(WA) and ratified it under the terms of the Onslow Solar Salt Agreement Act 1992 (WA) (‘State Agreement’). The mining lease covered an area of land located to the south-west of Onslow near the coast and within the native title area held in trust by BTAC.5
In March 1996, Onslow entered-into a ‘Deed’ with the Native Title Claimants of the Thalanyji people. The BTAC has been a party to this Deed since September 2008, representing the native title interests of the Thalanyji people regarding the terms of the Deed and any future act under a Future Act Agreement Agreement between Onslow and BTAC.
The State Agreement entitled Onslow to submit to the Minister for Mines proposals to expand, modify or otherwise vary its activities beyond its initially approved activities in the mining lease area. In January 2010, upon approval from the Minister for Mines, Onslow agreed to surrender to Chevron Australia Pty Ltd (‘Chevron’) 343 hectares of land within Onslow’s mining lease area as part of Chevron’s Wheatstone gas project principally to provide fill for flood mitigation.
In July 2017, BTAC commenced proceedings against Onslow and the State of Western Australia (‘State’) in the Federal Court concerning the above activities within the native title area.6 Onslow then brought an application for stay of BTAC's proceedings on the basis that BTAC had breached the requirements of their dispute resolution clause (which provided that a disputed question or difference to be referred to an independent expert) under the Deed.7 In response, BTAC submitted that there was no requirement for compliance with the dispute resolution clause as the nature of dispute in this particular matter fell outside the scope of the dispute resolution clause.
Upon consideration of the facts and relevant authorities,8 McKerracher J held that the dispute resolution clause of the Deed was not applicable in this instance and that the stay of proceedings sought by Onslow should be refused. His reasons were that, although parties should generally be held to their bargain in relation to a dispute resolution clause, such clauses do not oust the discretion of the court to hear the matter of the dispute in question.9 As a general proposition, a stay will not be granted in exceptional circumstances where it would be unjust to deprive the applicant of their right to have their claim heard in court. McKerracher J held that the use of an independent expert in the application of a dispute resolution clause, that can only produce an opinion that is non-binding on the parties, falls into that exceptional category whereby a stay will not be granted.10