FMG PILBARA PTY LTD and MINISTER FOR INDIGENOUS AFFAIRS

[2012] WASAT 31

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: ABORIGINAL HERITAGE ACT 1972 (WA)

CITATION:   FMG PILBARA PTY LTD and MINISTER FOR INDIGENOUS AFFAIRS [2012] WASAT 31

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

HEARD:   25 JANUARY 2012

DELIVERED          :   17 FEBRUARY 2012

FILE NO/S:   DR 271 of 2011

BETWEEN:   FMG PILBARA PTY LTD

Applicant

AND

MINISTER FOR INDIGENOUS AFFAIRS
Respondent

YINDJIBARNDI ABORIGINAL CORPORATION
Applicant for Joinder

Catchwords:

Practice and procedure - Application for joinder - Interests affected by proceedings - Discretion - Applicant for joinder seeking to prevent withdrawal of proceedings - Parties connected to withdrawal knowing reconsideration of decision

Legislation:

Aboriginal Heritage Act 1972 (WA), s 17, s 18
Interpretation Act 1984 (WA), s 56
Native Title Act 1993 (Cth)
State Administrative Tribunal Act 2004 (WA), s 9, s 25, s 26, s 27, s 29, s 30, s 31(3), s 32(4), s 37(2), s 32(7), s 38, s 46(1)

Result:

Application for joinder dismissed
Leave to withdraw application granted

Category:    B

Representation:

Counsel:

Applicant:     Mr M D Howard SC

Respondent:     Ms M J Paterson

Applicant for Joinder    :     Mr G M Irving

Solicitors:

Applicant:     Green Legal

Respondent:     State Solicitor for Western Australia

Applicant for Joinder    :     G M Irving

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

Traditional Owners - Nyiyaparli People and Minister for Health Indigenous Affairs [2009] WASAT 71

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Yindjibarndi Aboriginal Corporation sought joinder to an application which had been made by FMG Pilbara Pty Ltd for review of a decision of the Minister for Indigenous Affairs to consent pursuant to s 18 of the Aboriginal Heritage Act 1972 (WA) to certain mining works. Following lodgement of the initial application for joinder, but before that application had been dealt with, the matter was referred back to the Minister for reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA). Following the reconsideration, which amended the conditions of the approval, FMG Pilbara Pty Ltd sought to withdraw its application. The Yindjibarndi Aboriginal Corporation sought to have its application for joinder dealt with on the basis that, if joined, it would oppose the withdrawal of the application. It also sought a stay of the operation of the Minister's decision on reconsideration pending resolution of the proceedings.

2. The Tribunal rejected the application for joinder, principally on the basis that to permit the Corporation to become a party in order to pursue the proceedings in the way suggested would be to confer upon it a right of review of the Minister's decision which is not available under the Aboriginal Heritage Act 1972 (WA). Having rejected that application, the Tribunal acceded to the applicant's application for leave to withdraw the proceedings, and the application for a stay of the decision necessarily fell away.

Introduction

1. On 25 January 2012, the Tribunal heard argument on an application by the Yindjibarndi Aboriginal Corporation (YAC) to be joined as a party to these proceedings pursuant to s 38 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At the same time, the Tribunal dealt with an application by FMG Pilbara Pty Ltd (FMG) for leave to withdraw its application, an application to which the respondent, the Minister for Indigenous Affairs (Minister), consented. Subject to it succeeding on its application for joinder, YAC also sought a stay of the decision of the Minister which was the subject of the application for review.

2. After hearing argument, the Tribunal advised the parties that it proposed to make orders dismissing the application for joinder, granting leave to the applicant to withdraw the proceedings, and dismissing the application for a stay.  The Tribunal advised the parties that reasons for that decision would be delivered in writing.  These are those reasons.

Background

1. FMG holds a number of mining leases in an area which is referred to as the Solomon Mining Area. One of those mining leases is M47/1413. Within the area the subject of that mining lease is an area which is referred to as the Priority Mining Area. On 18 February 2011, FMG gave notice to the Aboriginal Cultural Materials Committee (ACMC) pursuant to s 18 of the Aboriginal Heritage Act 1972 (WA) (AH Act) of a proposal to use the Priority Mining Area for mining operations. Section 17 of the AH Act makes it an offence to interfere with or damage an Aboriginal site. A notice under s 18(2) of the AH Act is necessary where use of land for a purpose is likely to result in the breach of s 17 of the AH Act.

2. YAC is the representative body which had been declared a Prescribed Body Corporate for the Yindjibarndi people under the Native Title Act 1993 (Cth) in proceedings which recognised the existence of native title rights in relation to sites within the Solomon Mining Area. Prior to lodgement of the notice, there had been a history of dealings between FMG (or related entities) and the YAC concerning the development of the mining operations, and there had been a number of proceedings in the Federal and Supreme Courts related to FMG's proposals.

3. Following a series of exchanges between the ACMC and FMG, and submissions by YAC to the ACMC, the original s 18 Notice was withdrawn, and a new s 18 Notice was lodged.

4. Following further submissions made by YAC to ACMC, ACMC made recommendations to the Minister which led to the Minister granting a conditional consent to the proposed use pursuant to s 18(3) of the AH Act (the original decision).

5. On 5 August 2011, FMG filed an application with this Tribunal for a review of the original decision.  At the initial directions hearing on 2 September 2011, the Tribunal gave a direction that notice be given to YAC and to the Wirlu­Murra Yindjibarndi Aboriginal Corporation (WMYAC).  That direction was made pursuant to a protocol which has been previously agreed between the Tribunal and the Minister in relation to applications under the AH Act.  The protocol provides that, at the first directions hearing, the presiding member will discuss with the respondent what orders are required to be made in order to obtain information from the respondent that would identify the Aboriginal groups consulted in the decision­making process under review.

6. At the same time, the Tribunal directed that the application be referred to a mediation on 4 October 2011. 

7. On 27 September 2011, the Chief Executive Officer of the YAC wrote to the Tribunal advising that YAC wished to participate in the proceedings. 

8. The mediation was eventually conducted on 6 October 2011. The outcome of the mediation was that, pursuant to s 31 of the SAT Act, the Minister was invited to reconsider its decision on or before 15 November 2011. A further direction was made following mediation that the Minister was to invite the YAC and the WMYAC to provide to all parties any submissions which they wished to make in relation to the Minister's reconsideration of its decision, with those submissions to be made by 24 October 2011.

9. YAC duly made detailed submissions to the Minister prior to the reconsideration.

10. Orders were subsequently made extending time for the Minister's reconsideration and eventually, the Minister issued a reconsidered decision on 13 December 2011.  The effect of the reconsideration was to delete a number of conditions which were contained in the original decision. 

11. Following delivery of the reconsidered decision, FMG sought leave of the Tribunal pursuant to s 46(1) of the SAT Act to withdraw the proceedings, obviously on the basis that it was content to accept the terms of the reconsidered decision. There was thus, then, no matters in controversy as between FMG and the Minister. The Minister consented to the making of an order for leave to withdraw.

12. YAC, on the other hand, were concerned that the deletion of the conditions from the original decision removed protections which served to enable the identification and protection of certain Aboriginal sites which had not, in its view, been properly assessed in the materials before the ACMC.  Accordingly, YAC opposed the withdrawal of the proceedings on the basis that they wished to agitate that, either the process leading to the Minister's reconsideration was defective, such as to render his decision invalid, or alternatively, the defects in the process resulted in the reconsidered decision not being the correct and preferable decision.

13. Following further directions from the Tribunal, YAC identified the orders which it would seek, were it to be joined as a party to the proceedings, in the following terms:

    3.1.1That the Minister's decision be set aside; on the ground that the precondition for the exercise of the Minister's power under s 18(3) of the Aboriginal Heritage Act 1972 (AHA), was not satisfied.

    Particulars

    i. the Aboriginal Cultural Materials Committee failed to carry out its duty under s 18(2) of the AHA to form an opinion as to the existence of Aboriginal sites on the Land in addition to than those identified in the Applicant's Notice under s 18(1) of the AHA; and,

    ii. the Aboriginal Cultural Materials Committee failed to carry out its duty under s 18 (2) of the AHA to evaluate the importance of any such sites.

    IN THE ALTERNATIVE

    3.2That the original conclusions attached to the Minister's original decision, of 30 June 2011 and numbered 1, 4, 5 and 8 be reinstated, on the ground that, in light of the failure of the Aboriginal Cultural Materials Committee to carry out its duty under s 18(2) of the AHA, the Minister's decision to attach conditions 1, 4, 5 and 8 was the correct and preferable decision.

    Particulars

    i.     the Minister has a duty under s 10 of the AHA to ensure that so far as is reasonably practicable all places and cultural material of traditional or current sacred, ritual or ceremonial significance to persons of Aboriginal descent are recorded on behalf of the community, and their relative importance evaluated so that the resources available from time to time for the preservation and protection of such places may be coordinated and made effective; and,

    ii.    conditions 1, 4, 5 and 8 provided a mechanism under which the Minister could, carry out his duty under s 10 of the AHA.

The application for joinder

1. Section 38(1) of the SAT Act provides:

   (1)The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -

   (a)the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or

   (b)the person’s interests are affected by the proceeding; or

   (c)for any other reason it is desirable that the person be joined as a party.

2. For the purposes of this application, the applicant conceded that, YAC represents some of the Yindjibarndi people, that the Yindjibarndi people had been recognised as having a special interest over and above that of the community in general in the preservation of the Aboriginal heritage value of sites, and that the proceedings had the potential to affect Aboriginal sites on the subject land. Accordingly, FMG (and the Minister) accepted, in my view quite correctly, that YAC's interests are affected by these proceedings within the meaning of s 38(1)(b) of the SAT Act.

3. YAC argued that, in addition, it satisfied s 38(1)(c) of the SAT Act, but, it having satisfied s 38(1)(b), it is not necessary to consider further whether that submission should be accepted.

4. Both the applicant and respondent contended, however, that the discretion which arises under s 38(1) should not be exercised in YAC's favour in the circumstances of the present case regardless of whether it was a body which came within the descriptions of a potential party found in s 38(1)(a), (b) and (c). It was common ground that no automatic right to joinder arises simply by satisfying any of those three descriptions, but there remained an overriding discretion on the part of the Tribunal as to whether or not to order joinder - see s 56 Interpretation Act 1984 (WA).

5. In my view, that discretion should not be exercised in YAC's favour in the circumstances at the present case for the following reasons.

6. The Tribunal has previously held in Traditional Owners - Nyiyaparli People and Minister for Health Indigenous Affairs [2009] WASAT 71 (Nyiyaparli) that a right of review under s 18(5) of the AH Act was only conferred upon the owner of the land who had given notice of intention to carry out the works and who had sought the Minister's consent. Accordingly, the Tribunal concluded that the Nyiyaparli People, who asserted rights in relation to the Aboriginal sites on the land where the works were to be carried out had no right to seek a review of a decision of the Minister under s 18 of the AH Act.

7. Counsel for YAC argued that the Nyiyaparli decision might be distinguished on the basis that, in this case, native title rights had been found to exist in favour of the Yindjibarndi People within the area of land the subject of the Minister's decision.  Thus, it was suggested, the present applicant for joinder should be viewed in a stronger position than the Nyiyaparli People in respect of whom no native title determination had been made in relation to the land the subject of those proceedings. 

8. I do not accept that that distinction leads to a different result.  The conclusion in the Nyiyaparli decision was that a right of review was confined to the owner of land who had sought the Minister's consent, and not to traditional owners of the land.  The fact of there having been a determination as to the existence of native title over the relevant land does not alter the rationale of that decision.

9. Alternatively, YAC argued that, notwithstanding the conclusion in the Nyiyaparli decision, there is nothing in the SAT Act or the HA Act to suggest that the discretion in s 38 of the SAT Act requires the exclusion of indigenous traditional owners from being joined as a party to a review application. Rather, they argued, the ambit of the discretion in s 38 of the SAT Act clearly contemplates people being joined as parties who would not otherwise entitled to commence an application. Furthermore, YAC argued that the fact that the proceedings had now been resolved as between the present parties should not influence the Tribunal's exercise of its discretion, since YAC's intention to seek participation in the proceedings predates the date upon which the mediation occurred and the invitation under s 31 of the SAT Act was issued by the Tribunal.

10. Section 31 of the SAT Act provides an important mechanism for achieving the Tribunal's objectives found in s 9, in particular, achieving the resolution of questions fairly and according to the substantial merits, and also achieving resolution as speedily as possible, with a minimisation of costs to parties. It also facilitates the important ongoing role for decision-makers in the review process under the SAT Act. Section 25 of the SAT Act provides that the original decision­maker's decision will continue to have effect, notwithstanding an application for review, unless the enabling Act states otherwise or the Tribunal makes an order staying its operation. After a review is commenced, the decision-maker cannot vary or set aside its original decision except in limited circumstances including where it is invited to reconsider under s 31 - see s 26 of the SAT Act. The purpose of the Tribunal's review is to produce the correct and preferable decision at the time of the decision upon review - s 27 of the SAT Act. In conducting its review, the Tribunal has all the functions and discretions corresponding to those exercisable by the decision-maker in making the original decision - s 29. Section 30 requires the decision-maker to assist the Tribunal to make the correct and preferable decision.

11. Section 31 enables the Tribunal, at any stage of a proceeding, to invite the decision­maker to reconsider its decision. That is a relatively common occurrence following mediation in the Tribunal where, following open communication, and often the provision of additional information, the decision­maker recognises that its decision, or some aspects of it, ought to be revisited. Where the reconsideration is invited, the decision­maker is again empowered to make its decision afresh. Where, as in this case, the decision­maker varies the original decision, then 'unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied …'. (s 31(3)). The section recognises, therefore, that the reconsideration following the invitation under s 31 becomes the operative decision of the decision­maker. The Tribunal is required to treat the application for review as a review of the varied or substituted decision.

12. FMG does not challenge the reconsidered decision.  It can be inferred that, had the original decision been in the terms of the reconsidered decision, FMG would not have sought a review.  In that case, YAC would have had no capacity to challenge the decision, for the reasons explained in Nyiyaparli. 

13. Counsel for YAC argued that the institution of an application for review by a proponent for works under s 18 of the AH Act carried with it a risk that it was opening itself to the possibility that an interested party may, through s 38 of the SAT Act, gain a capacity to influence the outcome of the decision beyond that which it had in relation to the original decision. I do not accept that submission. To do so would be to accept that the mere institution of the review by the Tribunal had the effect of creating substantive new rights for third parties.

14. The arguments, and the materials, which the YAC seeks to put before the Tribunal to influence it to a different decision from the Minister's reconsidered decision were all the subject of detailed and lengthy submissions to the ACMC and to the Minister during the course of the decision-making process, including prior to the reconsideration.  It is quite apparent that YAC considers that the Minister ought to have reached a different decision.  The effect of its present application is to seek to put it in a position of having a right of review of the Minister's reconsidered decision.  The SAT Act gives full force to that decision.  There is no controversy between the parties in relation to it.  In my view, it would not be an appropriate exercise of the Tribunal's discretion to accede to the request for joinder. 

15. As mentioned above, the YAC argued that the decision on joinder should be taken without regard to the fact that there is now no longer any matter of controversy between the parties because its application was lodged prior to the mediation.  I do not accept that submission.  The Tribunal should have regard to the circumstances as they pertain at the time it considers the application, not the date of its lodgement.  In any event, given the scheme of the AH Act, and in particular the conferral of responsibility for decision-making in relation to Aboriginal sites under the AH Act as explained in Nyiyaparli, joinder of parties claiming an interest in affected sites may only rarely, if ever, be appropriate. That is because the regime of consultation which exists in relation to the original decisions to be made under the AH Act might more appropriately be achieved in ways other than joinder in review proceedings before the Tribunal. By s 32(7) of the SAT Act, the Tribunal is required to ensure that all relevant material is disclosed to it to enable it to determine all relevant facts in issue in a proceedings. By s 32(4), the Tribunal may inform itself on any issue as it sees fit. The protocol developed with the Minister for Indigenous Affairs which enables notice to be given to persons consulted in accordance with the AH Act in relation to an original decision is directed to ensuring that all relevant material is disclosed for the purposes of the review. That does not require, or even suggest, that a person who has been consulted should be joined as a party. Because status as a party carries with it various rights, it will always be necessary to consider whether those rights are appropriate in the particular circumstances of a case. The scheme of the AH Act may suggest that the attitude of affected Aboriginal groups may be better ascertained by allowing a right to make submissions, or perhaps a right to intervene on conditions as to the role to be played - s 37(2) of the SAT Act. There is at least a strong argument that joinder of persons claiming interest in Aboriginal sites, with the effect that that person can fully participate in the proceedings, goes beyond the rights which the enabling Act contemplates in this particular area of the Tribunal's jurisdiction.

1. For those reasons, I concluded that the application for joinder should be refused. 

2. It was accepted by counsel for YAC and by the parties to the proceedings, that if the application for joinder were not to succeed, then there is no basis upon which the Tribunal should decline leave to the applicant to withdraw its proceedings.  Likewise, there was no issue that the application by YAC for a stay would necessarily fall way.  The Tribunal made orders accordingly.

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT