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Third Party Access to Pilbara Railways (Outcome & subsequent events)
In May the Full Federal Court decided various appeals relating to access to Pilbara railways. The Court overturned the previous interpretation of declaration criterion (b). On 25 October 2011 the High Court granted Fortescue Metals Group special leave to appeal the Full Federal Court's decisions. Similar applications by the Council were referred to an enlarged bench for consideration. The Council expects these proceedings to be heard by the High Court in the first part of 2012.
Following the Council's recommendations and the Treasurers' decisions regarding the Mt Newman, Goldsworthy, Hamersley and Robe Railway services in the Pilbara, the Treasurers' four decisions were subject to reviews by the Australian Competition Tribunal. Following those reviews, two decisions of the Tribunal were subject to appeals to the Full Court of the Federal Court. The outcomes of these processes are set out below, starting with the most recent.
On 4 May 2011 the Full Court of the Federal Court handed down its judgment upon appeals by Rio Tinto and others (Rio) and Fortescue Metals Group and others (FMG) from decisions by the Australian Competition Tribunal relating to two of the four applications for access to Pilbara iron ore railways. Rio appealed from the Tribunal's decision to declare the Robe Railway Service, and FMG appealed from the Tribunal's decisions (a) not to declare the Hamersley Railway Service, and (b) to reduce the declaration period of the Robe Railway Service from 20 to 10 years. The Court upheld Rio's appeal and dismissed FMG's appeals. As a result of the decision, the 10 year declaration of Rio's Robe River railway service was set aside. The Court's judgment is available for download below.
Following the Full Federal Court's judgment, the status of the four Pilbara iron ore railways subject to declaration applications is now as follows:
- The Mt Newman Railway Service, owned and operated by BHP Billiton and related parties (BHP), is not declared.
- The Goldsworthy Railway Service, owned and operated by BHP, is declared for a 20 year period expiring on 19 November 2028.
- The Hamersley Railway Service, owned and operated by Rio Tinto Ltd and associated parties (Rio), is not declared.
- The Robe Railway Service, owned and operated by Rio, is not declared.
Rio and FMG had appealed from decisions of the Australian Competition Tribunal, The Tribunal had reviewed Treasurers' decisions relating to the four applications for access to Pilbara iron ore railways, and handed down its decisions on 30 June 2010.
Broadly, the Tribunal: affirmed Treasurer Wayne Swan's 20 year declaration of BHP Billiton's Goldsworthy Railway Service; affirmed the declaration of Rio Tinto's Robe Railway Service (albeit for a shortened period of 10 years); set aside Treasurer Swan's 20 year declaration of Rio Tinto's Hamersley Railway Service; and affirmed the then Treasurer Peter Costello's deemed decision not to declare BHP Billiton's Mt Newman Railway Service.
Available for download below are: (a) the public version of the Tribunal's statement of reasons (including the Tribunal's summary), and (b) the judgment of the Full Court of the Federal Court in the appeals from the Tribunal's decisions.
