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Court backs Robe River Kuruma Aboriginal Corporation on agreement with mining company

Giovanni Torre -

Robe River Kuruma Aboriginal Corporation recently won an important legal victory over an agreement with a major company.

The Corporation is the native title prescribed body corporate for the Robe River Kuruma People (formerly referred to as the Kuruma Marthudunera People). The Kuruma Marthudunera People entered into a Compensation Agreement with CITIC Pacific Mining in 2008 about their Cape Preston operations in which CITIC was to make annual payments in exchange for, among other things, consents for tenure, heritage and environmental process support.

In 2019, CITIC stopped making the annual payments of about $1.6m per year.

RRKAC says it had no option but to sue CITIC for performance under a Compensation Agreement, leading to a long legal battle which recently came to an end.

Although the proceedings were commenced in mid-2022, they were not heard until January 2024 due to factors including questions over jurisdiction and another party's involvement.

In the proceedings, CITIC alleged it was no longer required to make payments because the Compensation Agreement was "frustrated" (come to an end) because, in short, the area over which the RRK People were determined to hold native title was much less of the Agreement Area than when the Agreement was originally signed.

The Court rejected CITIC's frustration argument and gave eight reasons why the Compensation Agreement was not frustrated, ultimately finding RRK is entitled to the annual payments with interest.

Robe River Kuruma Aboriginal Corporation Chair Kelly Slattery told National Indigenous Times that aside from the annual payments, the agreement also covered "business development, employment and training …as well as obviously heritage obligations as well".

"Some aspects of that were still continuing even for the duration of the period in which they (CITIC) were saying it was frustrated," she said.

"(Those aspects) certainly need to be fulfilled in the future."

Ms Slattery noted there was a third party involved in the issues, another Indigenous corporation - Yaburara Mardudhunera People - with whom RRKAC has a an "intra-Indigenous land use agreement". This agreement governs a number of things, including the status of the two distinct agreements the Native Title groups have with CITIC.

"We fully expect we can start getting that back on track as well, which has not been entirely functional previously," she said shortly after the court brought down its findings.

Ms Slattery said he hoped training and employment activities involving CITIC and RRKAC would return to normal.

"We still have Traditional Owners from our language group that are employed out there… but we don't have the level of engagement we had when the project first commenced," she said.

"We pride ourselves as a corporation that is well-governed, well-structured, certainly very passionate about running programs for our members, and that runs the whole gamut of addressing social barriers a lot of our members have, things around housing, things around heath, education… so, when you take those sorts of funds out of the equation you certainly have to make adjustments around 'what are your strategic priorities?' on a year by year basis when you can no longer rely on that type of funding to be able to deliver to your members."

Ms Slattery said it was disappointing CITIC had engaged a third party – the Yaburara Mardudhunera People – in the legal proceedings.

"When you bring in third parties… we are all families, we live in the same communities, to muddy those waters, that has lasting implications beyond CITIC saying an agreement is frustrated. It creates a fair degree of angst and animosity when other people are being brought in to be part of these type of proceedings under what appears to be the encouragement of CITIC."

Robe River Kuruma Aboriginal Corporation noted after the case that the justice system is "difficult for small organisations who are in this situation with well-resourced companies", and expressed gratitude for "the dedication and support of our legal team and our members who have had to forgo support to pursue this cause".

RRKAC said the court accepted their arguments about how their agreements with CITIC and with the Yaburara Mardudhunera People should work.

Final orders were issued for the company to pay the balance of Annual Payments due and owing, together with interest; and RRKAC's costs.

CITIC chose not to exercise the option of launching an appeal within the set period of 28 days after the final orders were issued.

A spokesperson for CITIC Pacific Mining told National Indigenous Times the company has "a longstanding positive and constructive relationship with the recognised Native Title Group where our operations are located".

"We honour the terms and benefits delivered in this agreement and continue to explore opportunities for further collaboration," they said.

"Given the significant changes made over time to the original RRK native title claim area, a genuine question of law existed as to whether agreements in place with RRK remained relevant and appropriate."

The company spokesperson cited part of the judgement in which the court noted the determination of native title in favour of the Kuruma Marthudunera People (now the Robe River Kuruma) relates to a small part of the Agreement Area; being an area which is located on the southern-most part of the Agreement Area, a considerable distance away from the Tenement Area where the mining operations for the Project are being carried out by the Participants.

That same part of the judgement did also note that the southernmost part of the Agreement Area forms part of a much larger adjacent area of which the Robe River Kuruma People were determined to be the holders of native title rights and interests.

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