Mining Royalties Determination of Percentages: Rirratjingu Aboriginal Corporation v Northern Land Council
Thursday 8 September 2016 @ 10.33 a.m. | Legal Research | Trade & Commerce
In Rirratjingu Aboriginal Corporation v Northern Land Council [2016] FCA 1017 (24 August 2016) Justice Mansfield of the Federal Court of Australia has ruled that the Northern Land Council (NLC) had the right to determine what percentage of mining royalties it pays to indigenous clans, parties to a mining agreement known as the Gove Agreement, made on 26 May 2011.
Background to the Case
This case involves a dispute relating to the distribution of mining royalties among members of the Yolngu clans known as the Rirratjingu, Gumatj and Galpu clans. The mining royalties were proceeds from mining activities on Aboriginal land located on the Gove Peninsula in the Northern Territory.
The relevant agreement (the Gove Agreement) was entered into between Swiss Aluminium Australia Pty Ltd and Gove Aluminium Ltd (RTA), the Arnhem Land Aboriginal Land Trust (the Land Trust), the Northern Land Council (the NLC) and representatives of the Rirratjingu, Gumatj and Galpu clans. In this arrangement, the three clans were considered by the NLC to comprise the traditional Aboriginal owners of the land affected by the activities carried on by RTA under the Gove Agreement. The NLC is the Land Council established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA) and is the relevant Land Council for the Gove Peninsula in North East Arnhem Land.
The Gove Agreement set out the rights in relation to Schedule 1 of the ALRA and was made pursuant to s 19 of the ALRA. The agreement allows for bauxite mining operations to be undertaken on Aboriginal land on the Gove Peninsula . Under the Gove Agreement one of the key NLC tasks is receiving the mining royalties payable quarterly and then paying an amount equal to the quarterly payments received to the traditional Aboriginal owners pursuant to its statutory duties under the ALRA.
The Key Issue
At the heart of the case was the Rirratjingu Aboriginal Corporation's (the RAC's) challenge to the NLC's distribution of hundreds of millions of dollars in mining royalties resulting from bauxite mine and alumina refinery created by the Gove Agreement. Currently, the NLC decided that most of the royalties, 70 percent should go to the Gumatj clan, leaving 30 percent going to the Rirratjingu clan with a small percentage going to the Galpu clan. In the current matter, the Rirratjingu argued they should have received half the mining royalties available instead of the majority being given to the Gumatj clan.
The Decision
Confirming his earlier decision (see Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36), Justice Mansfield dismissed the RAC's primary arguments, again rejecting the view that the court, rather than the land council, should decide how mining royalties were split. Justice Mansfield found that it was up to the clan groups to resolve the matter with mediation or negotiation, rather than pursue the a"very tangled web" of litigation through the courts - at para [102] of the judgment:
"As a general comment, that reflects the very tangled web that presently exists in this proceeding. In my view, this is a matter where the parties would be well advised, as I am sure they have been, to explore the resolution of the issues between them by private mediation or informal negotiation. It is in essence about the split of money received by the NLC in the interests of the traditional owners of the relevant country. The NLC has the statutory role of deciding upon allocating that money, but it has no individual interest in the money save for performing that statutory role."
The RAC's attempt to reframe the original 2015 case was dismissed, however Justice Mansfield gave the RAC leave to apply to amend an interlocutory application about a royalties decision made by the NLC in January 2015 - His Honour stating that he had not dismissed the entire case, which would have led to the initiation of new proceedings. It was in his Honours view "in the interests of justice" to have the matter resolved quickly - at para [103] of the judgment:
"Finally, I note that I have not overlooked the contentions of the NLC that, having disposed of the claims as expressed on the pleadings as current at 4 February 2015, and although I have by these orders refused the applicants or the third respondent the opportunity to revisit the earlier NLC allocation decisions, the consequence should be that under rr 30.02 and 31.05 of the Federal Court Rules, the proceedings should simply have been dismissed. I have not done that because, in my view and in the interests of justice, issues concerning the legal validity of the NLC decisions prospectively, that is including the 30 January Decision, should be addressed and resolved in as expeditious a manner as practicable. . . The issues raised are important. The Gove Agreement has many years to run, . . . The amendment of proceedings is probably the best vehicle to do so. . . . It will avoid or confront what might otherwise become a recurring sore in the relationship between the three clans."
Comment and Reaction
The ABC reports that RAC's chairman Bakamumu Marika as saying that the decision amounted to "stripping the clan group of its land rights":
"The Rirratjingu have received final confirmation from the Federal Court that they have no land rights — which are instead deferred to the NLC. . . . We are a ward of the state."
The NLC's chief executive Joe Morrison is reported by the ABC as saying:
"The Federal Parliament passed the Aboriginal Land Rights Act to put into place an independent body, that is the Northern Land Council, to be able to perform that function, . . ."
The RAC, it is reported, will lodge an appeal from the decision to the Full Federal Court.
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Sources:
Rirratjingu Aboriginal Corporation v Northern Land Council [2016] FCA 1017 (24 August 2016)
Rirratjingu Aboriginal Corporation v Northern Land Council
[2015] FCA 36; 324 ALR 240
Federal Court dismisses main arguments in 'tangled web' Arnhem Land mining royalties case (ABC News)
