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Irwin Mitchell Boosts Employment Team With Partner Hire

Law Firm Continues To Invest In Its Services For Senior Executives And Employees

National law firm Irwin Mitchell has boosted its London Employment and Professional Discipline team with the appointment of partner Danielle Parsons from Slater & Gordon.

Danielle is a leading lawyer representing senior executives and professionals in high value discrimination, whistleblowing and high court claims. She also advises on bonus disputes, severance packages and restrictive covenants.

Her clients come from a wide range of sectors including individuals working in financial services, healthcare and medical sectors, and creative industries, including TV and print media. She also acts for senior solicitors and barristers.

Shah Qureshi, Head of the Employment and Professional Discipline team in London at Irwin Mitchell, said:

Expert Opinion

“The past year has been a difficult time for many senior employees with the Covid pandemic creating a great deal of uncertainty. The need for expert employment law advice has never been greater.

“We are delighted that Danielle has joined us and her arrival is a welcome boost for the team. She is well-respected and will bring a high level of expertise for our clients. The number of enquiries we receive from senior professionals suffering discrimination and whistleblowers being victimised has grown exponentially since the start of the pandemic and Danielle’s arrival continues our plans to grow the team and meet that need.”
Shah Qureshi – Partner

Commenting on her arrival, Danielle said: “Irwin Mitchell’s national Employment team is one of the largest in the UK with one of the strongest reputations. I am delighted to join the firm’s London team which specialises in advising senior executives and professionals. I am looking forward to building on this and supporting the team’s continued growth.”

Fergal Dowling, partner and National Head of the Employment team, added: “Our team in London is one of the UK’s leading teams advising senior executives and professionals. Employment services have been in high demand amongst our existing clients and we have been appointed by some very high profile businesses and individuals during 2020. Our new business pipeline looks very strong and we are anticipating further growth over the next 12 months.

“Our success is based on us being one of the most innovative and best resourced employment teams in the UK. It is our vision to offer practical solutions for our clients as their needs and demands change and this has certainly been evident over the last year.

“Danielle joining our senior team is an important development for us in 2021 and I’m confident that her appointment will help us stay one step ahead.”

IP STARS 2021 RANKINGS

Gorodissky & Partners (Ukraine) once again was ranked among the best firms providing services in the field of trademark protection and enforcement according to the IP STARS 2021 rankings.

IP STARS is the world’s leading specialized intellectual property resource, conducting annual surveys since 1994 and covering more than 70 jurisdictions.

The results of the survey can be looked at under following the link:

Managing Intellectual Property

Jeantet Advised Telecom Invest a Management Trust with Natixis

Paris, 12th April 2021 – Jeantet AARPI advised Telecom Invest in the establishment of a management trust with Natixis CIB, fiduciary.

This unprecedented structuring will enable the trust set up by Télécom Invest and managed by Natixis CIB to acquire receivables in respect of leases on land used for telecommunications infrastructures and rights to manage them, without transferring real property rights.

Telecom Invest, a subsidiary of US-based APWireless (Radius Group), is a leading investor in telecom infrastructure underlyings around the world.

On this operation Jeantet’s team was composed of Catherine Saint Geniest (Partner, Real Estate), Jean-François Adelle (Partner, Finance), Jean-Guillaume Follorou (Partner, Tax), Gabriel di Chiara (Counsel, Tax), Thibault Mercier (Associate, Finance), of Laure Asdrubal and Chloé Abgrall (Associates, Real Estate).

Jeantet has significant experience in the fields of real estate management, investment and trusts and advises numerous French and international clients on their real estate and financial engineering transactions.

Natixis CIB was advised by Fidal and Bentam (Guillaume Ansaloni, Partner).

About Jeantet

Committed to ethics and human values, Jeantet is one of the leading independent French business law firms that delivers customized services with added value.

Our lawyers are fully aware of the economic, technological, sectoral, and legal changes our clients face and are able to anticipate, take action and propose solutions that are reliable, pragmatic and tailored to their clients’ challenges.

Well-established in its market thanks to solid foundations, Jeantet combines its excellence in legal expertise, in both advice and litigation, along with its entrepreneurial culture, to contribute to the success of its clients’ projects.

Jeantet, with a presence in Paris but also in Budapest, Casablanca, Geneva, Kiev, and Moscow, has more than 120 lawyers, including 30 partners.

New Dutch legislative proposal on transfer pricing mismatches

A new Dutch legislative proposal has been published for public consultation in order to prevent tax avoidance due to mismatches that relate to transfer pricing. At the same time two other proposals have been filed with respect to Atad2 application and qualification of foreign entities, which will not be covered in this news flash.

The legislative proposal includes a new Corporate Income Tax law article, which targets mismatches that exist because of commercial to tax differences that lead to a lower taxable income without a pick-up in the other jurisdiction. The main reason being that a different system is being applied in the other jurisdiction.
In the Netherlands, the arm’s length principle implies that associated enterprises within a group have to comply with the arm’s length principle for corporate income tax purposes. Commercially, transactions are not always aligned with the arm’s length principle which may lead to commercial to tax differences as a consequence. If other countries involved apply the arm’s length principle differently or not at all, the risk of mismatches arises.

Mismatches may result in double non taxation.
Examples are interest rates, a “step-up” for assets or additional income reported on transactions, which are adjustments to align with the arm’s length principle. This may lead to either an informal capital contribution or a deemed dividend from the perspective of the Dutch company. If such adjustments lead to a lower taxable income in the Netherlands, but not to an equally higher taxable income, pick-up, in the other country(ies) involved, the new article will apply.

According to the newly proposed art. 8ba VPB, the deductibility of for example interest rate adjustments will partly be rejected for negative tax to commercial differences, if the taxpayer is not able to proof that a corresponding upward adjustment is made at the end of the foreign entity. Also downward income adjustments or a “step up” for assets with corresponding depreciation, will only lead to a lower taxable income, if the transactions are declared accordingly in the other jurisdiction. It may also impact back-to-back financials transactions.
It is intended that this new article will come into effect on 1 January 2022.

 

The inability to pay debts test before the Maltese Courts

In its recent decision Xuereb v Weber Construction Limited Et (decided 18 March 2021) the Civil Court (Commercial Section) weighed in once more on the appropriate tests to be applied when assessing a company’s inability to pay its debts under Maltese corporate insolvency law. One of Weber Construction Limited’s (“Weber”) shareholders filed an application in court requesting the company’s dissolution and consequential winding up on the grounds inter alia that it was unable to continue to pay its debts.

Article 214(2)(a)(ii) of the Companies Act, 1995 (the “Act”) grants the court discretion to order the dissolution and winding up of a company where the company is “unable to pay its debts”. For the purpose of this provision, a company is deemed to be unable to pay its debts if (i) a debt due by the company has remained unsatisfied (in whole or in part) after 24 weeks from the enforcement of an executive act specified under Article 273 of the Code of Organisation and Civil Procedure; or (ii) it is proved to the court’s satisfaction that the company is unable to pay its debts, account being taken also of the company’s contingent and prospective liabilities.

It is only once one of the above tests is proved to the court’s satisfaction that a Maltese court may consider exercising its discretion whether to order a company’s dissolution and consequential winding up. Therefore, a clear understanding and correct application of the various insolvency tests contemplated under the Act is central to the court’s application of its discretion in this regard.

In approaching this issue, Maltese courts do, as a matter of settled practice, refer to the corresponding provisions of the UK Insolvency Act, 1986, on account of the conceptual similarity between the two legal systems where matters of corporate insolvency are concerned.Indeed, the court in Xuereb v Weber did concede that although the Maltese concept of insolvency adopted a more restrictive application than the test applied under English law, there were “overlaps” between the two tests.

Under English law, there are 2 principal tests of insolvency – the “cash flow” test (where a company is deemed to be insolvent on account of its inability to pay its debts as they fall due) and the “balance sheet” test (where a company is deemed to be insolvent in the event that its liabilities exceed its assets).

Retaining this distinction is also possible under Maltese insolvency law however, any reference to a Maltese version of the cash flow test or balance sheet test only works to the extent that the application of specific statutory requirements under the Act are akin to a “cash flow” and/or “balance sheet”-type insolvency scenario.

Our courts (including in Xuereb v Weber) have been prepared to regard the Article 214(5)(a) of the Act (requiring for a debt to remain unsatisfied, whether in whole or in part, following 24 weeks from the enforcement of an executive act) as resembling the cash-flow test under English law, affirming nonetheless that the English law requirement that a company be “unable to pay its debts as they fall due” is a far wider test than the requirements under the Maltese statutory provision.

Similarly, Article 214(5)(b) which speaks of a company’s inability to pay its debts, account being taken also of the company’s contingent and prospective liabilities, can be treated, strictly for comparative purposes, as the Maltese law conceptual counterpart to the English law “balance-sheet” insolvency test. Here again, the Maltese courts have repeatedly pointed out a significant difference between the two tests, notwithstanding the accepted conceptual similarity. Section 123(2) of the Insolvency Act 1986 prescribes similar yet not identical wording to Article 214(5)(b) of the Act and states that: “A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the company’s assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.”

Under the Maltese “version” of the balance-sheet test, a court’s determination would be limited to assessing a company’s ability (or lack thereof) to service its debts, account being taken also of its contingent and prospective liabilities. On the other hand, a court in England carrying out a similar determination would inquire about the value of the company’s assets compared to the amount of its liabilities (account taken also of contingent and prospective liabilities).

Statutory divergences notwithstanding, a Maltese court will invariably draw upon the body of case-law developed by the English courts in determining a potential exercise of the balance-sheet test to reach a conclusion of inability of pay debts under the Act. In Xuereb v Weber, the court looked to English jurisprudence on the treatment of “contingent and prospective liabilities” for the purpose of determining potential balance-sheet insolvency. In so doing, a Maltese court will embrace and make part of its own determination those important principles developed before the English courts on this subject, for instance, that a court is able to take into account contingent and prospective liabilities, but not contingent and prospective assets [Byblos Bank SAL v Al-Khudhairy (1986) 2 BCC99 549 (CA)].

Based on the evidence submitted, and following an analysis of the applicable jurisprudence, the court in Xuereb v Weber did express its satisfaction that the company was shown to be in a position where it was not able to pay its debts, account having been taken of its contingent and prospective liabilities.

Having ascertained a case of “balance-sheet” insolvency, the court ordered that Weber was to be dissolved, and appointed the Official Receiver as liquidator to the company to commence the winding up process.

Gibson Dunn Wins Awards at 2021 Benchmark Litigation US Awards

Benchmark Litigation recognized Gibson Dunn at its 2021 Benchmark US awards ceremony with six awards. Gibson Dunn was named East Coast Appellate Firm of the Year, California Antitrust Firm of the Year and California Labor & Employment Firm of the Year.  Additionally, Los Angeles partner Theane Evangelis was named California Labor & Employment Litigator of the Year and Washington, D.C. partner Richard Parker was named East Coast Antitrust Litigator of the Year. Finally, Soundgarden et al. v. UMG Recordings, Inc, in which Gibson Dunn represented UMG, was named an Impact Case. The publication noted, “The firm continues to enjoy a coveted position as one of the nation’s strongest and most in-demand litigation institutions.” The awards were presented on March 31, 2021.

Theane Evangelis serves as Co-Chair of the firm’s Class Actions Practice Group and as Vice Chair of the California Appellate Practice Group. She has played a lead role in a wide range of appellate, constitutional, media and entertainment, and crisis management matters, as well as a variety of employment, consumer and other class actions.

Richard Parker is a leading antitrust lawyer who has successfully represented clients before both enforcement agencies and the courts. As an experienced antitrust trial and regulatory lawyer, Richard has been involved in many major antitrust representations, including merger clearance cases, cartel matters, class actions, and government civil investigations.  He has extensive experience representing clients in matters before the Federal Trade Commission (FTC)  and the U.S. Department of Justice Antitrust Division.

Delaware M&A Quarterly

In The Williams Companies Stockholder Litigation, the Delaware Court of Chancery enjoined a shareholder rights plan adopted by The Williams Companies at the outset of the COVID-19 pandemic.  This “poison pill” had a package of novel features, including a 5% trigger (albeit with a passive investor carve-out) and an “acting in concert” provision that extended to “parallel conduct” between different investors, which together constituted “a more extreme combination of features than any pill previously evaluated” in Delaware. The court, in an opinion by Vice Chancellor McCormick, found that two of the board’s three objectives in approving the rights plan—namely, to prevent shareholder activism and protect against potential “short-termism” generally without any specific threat—were not legally permissible rationales to adopt a rights plan. The board’s third objective—preventing rapid and undisclosed accumulation of shares by activists—was assumed to be permissible under Delaware law, but was found not to justify the highly unusual features included in this particular pill. All that said, the court was clear that the concerns boards typically identify when adopting an activist defense pill—the potential for creeping control from share accumulations and the potential for negative control from an activist hedge fund having a level of share ownership that could give it outsized influence over the company’s decision-making—remain legitimate justifications for adopting a pill, especially when faced with evidence of accumulation. While it is very rare for Delaware courts to enjoin a rights plan, this decision is likely to have very little, if any, effect on market practice or on the ability of Delaware companies to use rights plans to protect themselves from inappropriate and excessive accumulations of shares by activist hedge funds.  For more, click here.

Court of Chancery Allows Aiding and Abetting Claims to Proceed in Pair of Decisions

While noting the high barriers to alleging an aiding and abetting claim, two Court of Chancery decisions denied motions to dismiss where the court found clear evidence of active and knowing misconduct. In the first, Firefighters’ Pension Sys. of the City of Kansas City, Missouri Trust v. Presidio, Inc., the plaintiff alleged that the company’s financial advisor tipped off the third-party acquirer, BC Partners L.P. (“BCP”), regarding a competing bid by Clayton, Dubilier & Rice, LLC (“CD&R”), thereby enabling BCP to bid only slightly higher and to put time pressure on CD&R’s response.  CD&R indicated that it could make a superior offer for the company, but not a binding one on the tight timeframe, and for that reason, among other concerns, the Presidio board accepted BCP’s lesser offer. The court, in an opinion by Vice Chancellor Laster, found that the aiding and abetting claims against both BCP and the financial advisor should survive the motion to dismiss.  The advisor’s failure to inform the board of its tip to BCP created an informational vacuum that led the board to breach its duty of care.  With respect to the claims against BCP, although viable aiding and abetting claims against a third-party bidder are unusual, the court noted that BCP knew the tip was wrong. The court also held that the plaintiff adequately alleged that the Presidio CEO was self-interested in the transaction and that he “steered the sale process” toward BCP because it promised to retain current company management with a potentially lucrative compensation package, while CD&R did not. Moreover, plaintiff sufficiently alleged that the CEO knew and failed to disclose to stockholders that the financial advisor tipped BCP. For the Presidio opinion, click here.

The second decision, In re Columbia Pipeline Group, Inc. Merger Litigation, involved the sale of Columbia Pipeline to TransCanada Corporation. Similar to Presidio, the plaintiffs alleged that the Columbia Pipeline CEO and CFO steered the sale process toward TransCanada and away from other bidders because the CEO and CFO desired to retire in the near-term and they believed that TransCanada would pay cash for the company, while the other bidders would not. Applying heightened scrutiny under Revlon, the Court of Chancery, in an opinion by Vice Chancellor Laster, held that it was reasonably conceivable that the CEO and CFO breached their fiduciary duties by steering the sale process for personal reasons toward TransCanada, including by ignoring TransCanada’s multiple alleged breaches of its standstill agreement, providing confidential information to TransCanada, telling TransCanada it was unlikely to face competition, providing the board with materially incomplete and inaccurate information about the company’s value, delaying the carrying out of board directives, downplaying the interests of other bidders to the board and making a “moral” commitment to TransCanada to only consider fully financed offers from other bidders.   According to the court, these fiduciary duty breaches prevented the sale price from reaching its potential value. In addition, the court held that the complaint adequately pled a claim against TransCanada for aiding and abetting the breaches of fiduciary duty by the CEO and CFO. The plaintiffs’ allegations, taken as true at this stage in the litigation, suggested that TransCanada knew that the CEO and CFO were breaching their fiduciary duties “and sought to take advantage of the situation.” Vice Chancellor Laster observed that there was a “constellation of allegations” supporting the claim, including, to take just one example, the CFO’s “extreme behavior” that involved the CFO literally handing a TransCanada executive, who was also a friend of the CFO, the company’s negotiating talking points and explaining (contrary to the company’s obvious interests and the advice of its professional advisors) that TransCanada’s bid was unlikely to face competition. These and other allegations, “taken together,” supported an inference of knowing participation and allowed the aiding and abetting claim to survive a motion to dismiss. For the opinion, click here.

Delaware Court of Chancery dismisses Caremark Claims Where Directors’ Actions Did Not Amount to Bad Faith

In Richardson v. Clark, the Delaware Court of Chancery, in an opinion by Vice Chancellor Glasscock, dismissed claims alleging that the directors of Moneygram International, Inc. breached their duties of oversight (so-called “Caremark duties”) by ignoring alleged red flags relating to the company’s anti-money-laundering controls. Moneygram, which provides money transfer services, entered into a settlement agreement with federal authorities relating to its alleged noncompliance with anti-money laundering requirements and charges that it aided and abetted wire fraud. The settlement required the company to make a large restitutions payment to injured customers and take other actions to prevent future wire fraud and money laundering. For several years the company complied with the settlement, but ultimately failed, and was eventually forced to extend the settlement agreement and pay an additional sum in restitution. The plaintiff brought Caremarkclaims alleging that the board ignored red flags to ensure that the company complied with the settlement agreement. The court dismissed the claims based on plaintiff’s failure to make a demand on the board, holding that while the directors “may be plausibly accused of feckless oversight and lack of vigor” and “may have been wistless or overly reliant on management” based on the alleged facts, their actions did not amount to bad faith such that they would face a substantial likelihood of liability for unexculpated breaches of the duty of loyalty. For the opinion, click here.

Delaware Directors Cannot be Targets of Derivative Breach of Contract Suit Premised on Alleged Charter Breach

In Lacey v. Larrea, the Delaware Court of Chancery, in an opinion by Vice Chancellor Glasscock, dismissed a derivative breach of contract claim brought against the directors of Southern Copper Corporation that was premised on an alleged breach of the company’s charter. While Delaware law recognizes charters as a contractual arrangement between stockholders and the company that sometimes binds fiduciaries, it was the company itself, acting through the board, that allegedly breached the charter, and therefore the company (on whose behalf the derivative claim was brought) did not have a breach of contract claim against the directors.  The court explained that the relationship between directors and their corporation is typically fiduciary, rather than contractual, and if any derivative claim is created by a failure on the part of the directors to comply with the entity’s formative documents, it is a claim for breach of fiduciary duty. For the opinion, click here.

LEX Law Offices advises LLCP on the acquisition of Creditinfo Group

Levine Leichtman Capital Partners (LLCP), a global private equity firm has acquired Creditinfo Group. Established in 1997 and headquartered in Reykjavík, Iceland, Creditinfo is a provider of credit information and risk management solutions worldwide.

Fanney Frímannsdóttir, attorney at LEX Law Offices, acted as local counsel to LLCP on the acquisition.

Protection applications made under the Commonwealth heritage protection legislation

What you need to know

  • Sections 9, 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) enable the Commonwealth Minister for the Environment to make a declaration for the protection and preservation of significant Aboriginal areas and objects from injury or desecration.
  • The Senate’s November 2020 Interim Report into the Juukan Gorge incident recommended an urgent review into the adequacy of the ATSIHP Act. These recommendations were echoed in the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Productivity Commission in its December 2020 report on Resource Sector Regulation.
  • Critical comments in these reports about the limited number of declarations under the ATSIHP Act are unlikely to reduce the continuing upward trend in declaration applications being made that began in 2019.
  • The Federal Court has also determined two judicial review applications in 2020, challenging decisions under the ATSIHP Act, revealing a willingness by the Court to interpret the words “Aboriginal tradition” in the ATSIHP Act broadly, acknowledging the complexities and nuances inherent in that phrase.

What you need to do

  • Be aware that a protection application under the ATSIHP Act is a powerful means by which Traditional Owners can express dissatisfaction with cultural heritage protection outcomes under State or Territory legislation.
  • Land users should be prepared for the release of the Senate Committee’s final report in October 2021 and the inevitable legislative reform that will follow.

Recap of the ATSIHP Act declaration application provisions

Sections 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984(Cth) (ATSIHP Act) enable an Aboriginal person or a group of Aboriginal people to make an application to the Minister (in writing or orally) seeking a declaration for the preservation or protection of a specific significant Aboriginal area from injury or desecration.

A critical precondition to a declaration is that the Commonwealth Minister forms the view that the area is not adequately protected under State or Territory legislation.

Protection applications made in 2020 and 2021

We reported on a number of 2019 ATSIHP Act protection applications in our 2019 Native Title Year in Review article Not so sleepy after all: Commonwealth gets involved in Aboriginal and Torres Strait Islander Heritage Protection.  As we predicted in that article, this trend has continued in 2020 and 2021.  We summarise the current suite of applications below:

  • Apparrlu on Murulag: This section 10 application was brought on behalf of the Kaurareg People for the purpose of protecting an area known as Apparrlu on Murulag (or Prince of Wales Island), and adjacent waters of the Torres Strait, Queensland.  The applicants sought to protect the area from roadworks and harbour works proposed by the Torres Shire Council.  In January 2020, the Reporter in this matter allowed an extension of time to make representations.  On 9 March 2021, the ABC reported that the Torres Shire Council had abandoned its construction plans after obtaining the report prepared in accordance with section 10(4) of the ATSIHP Act.
  • Former Anglican Holy Trinity Church grounds: A section 10 application was made on behalf of the Jerrinja Local Aboriginal Land Council to protect an area known as the former Anglican Holy Trinity Church grounds in Huskisson, New South Wales.  The applicant sought to protect the area from proposed commercial and residential development.  More details can be found here.
  • Ravensworth: A section 10 application was made to protect an area known as the “Ravensworth Estate”, and including Bowmans Creek and Glennies Creek in the Hunter Valley, New South Wales.  The applicants claimed the area was under threat of injury or desecration from mining activities. More details can be found here.
  • Warragamba Dam: This section 10 application, made by Aunty Sharyn Halls on behalf of the Gundungurra Aboriginal Heritage Association Inc, seeks to protect an area known as the Burragorang Valley, near Warragamba, New South Wales.  The applicant attributes the potential injury or desecration to the proposed raising of the Warragamba Dam walls.  More details can be found here.

Judicial review challenges to Ministerial decisions on protection applications

Third successful JR challenge to ATSIHP Act determination – Western Highway upgrade, Victoria

Onus v Minister for the Environment [2020] FCA 1807 involved a challenge to the Minister’s decision not to make a declaration to protect six trees, and their surrounding area, near Ararat in Victoria.  The applicants in this case had brought the application under sections 10 (protection of significant Aboriginal places) and section 12 (protection of significant Aboriginal objects) of the ATSIHP Act to protect the area and trees from the construction and realignment of the Western Highway.

This matter had a lengthy and complex history.  In December 2018, Minister Price declined to make the declarations sought.  That decision was quashed by consent by the orders of the Court and remitted for redetermination.  Minister Ley then made a July 2019 decision again refusing to make the declarations.  That decision was found to be invalid and the application was once again remitted for redetermination (see Clark v Minister for the Environment [2019] FCA 2027).  Following the Court’s order in Clark, Minister Ley made the determination the subject of this decision on 6 August 2020.

In respect of the section 10 application, the applicants argued that the Minister had failed to commission and receive a report under section 10(1)(c) of the ATSIHP Act.  They contended that a change in circumstances since the original report was completed meant that it was no longer relevant.  In the alternative, the applicants argued that the Minister’s failure to obtain an up-to-date report was unreasonable.

The Federal Court rejected the applicants’ arguments, noting that there is nothing in the Act requiring the Minister to obtain a further report when there is a significant change in the conduct being assessed.

The applicants also sought a declaration under section 12 of the ATSIHP Act to protect the trees as significant Aboriginal objects.

While the Minister was satisfied that five of the six trees were significant Aboriginal objects, she did not accept that they were under threat of injury or desecration from the highway alignment.

Griffiths J held that the Minister had acted unreasonably and/or on an incorrect understanding of the law.  His Honour found that the Minister had committed three reviewable errors.  Firstly, the Minister had overlooked some of the material and focused instead on whether the trees would be physically injured.  In doing so, she fell into the same reviewable error identified by the Court in Clark. Griffiths J stated that the Minister had failed “to grapple with the complex and nuanced cultural and spiritual heritage associated with the trees and the effect on that heritage by the alignment of the highway in proximity to them” (at  [121]).

Secondly, the Minister had concluded that the trees were not under threat of injury or desecration without knowing precisely the physical proximity of the highway alignment to the trees.

Thirdly, the Minister had failed to consider the application in so far as it related to the relationship between the five trees and the area beyond the Specified Area.

Griffiths J found that the Minister’s findings and reasonings in relation to the section 10 application could be severed from those relating to the section 12 application.  On that basis, his Honour directed that only the section 12 decision be set aside.

Griffiths J ordered Minister Ley to refer the section 12 application for reconsideration and determination by another Minister with responsibility for administering the Act, given this would be the third time Minister Ley had considered the section 12 application, with the previous two attempts having been set aside for jurisdictional error.

Minister may take into account the social and economic impacts of a declaration on non-Indigenous persons – application not successful in relation to Shenhua Watermark Coal Mine in NSW

In Talbott v Minister for the Environment [2020] FCA 1042, the applicant (on behalf of the Gomeroi Traditional Owners) applied for judicial review of the Minister’s decision not to make a section 10 declaration over areas located within or close to the proposed Shenhua Watermark Coal Mine near Breeza in New South Wales.

The Minister had determined that the areas were “significant Aboriginal areas” for the purposes of the Act.  She was also satisfied that the areas were under threat of injury or desecration.  However, the Minister concluded that, on balance, the social and economic benefits of the mine to the local community outweighed the impacts on the applicant’s cultural heritage.

The applicant argued that the Minister had taken into account an irrelevant consideration by considering the social and economic impacts of the mine on the local community.  It was argued that there is a limitation on the matters the Minister may take into account when determining a section 10 declaration arising from the Act’s constitutional source of power in section 51(xxxvi) of the Constitution (known as the race power).

The Federal Court rejected this argument, stating at paragraph 91:

The Heritage Act is a law that operates in connection with the subject matter of s 51(xxvi).  It does not cease to operate in connection with that subject matter because it confers a discretion as to whether or not to make the declaration in s 10, which may be exercised by reference to, inter alia, non-racial considerations such as the social and economic impacts on the community of the declaration.

The application for judicial review was therefore dismissed.

On 1 September 2020, the SBS reported that the applicant had lodged a new application to protect the area, however this further application has not yet been notified in the Australian Government gazettes.

Calls for legislative reform 

The Senate’s November 2020 Interim Report into the Juukan Gorge incident recommended an urgent review the adequacy of the ATSIHP Act. These recommendations were echoed in the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999(Cth) (EPBC Act) and the Productivity Commission in its November 2020 report on Resource Sector Regulation.

The reports were highly critical of the limited number of declarations under the ATSIHP Act.  According to the Productivity Commission Report there have been only 7 long term declarations made, out of 500 applications, since the commencement of the Act in 1984.  The reports recommended that the Commonwealth Minister play a more active role under the ATSIHP Act to protect cultural heritage, rather than deferring to State legislative processes and using the ATSIHP Act as a last resort.

It is yet to be seen how this recommendation will play out in the Minister’s consideration of applications for protection declarations under the ATSIHP Act.

Key Insights

The current level of legal, social and political developments in the Aboriginal cultural heritage space is unprecedented.  Calls for reform have come not just from the Senate, but from the Independent review of the EPBC Act and the Productivity Commission report on Resource Sector Regulation.

Protection applications under the ATSIHP Act are a powerful means by which Traditional Owners can express their dissatisfaction with cultural heritage protection outcomes under State or Territory legislation.

Land users should be prepared for the release of the Senate Committee’s final report into the Juukan Gorge incident in October 2021 and the inevitable legislative reform that will follow.

Europe and UK’s Response – Critical Raw Materials Supply Chains

“To solve global warming, we have to fully electrify the entire economy, including the transportation fleet. There are currently 1.3 billion cars on the planet. By mid-century, that will be close to 3 billion, just light duty cars. To make all of those electric vehicles, as opposed to internal combustible engine, you’ll need more than $5 trillion worth of cobalt, nickel, lithium and copper. That’s incremental, in addition to all the demand for those materials, for just business as usual activities.” CEO Kurt House, KoBold.

This is just one of the many similar public statements from governments, business owners and investors drawing attention to the scale of the task ahead to transition societies and industries to a world where energy needs will depend less on fossil fuels and more on green energy and, as will be seen, is the focus of recent western government actions and policies.  Cobalt, nickel, lithium and copper are in relatively abundant supply. But that is not the case with other minerals, such as rare earths. Without these particular “critical raw materials” there will be no large-scale development of the magnets that will power the EVs and wind turbines which are crucial to the success of green energy policies in the western world.

China has dominated the global mining production of REE, the processing of REE into RE metals and alloys, and the manufacture of permanent magnets for the last 20 or so years.  Whilst China’s share of the world’s REE mining has declined in recent years, it still manufactures around 90% of all NdFeB metals and magnets. In 2018 China supplied the EU with 98.5% and the USA with 95.2% of their respective imports of RE metals and alloys.

The creation of resilient non-Chinese rare earth to magnet supply chains (NCSC) is now the focus of many western governments to reduce their reliance on Chinese imports.

What are “rare earth elements” and “permanent magnets”?

Rare earth elements (REE) are a group of 17 chemical elements that occur together in the periodic table. They are very difficult to mine because they are rarely found in economically extractable concentrations.

REE and metals and alloys that contain them are used in many everyday devices such as batteries, smart phones, catalytic converters, magnets, fluorescent lighting and much more. They also play an essential role in defence electronics in precision-guided weapons and communications equipment.

They are considered to be “critical raw materials” (CRM) because of their “critical” importance, in particular to the production of the magnets that power electric vehicles (EVs) and wind turbines.

A “permanent magnet” is an object made from material that is magnetized and creates its own persistent magnetic field – an everyday example is the simple “fridge” magnet. The strongest, lightest and most commercially available permanent magnet is the NdFeB magnet formed by neodymium (Nd) iron, and boron with praseodymium (Pr) and other REE. This is the magnet most commonly used in motors for hybrid vehicles, EVs and wind turbines.

The global demand for NdFeB magnets is projected to double this decade. The European Commission’s long-term outlook is, “In addition to rapidly rising demand driven by electric vehicles and energy storage, demand for rare earths critical for products like wind turbines could increase ten-fold by 2050”.

Western governments’ actions and initiatives.

A key objective of the establishment and maintenance of resilient CRM supply chains into the west is to ensure that the necessary components for the manufacture of the equipment and infrastructure that is crucial to achieving the transition to sources of greener energy, is increasingly independent of, and less reliant on, China.

Government support for the REE industry in general and NCSC in particular is essential if the private sector is to be able to economically produce the crucial components for the EV and wind turbine sectors. Support will need to come in many forms, including grants, tax allowances, debt financing and equity investment.

Over the last 12 months or so several western governments have announced initiatives and policies in relation to CRM which are necessary to transition to an energy system which is substantially less dependent on fossil fuels.

European Union

In September 2020 the European Commission released its Critical Raw Materials Action Plan focussing on “the most pressing need, which is to increase EU resilience in the rare earths and permanent magnets value chains, as these are vital to most EU industrial ecosystem”.

United Kingdom

The UK Government does not have a critical raw materials policy as such.

On 15 March 2021 in the course of his speech to the House of Commons, the Vice-Chair of the All-Party Parliamentary Group for CRM outlined the Group’s priorities in terms of government policy including “the development of a critical mineral midstream” i.e. the production of RE metals and alloys and the manufacture of RE permanent magnets in the UK.

The UK government’s objectives are ambitious; current policy identifies 2030 as the year when:

  • offshore wind turbines will produce more than enough electricity to power every home in the country; and
  • sales of cars with internal combustion engines will be banned.

 US

In 2017 President Trump initiated a strategy to ensure secure and reliable supplies of CRM. In February this year, President Biden ordered reports within 100 days from a variety of government agencies, identifying the risks in the supply chains for CRM including REE and policy recommendations to address those risks.

Canada

In March 2021, Canada, a major resource economy, released its list of minerals considered critical for the sustainable success of Canada and “our allies”.

Australia

Another major resource economy, Australia, earlier this year released its 10-year “road map” to create more REE processing capacity as part of a broader push to make Australia one of the developed world’s linchpin suppliers of REE and other CRM.

International cooperation

The policies of EU, UK, US, Canada and Australia all acknowledge that the establishment of NCSC to meet their projected domestic REE processing and magnet manufacturing ambitions will require international cooperation and investment.

Examples of such cooperation include:

Europe

The European Raw Material Alliance (ERMA) is an alliance of organisations from the European public and private sectors covering the entire critical raw materials value chain. Its immediate objective is to increase the resilience of EU supply chains for rare earth magnets and motors, batteries, and fuel cells.

The EU’s Action Plan highlights the need to diversify sourcing of CRM from third countries requiring “strategic international partnerships and associated funding to secure a diversified supply of sustainable critical raw materials, including through undistorted trade and investment conditions, starting with pilot partnerships with Canada, interested countries in Africa and the EU’s neighbourhood”.

US – Canada

In June 2019, the US and Canadian governments agreed to develop resilient, integrated North American supply chains for CRM. A Critical Minerals Working Group has been established and Canada now participates in the US-led Energy Resource Governance Initiative.

US – Australia

In September 2019, the US and Australian governments agreed to develop a Critical Minerals Action Plan to “improve the security and supply of rare earths and other critical minerals in the United States and Australia; increase US-Australia connectivity throughout the supply chain of critical minerals; and leverage the interest of other like-minded partners to improve the health of the global critical minerals supply chain.”

US, Canada and Australia

The US, Canada and Australia have created the Critical Minerals Mapping Initiative to assist with the building of a diversified critical minerals industry.

US, UK, Canada, Australia and New Zealand – The “Five Eyes”

There have been several press reports concerning the possible expansion of the “Five Eyes” intelligence-sharing alliance into a strategic economic relationship that pools key strategic reserves such as CRM and develops NCSC amongst its members.

In its March 2021 Report, the Polar Research and Policy Initiative recommended the creation of a Five Eyes Critical Minerals Alliance with a particular focus on Greenland’s CRM deposits.

Conclusion

It is early days yet to assess the effectiveness of these policies in the development of NCSC to produce permanent magnets that will be price competitive with Chinese producers. There is considerable private sector activity around “the development of a critical mineral midstream” (with government support) but, as The Times’ editorial on 5 April warns, “[T]o reduce reliance on Beijing, the first step is to mine rare earths in new locations”, an issue we consider in the next article in this series.