicant and a prescribed body corporate – they are both statutory vehicles that are authorised to represent and make decisions on behalf of the native title holders.[119] The key difference between the two 'vehicles' is the point in time at which they represent the native title holders. An applicant is authorised by the native title claim group during the life of the application. Once a determination is made and a prescribed body corporate is appointed by the court to hold the native title group's native title on trust, that authorisation is transferred to the prescribed body corporate. The application is removed from the Register and the 'applicant' no longer exists.[120]
[119] Applicant's submissions filed 11 August 2020 [59].
[120] Applicant's submissions filed 11 August 2020 [60].
It is possible there can be a difference between the persons comprising the applicant and the common law holder. The applicant suggests that might be the case here. However, even if that is so, the common law holders in this case include all of the applicant.[121] Accordingly, in my view, the YM Determination has resulted in an automatic transfer of the representation and consequently the authority to act on behalf of the YM from the third, fourth and fifth respondents to WAC. As a result of that transfer, an assignment of the Native Title Party's rights and obligations under the YM Deed is not required because WAC is now the applicant and therefore arguably the Native Title Party. The Deed Poll of Assumption executed by WAC should be accepted as perfecting the replacement of the remaining respondents with WAC as the applicant's counterparty to the YM Deed.[122]
[121] Applicant's submissions filed 11 August 2020 [61].
[122] Applicant's submissions filed 11 August 2020 [64].
Given this analysis of the position, it is unnecessary to answer the first three questions. There is no need for an assignment of rights from the applicant to the common law holders as they have an identity of interest. The underlying counter party, being the YM People, are the common law holders as the successors of the applicant under the YM Claim and WAC being the entity empowered to deal with the native title rights of that group are the appropriate entity to be the formal counter party to the YM Deed.[123]
[123] Applicant's submissions filed 11 August 2020 [69].
The final question to be considered is whether the applicant has received a payment direction in accordance with the mechanism set out in cl 5.4 of the YM Deed. The applicant does not consider that it has received a valid payment direction. It is only when the issue is resolved by the court that such a valid direction can be made.[124] The applicant points to the various directions which it has received to date and makes the valid point that not all of these directions can be proper. Having determined that WAC automatically steps into the role of applicant/Native Title Party, there are then two issues which cause the applicant concern. First, WAC's solicitors cannot 'give notice' – it must be a direction from WAC's Authorised Officer. Second, the invoice is 18 months old and purportedly from YM Trust itself rather than Pascoe Partners who is the YM Trustee. An invoice also cannot, itself, be a direction from the YM Parties.[125] Of course these matters are largely mechanical and can be rectified by WAC. But the parties, having come this far, seek to have the matter resolved by the court. As is apparent from the discussion of the issues above, the position is by no means clear. There is at least a possibility that one or other of the parties who has not appeared in this application might seek to set aside any orders I make as proposed by the second respondent. Those orders really deal with the rights of the first, third, fourth and fifth respondents vis-à-vis the second respondent. That being so, I propose to order the funds held by the applicant to be paid into court. There will then be an order providing the applicant with the usual protections on an interpleader summons. That should be followed by a declaration in terms of par 1 of the orders proposed by the second respondent. In my view, the present direction under cl 5.4 of the YM Deed is not a proper direction for the reasons set out above. Such a direction should be given. That will regularize the position. Once that direction is given, payment out of court to the second respondent can be made. I would therefore propose that Order 3 should read as follows:
3.Within seven days of the second respondent giving to the applicant a proper direction under clause 5.4 the moneys paid into court by the applicant be paid to the second respondent. There should be an order for costs as proposed by the second respondent in its present Order 4.
[124] Applicant's submissions filed 11 August 2020 [70].
[125] Applicant's submissions filed 11 August 2020 [74].
On publication of these reasons I will give the parties the opportunity to make further submissions as to the form of the orders.
By way of final comment, I should say this application raises issues of bewildering complexity. Given the interrelationship between the YM Deed and the Act, it is hardly surprising difficulties have arisen. Intervention by the court was almost inevitable. That is in no‑one's interests. Costs have been incurred and those costs will come out of the pocket of the native title holders. None of this is to criticise the lawyers involved – counsel for the parties provided detailed written submissions which were of enormous assistance in preparing these reasons. But it must be open to question whether a regime this complex is in anyone's interests.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
15 SEPTEMBER 2020

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established