A battle between the Buurabalayji Thalanyji Aboriginal Corporation, the operator of a solar salt field in Onslow in Western Australia’s Pilbara and the WA Government is set to go to trial.
The way was cleared for a courtroom showdown after the Federal Court dismissed a bid by Onslow Salt Pty Ltd and the McGowan Government to have the matter thrown out of court.
BTAC has taken court action against Onslow Salt and the government claiming the removal of up to 10 million cubic metres of sand and gravel from a mining lease was unlawful.
In a recent decision, Justice Neil McKerracher said the fill material was a “very substantial amount” and there were significant matters to be decided at trial.
“This material was not merely moved from one location within the site to another, but removed well off the site,” Justice McKerracher said.
“It is at least arguable that Native Title rights have been permanently affected in respect of the excavated area.
“In my view, that is sufficient for the matter to go to trial rather than to be summarily dismissed.”
In the dispute, BTAC says it holds certain Native Tile rights under a 2008 determination of the court.
Onslow and the WA Government have a solar salt agreement dating back to 1992 and the company has a mining lease for an area of land within the title area.
But BTAC claims that in 2012 sand and gravel started being removed from elevated areas in the native title area and used on energy giant Chevron Australia’s Wheatstone liquified natural gas project, adjacent to the salt mining area.
Justice McKerracher said “there was clearly a combination or agreement between Onslow Salt and Chevron” from the documents shown in court.
“There is also, at least at a prima-facie level, material which suggests Onslow Salt and Chevron’s true purpose (being for Chevron to obtain suitable fill),” he said.
Justice McKerracher said documents showed Onslow Salt’s calculations that Chevron would save an estimated $340 million by obtaining the fill from the salt mining area.
“Costs Chevron would save by not having to incur costs of long-distance haulage,” he said.
“There appears at this point to be evidence of the final payment of $75 million plus GST from Chevron to Onslow Salt.
“These matters may have been kept confidential from the Thalanyji people or BTAC (an issue which is yet to be determined) but on its face, at least at this stage, this appears to be so.”
BTAC is seeking damages.
BTAC is the registered Native Title body and prescribed body corporate for the Thalanyji People, the native title holders over Onslow, 1386kms north of Perth, and the surrounding area in WA.