Onslow Salt Pty Ltd v Buurabalayji Thalanyji Aboriginal Corporation

In the Federal Court of Australia, Onslow Salt Pty Ltd (Onslow Salt) appealed against a decision by the primary judge to refuse a stay of proceedings brought by Buurabalayji Thalanyji Aboriginal Corporation (Corporation). The Corporation claimed that Onslow Salt had entered into agreements with Chevron Australia Pty Ltd to undertake flood mitigation works in a mining lease area, which was within the native title area of the Corporation. The Corporation alleged that the agreements were a sham and that Onslow Salt and the State of Western Australia had breached their obligations under the Native Title Act 1993 (Cth). Onslow Salt argued that the proceedings should be stayed because the Corporation had not followed a dispute resolution clause before commencing the proceedings. The clause required an independent advisory opinion to be obtained before commencing court proceedings. The primary judge refused the stay: Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd [2017] FCA 1240.

The appeal raised two main issues for the court. The first was whether the non-binding nature of the dispute resolution process was relevant to the exercise of the court's discretion to stay the proceedings. The second was whether the primary judge had erred in deciding that the dispute resolution clause did not apply to the particular dispute. Onslow Salt argued that the non-binding nature of the dispute resolution process was relevant because it meant that the process was not binding and therefore not a prerequisite to commencing court proceedings. The Corporation argued that the nature of the dispute resolution process was irrelevant because the clause was a condition precedent to the commencement of proceedings. The court held that the non-binding nature of the dispute resolution process was not relevant to the exercise of the court's discretion to stay the proceedings. The court also held that the primary judge had not erred in deciding that the dispute resolution clause did not apply to the particular dispute because it only applied to disputes concerning the interpretation, application or enforcement of the state agreement, and the dispute was not about that.

The court dismissed the appeal and ordered that Onslow Salt pay the Corporation's costs of and incidental to the appeal, to be taxed in default of agreement. The court held that the primary judge had not erred in refusing the stay of proceedings because the dispute resolution clause did not apply to the particular dispute and because the Corporation had substantial merits in its case. The court also held that the non-binding nature of the dispute resolution process was not relevant to the exercise of the court's discretion to stay the proceedings. The court noted that the dispute resolution clause was a condition precedent to the commencement of proceedings, but that did not mean that the process had to be binding. The court also noted that the Corporation had substantial merits in its case because it alleged that Onslow Salt and the State had breached their statutory and contractual obligations under the Native Title Act 1993 (Cth). The court concluded that the appeal should be dismissed and that Onslow Salt should pay the Corporation's costs of and incidental to the appeal.