Tjiwarl Aboriginal Corporation RNTBC and State of Western Australia [2021] FCA 438 (Tjiwarl Compensation Case)
Mediation proceedings were held in April 2023 in the Federal Court proceedings brought by the Tjiwarl Aboriginal Corporation in respect of their claim area covering a large area in the Goldfields, including the town of Leinster. The Tjiwarl people have been seeking compensation for damage and loss of access to land as a result of acts by the WA Government and mining companies. The loss includes spiritual harm.
Leave had been granted in 2021 for 14 mining companies to join the claim out of time on the basis that those companies may be liable to pay compensation under the “pass through” provisions of the Native Title Act 1993 (Cth) (NTA). The NTA permits a State or Territory to legislate that a person other than the Crown is liable to pay compensation in relation to particular acts and Western Australia had legislated for this in relation to particular mining acts in section 125A of the Mining Act.
The Tjiwarl Compensation Claim had been regarded as a landmark case, being the first in WA to cover land the subject of mineral resource interests, with considerable interest around how State and Territory “pass-through” provisions would be treated at the Federal level. It was also expected to provide guidance on how to value compensation for the impact on native title of mining and mining-related acts, including for spiritual harm (recalling that the High Court, in its 2019 Timber Creek decision, was not required to address this question).
This did not get to be decided in Court. On 23 May 2023, the McGowan Government and the Tjiwarl Aboriginal Corporation announced that they had reached a settlement resulting in the finalisation of the Tjiwarl Palyakuwa (Agreement), an Indigenous Land Use Agreement (ILUA). It provides compensation to the Tjiwarl Native Title Holders for the effect of various acts by the State on their native title, including:
- monetary compensation of $25.5m, and funding for a socio-economic baseline study;
- the transfer of ownership of land parcels to Tjiwarl, the creation and expansion of the Tjiwarl Conservation Estate and the recognition of exclusive native title rights under s.47C of the Native Title Act 1993 (Cth) within the Tjiwarl Conservation Estate;
the involvement of Tjiwarl in the ongoing management of water on Tjiwarl country, including processes with respect to the assessment of licences under the Rights in Water and Irrigation Act 1914 (WA); - Tjiwarl specific future act processes for the grant of certain mining tenements and petroleum titles on Tjiwarl country; and
- support and funding to unlock economic opportunities for Tjiwarl Native Title Holders such as procurement and contracting, sandalwood and carbon initiatives.
The ILUA also includes support for the recognition or protection of Tjiwarl languages, culture, heritage and history.
Exploration companies may be interested in the Tjiwarl Exploration Agreement which forms Annexure 6 to the ILUA.
At the time of this report, it is understood that some but not all of the mining companies joined in the claim have entered into separate settlement arrangements with the Tjiwarl Aboriginal Corporation.