BHP Billiton Limited v Schultz & Ors

The High Court of Australia, in chambers, considered an application by BHP Billiton Limited for leave to appeal against a decision of the Full Federal Court. The dispute concerned the alleged misleading and deceptive conduct of BHP in relation to its operations in Colombia, specifically concerning the alleged impact of those operations on the indigenous U'wa people. The U'wa people, represented by their elders and spokespersons, alleged that BHP's activities, including seismic testing and exploration for oil, had caused or were likely to cause them harm and damage to their ancestral lands, and that BHP had engaged in misleading or deceptive conduct in contravention of Australian consumer law.

The primary legal issue before the High Court was whether the Full Federal Court had erred in its determination that it had jurisdiction to hear the appeal from the Federal Court's decision. Specifically, the question revolved around whether the case involved a "federal matter" within the meaning of section 71 of the Constitution, thereby conferring jurisdiction on the Federal Court and, consequently, on the High Court to hear an appeal. BHP argued that the claims brought by the U'wa people did not engage federal jurisdiction, as they were essentially private law claims concerning tort and contract, albeit with an international dimension.

Kirby J, in chambers, ultimately granted leave to appeal. His Honour's reasoning focused on the nature of the claims as pleaded by the U'wa people. He found that the claims, as framed, invoked rights and protections that were arguably derived from or connected to international law and human rights principles, which could potentially engage federal jurisdiction. The assertion of rights related to indigenous land, cultural integrity, and environmental protection, when brought before an Australian court against an Australian corporation, raised questions that went beyond mere private disputes and touched upon matters of federal concern, particularly in the context of Australia's international obligations and the potential for extraterritorial application of Australian law in certain circumstances.

Leave to appeal was granted, allowing the substantive appeal to proceed to the High Court for determination.