Traditional owners of the Mount Jowlaenga area in Western Australia’s Kimberley have won a landmark court battle with miner Sheffield Resources over one of the biggest mineral sands deposits to be discovered in three decades.
The traditional owners had appealed to the Full Court of the Federal Court in an attempt to stop the ASX-listed company pressing ahead with 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.
At the heart of the appeal was the question of when the obligation by companies to negotiate in good faith ended — if it did at all — in Native Title dealings.
In a majority decision handed down in Melbourne, Justices Anthony North and John Griffiths ruled in the Mount Jowlaenga people’s favour finding the good faith obligation was “not explicitly subject to any particular point in time or cut-off date”.
They sent the matter back to the National Native Title Tribunal to be re-heard on points of law.
The powerful Kimberley Land Council said the decision acknowledged for the first time in the history of the Native Title Act that parties were protected by a good faith obligation at all stages of negotiations, even after an application had been made to the NNTT.
It said the decision was fundamental to Native Title parties’ ability to give genuine consent to agreements for resource development on their lands.
KLC chief executive officer Nolan Hunter said the KLC had been steadfast in its support of the Mount Jowlaenga traditional owners.
“(This) decision makes it clear that companies that want to operate on Aboriginal lands must negotiate in good faith at all times,” Mr Hunter said.
“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.”
But in a statement to the Australian Securities Exchange after the ruling, Sheffield said the court’s decision was based on a technical argument.
“Importantly the court made no finding that Sheffield had not negotiated in good faith,” it said.
The company said the NNTT would now reconsider whether Sheffield negotiated in good faith, taking into account a revised time period.
It said the hearing was expected in the first quarter of 2018.
“The company does not currently expect a material impact on the Thunderbird Project’s timeline,” it said.
“The decision to grant the mining lease to Sheffield has only been deferred and not been set aside by the court.
“Sheffield remains confident that it did negotiate in good faith and will continue to advise the community and shareholders of further developments as they arise.”
The Full Federal Court decision overturned a previous decision by a single judge of the Federal Court, Justice Michael Barker, who in October ruled the law did not “carry with it the express obligation, or implied obligation, to negotiate in good faith” once a matter was before the NNTT.
His judgement had cleared the way for Sheffield to ask the WA Government to give the project the green light even though an agreement wasn’t in place with the Mount Jowlaenga people.
Native Title lawyers Arma Legal lodged the successful appeal for the Mount Jowlaenga people amid concerns the case was setting a dangerous precedent.
In October, Kimberley Land Council chief executive Nolan Hunter warned there should be no loss of the good faith protection at any point of the negotiation process.
The Mount Jowlaenga people said at the time that Justice Barker’s decision had meant the Native Title Act was being used to take advantage of them rather than protect them.
Sheffield Resources plans to operate its zircon-rich Thunderbird Mineral Sands Project on the Dampier Peninsular about 60km west of Derby. The company hopes to begin construction on the site later this year, with production to begin in 2019.