Burragubba v State of Queensland
[2016] FCA 984
•19 August 2016
FEDERAL COURT OF AUSTRALIA
Burragubba v State of Queensland [2016] FCA 984
File number: QUD 344 of 2015 Judge: REEVES J Date of judgment: 19 August 2016 Catchwords: ADMINISTRATIVE LAW – application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) – whether the decision of the National Native Title Tribunal was induced by circumstances analogous to fraud – whether s 5(1)(g) of the ADJR Act extends to circumstances analogous to fraud – in the alternative whether the Tribunal failed to observed procedures that were required by law under s 5(1)(b) of the ADJR Act – whether the Tribunal erred in construing s 39(1) of the Native Title Act 1993 (Cth) (NTA) – whether the Tribunal failed to take into account a relevant consideration in respect of material relevant to the criteria in s 39(1) of the NTA – whether the Tribunal failed to observe the rules of natural justice, or failed to exercise its jurisdiction by failing to make an inquiry under s 139(1) of the NTA Legislation: Aboriginal Cultural Heritage Act 2003 (Qld)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)
Crimes Act 1914 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Protection Act 1994 (Qld)
Migration Act 1958 (Cth)
Mineral Resources Act 1989 (Qld)
Native Title Act 1993 (Cth)
Proceeds of Crime Act 2002 (Cth)
State Development and Public Works Organisation Act 1971 (Qld)
Trade Practices Act 1974 (Cth)
Weapons Regulation 1996 (Qld)
Cases cited: Adani Mining Pty Ltd v Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People [2015] NNTTA 16
Adani Mining Pty Ltd v Land Services Coast and Country Inc & Ors [2015] QLC 48
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Anderson on behalf of the Wulli Wulli People v Queensland (2011) 197 FCR 404; [2011] FCA 1158
Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 29; [2006] NSWLEC 725
Ankamuthi People v Queensland (2002) 121 FCR 68; [2002] FCA 897
Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barrett v Minister for Immigration, Local Government & Ethnic Affairs (1989) 18 ALD 129
Bullen v State of Western Australia (1999) 96 FCR 473; [1999] FCA 1490
Butchulla People v Queensland (2006) 154 FCR 233; [2006] FCA 1063
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Combet v Commonwealth (2005) 224 CLR 494; [2005] HCA 61
Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167) (2012) 293 ALR 257; [2012] HCA 55
Craig v South Australia (1995) 184 CLR 163
Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160
Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26; [2000] QSC 159
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39
Forster v Legal Services Board (2013) 40 VR 587; [2013] VSCA 73
Glennan v Commissioner of Taxation (Cth) (2003) 198 ALR 250; [2003] HCA 31
Hallahan v Campbell; Ex parte Campbell (No 2) [1964] Qd R 337
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216
Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387; [2000] FCA 524
Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981
Jones v Commissioner of Police (1990) 20 ALD 532
Kioa v West (1985) 159 CLR 550
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542
Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1
Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24
Majzoub v Kepreotis [2009] NSWSC 1498
Meek v Fleming [1961] 2 QB 366
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142
Monkey Mia Dolphin Resort v Western Australia (2001) 164 FLR 361; [2011] NNTTA 50
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7
Placer (Granny Smith) Pty Ltd v Western Australia (2000) 170 FLR 469
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412; [2010] FCA 1019
Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13; [2014] FCAFC 70
R v Bolton Magistrates Court; Ex parte Scally [1991] 1 QB 537
R v Deland; Ex parte Willie (1996) 6 NTLR 72
R v Knightsbridge Crown Court; Ex parte Goonatilleke [1986] QB 1
R v Leyland Justices; Ex parte Hawthorn [1979] QB 283
R v Secretary of State; Ex parte Al-Mehdawi [1990] 1 AC 876
R v Wolverhampton Crown Court; Ex parte Crofts [1983] 1 WLR 204
Seven West Media Ltd v Commissioner, Australian Federal Police (2014) 223 FCR 234; [2014] FCA 263
Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 282 ALR 56; [2011] FCA 833
Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871
Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12
Tombling v Universal Bulb Co [1951] 2 TLR 289
Transport Accident Commission v Dohnal (1996) 25 MVR 232
Vernon v Bosley (No 2) [1999] QB 18
Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103
Weribone v Queensland (2011) 197 FCR 397; [2011] FCA 1169
Western Australia v Sebastian (2008) 173 FCR 1; [2008] FCAFC 65
Western Australia v Ward (1996) 70 FCR 265
Date of hearing: 23 and 24 November 2015; 1 and 2 February 2016; 20 May 2016 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 321 Counsel for the Applicant: Mr C Leggat SC with Mr M Steele and Mr D Yarrow Solicitor for the Applicant: Boe Williams Anderson Counsel for the First Respondent: Mr G Del Villar with Mr M McKechnie Solicitor for the First Respondent: Crown Solicitor of Crown Law Counsel for the Second Respondent: Mr B O’Donnell QC with Mr A Stumer Solicitor for the Second Respondent: Herbert Smith Freehills Counsel for the Third Respondent: The Third Respondent filed a submitting notice ORDERS
QUD 344 of 2015 BETWEEN: ADRIAN BURRAGUBBA
Applicant
AND: STATE OF QUEENSLAND
First Respondent
ADANI MINING PTY LTD
Second Respondent
NATIONAL NATIVE TITLE TRIBUNAL
Third Respondent
JUDGE:
REEVES J
DATE OF ORDER:
19 August 2016
THE COURT ORDERS THAT:
1.The third further amended originating application filed on 25 May 2016 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION
Mr Adrian Burragubba is a member of the Wangan and Jagalingou People. Along with two others, he is also a member of the Applicant that the Wangan and Jagalingou People have authorised to make and pursue a native title determination application on their behalf under the apposite provisions of the Native Title Act 1993 (Cth) (the NTA). Henceforth, in these reasons, I will describe that native title determination application as the “Wangan and Jagalingou application” and the Applicant as the “WJ Applicant”.
In this proceeding, Mr Burragubba seeks to challenge a determination made on 8 April 2015 by a member of the National Native Title Tribunal (the Tribunal), the third respondent ([2015] NNTTA 16). That determination related to the proposed grant of two mining leases in the Galilee Basin in central Queensland.
The State of Queensland, the first respondent, proposed to grant the mining leases in question to Adani Mining Pty Ltd (the second respondent) in order to allow Adani to develop a large coal mine to be known as the “Carmichael Mine”.
Because the areas of the proposed mining leases are located within the claim area of the Wangan and Jagalingou application, they could only be validly granted under the NTA if, broadly stated, after negotiations with the representatives of the State, Adani and the Wangan and Jagalingou People, the latter agreed to those grants being made or, failing such an agreement, if the Tribunal made a determination under s 38 of the NTA that they may be made, with or without conditions.
This process of negotiation, agreement or, failing agreement, a Tribunal determination under the NTA is set out in Part 2, Division 3, Subdivision P (ss 25 to 44) and is generally described as the “right to negotiate process”.
To make his challenge to the Tribunal’s determination, Mr Burragubba has relied on the provisions of s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). He has advanced the four grounds which can be summarised as follows:
(a)Adani’s conduct before the Tribunal was analogous to fraud in that it dishonestly misled the Tribunal by submitting the economic section of the Executive Summary to Environmental Impact Statement (EIS) for the Carmichael Mine project to the Tribunal and deliberately refrained from providing the expert’s reports that it had placed before the Land Court of Queensland, which drew materially different conclusions about the economic benefits that would flow from the project in terms of jobs and economic activity (ground 1).
(b)The Tribunal erred in construing the provisions of s 39(1) of the NTA and, as a consequence, improperly failed to take account of certain materials that Mr Burragubba and another person had placed before it (grounds 2 to 4 inclusive).
It is important to record at the outset that Mr Burragubba’s position in this proceeding was not supported by the other two persons who, at the time, made up the WJ Applicant.
While the Tribunal itself is also a respondent in this proceeding, in accordance with the usual practice, it has filed a submitting appearance.
THE FACTUAL BACKGROUND
Before analysing the Tribunal’s Reasons for determination (the Reasons), it is convenient to describe the complex factual background to this proceeding. In the course of this description, I will also identify the apposite provisions of the NTA as they arise.
The filing and registration of the Wangan and Jagalingou application
The Wangan and Jagalingou application was originally filed in the Court on 27 May 2004. It was registered on the Register of Native Title Claims (s 190(1)(a)) on 5 July 2004. It covers an area of approximately 30,277.6 square kilometres located on the western edge of central Queensland and includes the townships of Clermont, Alpha, Rubyvale and Capella. The native title rights and interests described in the entry relating to the Wangan and Jagalingou application on the Register of Native Title Claims (s 186(1)(g): see further below at [14]) are important because those rights and interests are central to the operation of the right to negotiate process in Subdivision P (see further at [11]–[26], [247]–[261] below). That entry describes those rights and interests in the following terms:
Rights and Interests
1.Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where s238, ss47, 47A or 47B apply), the Wangan and Jagalingou People claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.
2.Over areas where a claim to exclusive possession cannot be recognised the Wangan and Jagalingou claim the following rights and interests:
(a)To access, be present on, move about on and travel over the area
(b)To camp on the area and for that purpose, erect temporary shelters on the area
(c)To hunt, fish and gather on the land or waters of the area for personal, domestic and non-commercial communal purposes
(g)To have access to, take and use natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes
(i)To conduct ceremonies in the area
(j)To maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places
(k)Teach on the area the physical and spiritual attributes of the area
(l)To be buried or bury native title holders on the area
(m)To live on the application area
(n)To move about the application area
(p)To make decisions about the use and enjoyment of the area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged and observed by the native title holders
(q)To transmit the cultural heritage of the native title claim group including knowledge of particular sites
The native title rights are subject to and exercisable in accordance with:
(a)The valid laws of the State of Queensland and the Commonwealth of Australia;
(b)The traditional laws acknowledged and the traditional customs observed by native title holders.
It is unnecessary, for the purpose of this proceeding, to describe what has, or has not, occurred in the progress of the Wangan and Jagalingou application in the 12 years (approximately) since it was originally filed.
The right to negotiate process begins
On 9 October 2013, the State gave notice under s 29 of the NTA of its intention to grant the two mining leases mentioned above (ML70505 and ML70506) to Adani. That notice marked the commencement of the right to negotiate process referred to above. Such a notice is necessary where the Commonwealth, or a State or a Territory proposes to undertake a future act (as defined in s 233) of a kind described in s 26. In this instance, the grant of the two mining leases was such a future act. In particular, it was of a kind described in s 26 of the NTA because it involved the “creation of a right to mine … by the grant of a mining lease” (see s 26(1)(c)(i)). Section 29(4) of the NTA requires such a notice to specify a notification day. 30 October 2013 was the notification day stated in this notice. The notice contained some other pertinent details as follows:
(a)that the first proposed lease (ML70505) covers approximately 16,960 hectares (169.60 square kilometres) located approximately 144 kilometres north west of Clermont within the Isaac Regional Council;
(b)that the second proposed lease (ML70506) covers approximately 1588 hectares (15.58 square kilometres) located approximately 173 kilometres West North West of Clermont within the Isaac Regional Council;
(c)that the grant of the leases would authorise Adani to mine and carry out associated activities under the Mineral Resources Act 1989 (Qld) (Minerals Act) for a term not exceeding 30 years with the possibility of renewal for a term not exceeding 30 years.
The negotiation process that is set in train by a s 29 notice (assuming the expedited procedure in s 32 does not apply, which it did not in this instance) is described in s 31(1) of the NTA in the following terms:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii)the doing of the act subject to conditions to be complied with by any of the parties.
The “negotiation parties” for the purposes of s 31(1)(b) above are prescribed by s 30A of the NTA as: the Government party; any native title party; and any grantee party. In this matter, the Government party (defined by s 26(1)(b)) was the State, and the grantee party (defined by s 29(2)(c)) was Adani.
Sections 29(2) and 30(1) of the NTA identify the persons who comprise the “native title party”. In this matter, because there was no registered native title body corporate in relation to any of the area in question (s 29(2)(a)), the only native title party was the “registered native title claimant” (s 29(2)(b)(i)) for the Wangan and Jagalingou application. The expression “registered native title claimant” is defined in s 253 of the NTA to mean: “in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters”. The words “a person or persons” are plainly intended to accommodate the circumstance that often occurs of more than one person being authorised by a native title claim group to constitute the applicant. The same terminology is used in s 61(1) and s 251B. The Register of Native Title Claims is established under s 185 and the Native Title Registrar is required under s 190 to maintain that Register. Section 186 prescribes the information that must be included in the Register. Under s 186(1)(d), the Register must contain “the name and address for service of the applicant”. This is the only mention of the expression “the applicant” in s 186.
The other entry in the Register that is of importance in this matter has already been mentioned above (at [9]): the native title rights and interests under s 186(1)(g).
The information recorded in the Register for the Wangan and Jagalingou application (as at 7 August 2014), insofar as it related to s 186(1)(d), was as follows: “Applicants: Adrian Burragubba, Patrick Malone, Irene White”. It should be noted that the use of the plural “Applicants” in this entry is not consistent with the definition in s 253, nor s 61(2)(c) of the NTA where the singular expression “applicant” is used.
The entry above was altered to that form following orders made by Collier J on 7 August 2014 under s 66B of the NTA. Those orders replaced the seven existing members of the WJ Applicant with the three persons named in the entry above. It should be noted that Mr Malone and Ms White were among the seven previous members of the WJ Applicant, so Mr Burragubba became the only new member under those orders. For completeness, I also note that on 21 August 2015, after the Tribunal’s determination was made, I made orders under s 66B of the NTA replacing the abovementioned three members of the WJ Applicant with 12 members, including the three existing members named above.
At this stage, in order to avoid entering the controversy as to the meaning of the expression “native title party”, I will refer to the registered native title claimant or, to use the words of the definition in s 253, the person or persons whose name or names appear as the WJ Applicant in the entry on the Register as: the Wangan and Jagalingou native title party.
Adani applies to the Tribunal
Section 35(1) of the NTA places a six months time limit on the negotiation process prescribed by s 31. It provides:
Any negotiation party may apply to the arbitral body for a determination under section 38 in relation to the act if:
(a) at least 6 months have passed since the notification day (see subsection 29(4)); and
(b)no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act.
In this matter, the Tribunal was designated as the arbitral body under s 27(2)(b) of the NTA. Section 75 of the NTA confirms the right of a negotiation party to make such an application to the Tribunal and describes the application as a right to negotiate application.
On 10 October 2014, relying upon the above provisions, Adani applied to the Tribunal for a determination under s 38 of the NTA. It actually filed two applications, one with respect to each mining lease (ML70505 and ML70506).
There were, in this matter, only three kinds of determination open to the Tribunal under s 38(1) of the NTA. They were:
(a)a determination that the act must not be done;
(b)a determination that the act may be done;
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
Section 36(1) of the NTA requires the Tribunal to “take all reasonable steps to make a determination in relation to the act as soon as practicable”.
Section 36(2) permits a negotiation party to attempt to satisfy the Tribunal that any other negotiation party did not negotiate in good faith, as required by s 31(1)(b) (above). While this matter was the subject of certain directions the Tribunal member made on 23 October 2014 (see at [27] below), none of the parties subsequently sought to raise it as an issue in Adani’s right to negotiate applications.
Part 6, Division 5, Subdivision B of the NTA sets out the procedural requirements the Tribunal must follow when it is conducting an inquiry in relation to, among other applications, a right to negotiate application. In particular, s 141(2) provides that “[t]he parties to an inquiry in relation to a right to negotiate application are the Government party, the native title parties and the grantee parties”. That is, in this matter, the State, the Wangan and Jagalingou native title party and Adani, respectively. Section 143 provides that “[a] party may appear in person or may be represented by a barrister, a solicitor or another person”. Subject to various provisions that are not relevant for present purposes, s 142 provides that the Tribunal:
must ensure that every party is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in making a determination in the inquiry and to make submissions in relation to those documents.
Finally, s 151(2) of the NTA allows the Tribunal to make a determination “on the papers”. That is:
by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.
The Tribunal’s directions
On 23 October 2014, the Tribunal member convened a preliminary conference of the parties to Adani’s right to negotiate applications. Putting aside matters that are not relevant for present purposes (see at [24] above), at that conference, the Tribunal member made the following directions requiring the parties to submit their statements of contentions and supporting materials addressing the criteria outlined in s 39 of the NTA:
6.On or before 16 January 2015 the Grantee Party and the Government Party are to provide to the Tribunal and each of the other parties:
(a)a statement of contentions, in particular addressing the criteria relevant to them in section 39 of the Native Title Act 1993 (Cth) including:
(i)the nature of the proposed mining lease, in as much detail as possible;
(ii)the economic or other significance of the grant to Australia, the State or Territory concerned, the area in which the land or waters concerned are located, and the Aboriginal or Torres Strait Islanders who live in that area; and
(iii)any public interest in the granting of the mining lease.
(b)a list of documents or evidence intended to be relied upon concerning land access and use, with copies of such documents provided to the Tribunal. Where practicable copies of these documents should also be provided to the other parties. Documents should include:
(i)details of the current land tenure and mining, petroleum and geothermal tenure in the vicinity of the land;
(ii)copies of the current land tenure and mining, petroleum and geothermal tenure title documentation in the vicinity of the land;
(iii)copies of any relevant mining tenement documents, operational or other reports in relation to the mining lease; and
(iv)where possible, a topographical map of the area of a scale 1: 100,000 identifying the location of the proposed mining tenement and the mining tenements in its vicinity marked on it.
(c)any documents or evidence intended to be relied upon concerning any area or site which may be relevant for the purposes of s 39(1)(a)(v), including for example, any information available from the Aboriginal Cultural Heritage Database or Register under the provisions of the Aboriginal Cultural Heritage Act 2003 (Qld).
(d)a statement of the evidence to be given by any witness for the party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
7.On or before 30 January 2015 the Native Title Party is to provide to the Tribunal and each of the other parties:
(a)a statement of contentions addressing:
(i)the effect (if any) of the grant of the proposed mining lease upon the following matters (referred to in section 39(1)(a) of the Native Title Act 1993 (Cth)):
A.the enjoyment by the Native Title Party of their registered native title rights and interests;
B.the way of life, culture and traditions of the Native Title Party;
C.the development of the social, cultural and economic structures of the Native Title Party;
D.the freedom of access by the Native Title Party to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance conducted on the land or waters in accordance with their traditions; and
E.any area or site, on the land or waters concerned, of particular significance to the Native Title Party in accordance with their traditions.
(ii)the interests, proposals, opinions or wishes of the Native Title Party in relation to the management, use or control of the land or waters in relation to which there are registered native title rights and interests of the Native Title Party that will be affected (section 39(1)(b));
(iii)whether the Native Title Party contends that any of the matters referred to in subsections 39(1)(c) to (f) are relevant to the inquiry and, if so, an outline of the Native Title Party’s contentions in relation to each of those matters; and
(iv)whether the Native Title Party contends that the Tribunal should impose a condition for an amount to be paid into trust on account of a future determination of compensation.
(b)a list of all documents or evidence intended to be produced, with copies of such documents provided to the Tribunal. Where practicable copies of these documents should also be provided to the other parties;
(c)a statement of the evidence to be given by any witness for the Native Title Party, verified where possible by affidavit, and the details of where the Native Title Party proposes that the evidence be heard if the matter is not to be heard on the papers; and
(d)where there is an issue relating to the confidentiality of documents or evidence and where evidence will need to be given in restricted circumstances, a statement of the nature of such documents and evidence and the proposed arrangements for the hearing of the evidence.
Section 39 of the NTA is critical in this proceeding. It provides:
(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)any public interest in the doing of the act;
(f)any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)existing non‑native title rights and interests in relation to the land or waters concerned; and
(b)existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b)need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
The materials submitted
On 16 January 2015, the State and Adani submitted their statements of contentions, together with their supporting materials, to the Tribunal. As required by paragraph 6(a)(ii) of the directions, Adani’s statement of contentions addressed the “economic or other significance” of the grant of the mining leases with reference to the criterion in s 39(1)(c) above. On that matter, it stated:
3.51In Queensland Gas Company Limited & Ors / Iman People #2; Mandandanji People / Queensland [2010] NNTTA 210 at [78] the Tribunal applied 3 relevant factors to section 39(1)(c) from [70]-[73] of Cameron / Hoolihan & Ors (Gugu Badhun) / Queensland [2006] NNTTA 3:
(a)how the proposed future act will impact on the economies and persons specified;
(b)the ‘significance’ of granting the right to mine (act) must be viewed in an expansive sense and not purely and necessarily from the quantum of money that will be generated; and
(c) the significance of the proposed act to indigenous persons living within close proximity to the proposed tenement. For example, it may be that a proposed mine will generate jobs and related benefits to indigenous Australians who live nearby whether or not they are members of the claim group.
3.52The Grantee Party submits that the grant of each of ML 70505 and ML 70506 will have highly significant positive economic impacts on the country, the State and the local region. The likely economic benefits can be divided into two distinct categories, being:
(a)the primary, direct economic benefit resulting from the Project’s:
(i)expenditure in the community;
(ii)employment of personnel;
(iii)direct payment of taxes, State royalty and infrastructure charges; and
(iv)use of resources within the community, surrounding region and the State of Queensland; and
(b)the indirect economic benefits that will flow chiefly from increased spending and employment in service industries.
3.53Specifically, the capital investment for the life of the mine is expected to total $21.5 billion. Construction of the mine component of the Project is expected to generate on average over the construction years $78.2 million per annum in direct and indirect benefits on the Mackay region’s Gross Regional Product (GRP), a considerable proportion of which will be direct benefits such as purchase of local materials or services. For the State as a whole, impacts on average over the construction period are estimated to be $203 million per year.
3.54The construction phase also provides considerable benefits to household income and employment. On average, construction will generate an additional 378 full time equivalent jobs per year within the Mackay region and 1,192 full time equivalent jobs for Queensland.
3.55The operational phase of the mine component of the Project will see benefits that increase in line with production rates for coal. At the point of full production (60 Mtpa), total impacts on GRP, for that year, in the Mackay region will reach an estimated total of $3,795 million and at a State level $4,170 million. Benefits to household incomes within the region will reach an estimated total of $372.2 million and State wide $573.5 million. Employment levels locally are forecast to see an increase of 4,093 full time equivalent jobs and State wide 6,789 full time equivalent jobs.
3.56The grant of each of ML 70505 and ML 70506 would also allow works to proceed on the rail aspects of the Project.
3.57In this regard, construction of the rail infrastructure is expected to generate on average over the construction years $145 million per annum in direct and indirect impacts on the Mackay region’s GRP. For the State as a whole, the direct and indirect benefits generated by the construction of the rail infrastructure is estimated to be $229 million per year. The construction phase also presents considerable benefits in terms of household income and employment. On average construction will generate an additional 1,451 full time equivalent jobs within the Mackay region and 2,481 full time equivalent jobs for Queensland. Benefits during the construction period will be most significant during the first and second years of construction.
3.58The operational phase of the rail component of the Project will see impacts that increase in line with production rates of the Mine. At the point of full production (60 Mtpa), total impacts per year on GRP, for that year, in the Mackay region are expected to reach an estimated total of $176.6 million and at a State level $274.1 million. Benefits to household incomes within the region will reach an estimated total of $107.2 million and State wide $157.9 million. Employment levels locally are forecast to see an increase in full time equivalent jobs of 1,215 and State wide 2,025 full time equivalent jobs.
3.59The Project will also include significant port expansion works, activities that will also generate substantial economic and social benefits for the State and the local region.
3.60The matters detailed at paragraphs 3.53 to 3.58 above are set out in the Grantee Party’s EIS, a copy of the Executive Summary of which is attached at Annexure K. The complete EIS may be accessed at grant of each of ML 70505 and ML 70506 will also have positive societal impacts on the local economy resulting from the influx of new people into the regional community as a direct result of the economic activity the Project is expected to generate.
3.62The distribution of the impacts on the local and State economics will be overwhelmingly positive, with further positive impacts felt nationally and internationally. In order to ensure the local and State economies reap the maximum possible benefit from development of the Project, and to mitigate the potential adverse impacts on the region, the Grantee Party will put policies and measures in place to ensure these economies retain as many of the benefits as possible. Such measures will include strategies for increasing local participation in regional and Queensland based industry as well as for encouraging the participation and up-skilling of disadvantaged groups.
(Emphasis in original)
Annexure K (referred to at [29(3.60)] above) was entitled “Environmental Impact Statement, Executive Summary”. It was a 46 page document divided into 12 sections: E.1 to E.12. Section E.5 dealt with Economics, as follows:
An economic assessment of the Project on has been undertaken, measured through a range of economic indicators namely: Gross Regional Product (GRP); household income and employment. The capital investment for the life of the Mine is expected to total $21.5 billion.
Construction of the Project (Mine) is expected to generate on average over the construction years $78.2 million per annum in direct and indirect impacts on the Mackay regions GRP, a considerable proportion of which will be direct benefits such as purchase of local materials or services. For the State as a whole, impacts on average over the construction period are estimated to be $203 million per year. The construction phase also provides considerable benefits to household income and employment. On average, construction will generate an additional 378 full time equivalent (fte) jobs per year within the Mackay region and 1,192 fte jobs for Queensland.
The operational phase of the Project (Mine) sees benefits that increase in line with production rates for coal. At the point of full production (60 Mtpa) total impacts on GRP, for that year, in the Mackay region reach an estimated total of $3,795 million and at a State level $4,170 million. Benefits to household incomes within the region will total $372.2 million and State wide $573.5 million. Employment levels locally will see an increase of 4,093 fte and State wide 6,789 fte.
Construction of the rail infrastructure is expected to generate on average over the construction years $145 million per annum in direct and indirect impacts on the Mackay regions GRP. For the State as a whole, this is estimated to be $229 million per year. The construction phase also presents considerable benefits in terms of household income and employment. On average construction will generate an additional 1,451 fte jobs within the Mackay region and 2,481 fte jobs for Queensland over the construction period. Benefits during the construction period will be felt most vigorously during years one and two.
The operational phase of the Project (Rail) sees impacts that increase in line with production rates of the Mine. At the point of full production (60 Mtpa) total impacts per year on GRP, for that year, in the Mackay region reach an estimated total of $176.6 million and at a State level $274.1 million. Benefits to household incomes within the region will total $107.2 million and State wide $157.9 million. Employment levels locally will see an increase in fte of 1,215 and State wide 2,025.
The distribution of the impacts on the local and State economies are mostly positive, with further positive impacts felt nationally and internationally. In order to ensure the local and State economies reap the maximum possible benefit from development of the Project and to mitigate the potential adverse impacts on the region, policies and measures will be put in place to ensure these economies retain as many of the benefits as possible. Such measures include strategies for increasing local participation in regional and Queensland based industry as well as for encouraging the participation and up-skilling of disadvantaged groups.
I have set this material out in full because it is at the heart of Mr Burragubba’s claim that Adani dishonestly mislead the Tribunal.
As required by the Tribunal’s directions above (at [27(7)]), the Wangan and Jagalingou native title party was required to submit its statements of contentions and supporting materials by 30 January 2015. Instead, on 23 January 2015, its appointed representative, Ms Rosenman, of Chalk & Fitzgerald Lawyers, sent an email to the Tribunal, the State and Adani stating “we have today had instructions that the native title party will not be making any submissions in relation to the grant of the two mining leases in question”.
In early February 2015, the appointed representatives of each of the parties notified the Tribunal member in writing that they preferred the Tribunal’s determination to be made on the papers under s 151 of the NTA (see at [26] above). Subsequently, the Tribunal member decided to proceed in that manner.
Mr Burragubba’s statement
On 5 February 2015, Mr Burragubba sent an email to the Tribunal which attached a statement headed as follows:
Wangan and Jagalingou Families Representative Council
Statement by the Wangan and Jagalingou People about the Carmichael Mine
To the National Native Title Tribunal
CC:Adani Mining P/L (Mining Party); Queensland Government (State Party)
While this statement is quite lengthy, because it is central to three of Mr Burragubba’s four grounds of challenge in this proceeding (see at [6(b)] above), it is appropriate that I should set it out verbatim as follows:
THE Wangan and Jagalingou people are the common law holders of the Carmichael Mine land. We wish to speak about the damage this mine will do to our people and our culture. We will tell you something about our culture and sacred beliefs so that you can understand our frustration with the legal processes and the unwillingness of government and Adani to listen to us and respect us.
We have made our position clear- Wangan and Jagalingou Families Representative Council are resolved to maintain the claim group’s position of no ILUA with Adani; and to publicly oppose Adani’s proposed Carmichael mine because of its devastating impacts on the group’s native title, ancestral lands and environment and cultural heritage.
We state that, as first nations people, we will defend our rights as sovereign owners and custodians, protect our ancestral land inheritance, and maintain our rights and interests in and on our Country. We will take necessary actions to protect our rights and interests.
Adrian Burragubba speaks on behalf of Wangan and Jagalingou Families Representative Council. He has knowledge that was passed on to him through the elders of his father’s people from when he was a small boy. They taught him the law. The land teaches him and the Wangan and Jagalingou people how to belong, when to sing or dance or practice culture. This is what the Wangan and Jagalingou people say about the mine.
This mine will forever damage Wangan and Jagalingou sacred country. The sacred beliefs of our culture, our religion, is based on where the song lines run through our country. These song lines connect us to Mother Earth. Trees, plants, shrubs, medicines we know are on country, waterholes, animals, habitats, aquifers- all have a special religious place in our land and culture and are connected to it. Our spirits and the spirits of our ancestors travel above through and under the ground of our country. They dwell there indefinitely.
Harming the environment, the country, the landscape, the ecosystems, the dependent species, is harming our sacred beliefs and spiritual connections.
The Carmichael Mine site is part of a large number of sacred and archaeological sites that exist in the country of the Wangan and Jagalingou people. The Queensland government knows about this but will not help protect our sacred lands and it does not speak of what it knows. Adani is only interested in the mine and does not respect our culture and religion. Adani’s leader will not show us the respect of talking with our elders and law men.
We will say something about our sacred beliefs and land.
Many sites in Wangan and Jagalingou country are associated with Ancestor Dreaming Totems and other totemic beings that manifest through certain natural species for the Wangan “babbing bura” (Bottletree people) the Possum, Bee and Sand Goanna are said to own fire and the (kidji)tree.
The Jagalingu [sic] “Woccullabura” (Eel people) are said to own the Sandalwood tree for ceremony and the ownership of water are associated with Carpet Snake, Scrub Turkey and Echidna. These are moiety classifications throughout Wangan and Jagalingou. All people, animals and plants are classified into moieties, the classification defining rights to land and resources, and defining kin relations. The term bigun relates to totems. Every bigun relates to land interests and associated decision-making and ceremonial responsibilities derived from relationship to land through either Mother’s Father or Father’s Mother.
We the Wangan and Jagalingou people believe that any damage to the integrity of our moiety dreaming would have catastrophic consequences for all Aboriginal and non-Aboriginal people in the region. Any damage, regardless of the perpetrator, attracts sanctions from other members of the regional Aboriginal societies. The law is you don’t kill your totem whether it is an animal or a tree. Our law protects us and maintains social order. Offences against our law and custom are offences of strict liability. They are serious, but remain unrecognized in Australian law. The forms of customary punishments included death, corporal punishment (including spearing), shaming and banishment. Because such punishments no longer exist does not mean the offences are no longer serious.
Our sacred connection starts at our place of birth. There, the child is given a representative animal, bird or reptile totem, either a social totem, or a dreaming totem they are forbidden to eat such creatures or their eggs as this would infringe our Law as you could die from eating your totem in most cases our people would go hunger for this reason. The Jagalingou (Woccullabura) belonging to the Gummoo Gummoo (Rain) Totem. The rain totem is connected to a tree totem. The tree totem for the Jagalingou (Wakeelbuhra) people is the Waxy Cabbage Palm and the Melaleuca – rain trees. They only come to life and flower in water. The dreaming totem Mundunjudra lives in the water, resides and moves and travels in and through the land. The dreaming totem comes from Gurri (the sun). In the Jagalingou country, spiritual ancestors who come up from under the ground and travel in and through the land at sacred sites associated with the Rainbow Serpent known as the Mundunjudra. The Rainbow Serpent has power to control Wangan &Jagalingou sites where our people are born into their bigan (Totem) this has been so since the beginning of the creation period. We have ceremony near these trees to pay respect to our water Totem the (Eel). When we marry we are betrothed to a different moiety than our own. Even before birth we are promised to someone close to our estate but not within. Death signifies a return to the spirit dreaming so from birth you are connected to that tree. You are also buried with that tree. It is the totemic spirit being that can take you back to your dreaming.
Wangan & Jagalingou ceremonies and rituals are performed at sacred places like the Doongmabulla Springs and along the Carmichael River. They are performed to obtain access to the Ancestral Beings for example Mundunjudra (water spirit) and to spiritual powers that come from our Totemic beings. The ceremonies and rituals give access to animal spirit beings that go through your body at birth and connect you to your Moiety under our law of the Wangan & Jagalingou. Our people are responsible for protecting these birthing sites in accordance with our systems of law.
The djala ceremony or (Yangaru), red Kangaroo was the last in the sacred ritual series of the Wangan & Jagalingou region and its ceremonies in terms of the sequence. By those ceremonies, those born to that skin Banbari/Kargilah and their totem tree and animal totem carry the terms on which the owner clans are defined. An owner clan member is any person who was a member by local descent and is responsible to protect the trees, animals and water under our law and our group. The group has a common spiritual affiliation to a site on the land and the owner clan has primary spiritual responsibility for that site. Group members are entitled by tradition to forage upon the land associated with the local descent group ..
This ancient connection, through to the present, endows us with the knowledge of our traditional ownership and of our distinct identity as Wangan & Jagalingou peoples – the Weirdi speaking people – the Aboriginal peoples of the area covered by the proposed Carmichael mine.
Wangan & Jagalingou have in the past exercised and enjoyed our customary laws and practices in our lands including the area of the Carmichael Mine. We still do so to this day. We want to in the future but this Mine will damage our rights and offend our spiritual beliefs because of the destruction it will cause to the land and the waters on the mine site and around it and also the wider region.
The impacts of the mine and the various leases are not limited to the places on which they sit; especially because of the way water flows through and connects vast interlocking landscapes and our neighboring peoples’ lands. Our neighbouring tribes also have similar stories of their connection through the Water Spirit, referred to regularly as Moonagudda or Mundunjuda. We will not subject our Country and that of others to ‘death by a thousand cuts’. Our law (and lore) embodies a ‘seamless web of cultural landscape’ – this is our Country; and it must be cared for and managed.
This mine will forever interfere with our way of life and culture and traditions. It will have negative impacts on our social, cultural and economic structures. We know this because of the way Adani has treated us. We know this because of what is proposed for the future. It has not listened to us and does not respect our views. We have seen damage already in country under cultural heritage management plans. Adani and the State Government have not offered anything meaningful to protect and secure the future of our country and our sacred connection. The price Adani is asking us to pay includes silence in the future - not being able to object to anything they do.
This runs against our rights as Aboriginal people – rights described in the United Nations Declaration of the Rights of Indigenous Peoples, to which Australia is a signatory.
We assert our right to free, prior, informed consent; to our own economic development; to protection of our country and culture – and object to the way in which our rights are systematically over-ridden in the process by which the State grants mining interests, and the Tribunal is restricted by the law; and in the way Adani negotiates with us. While the legal system may weigh against us – when we say No, we mean No.
We realise we are up against the power and wealth of a massive global corporation and a State government. We realise that the Tribunal is influenced in its decision by the idea that the public interest is in having an expanding mining industry and therefore other interests don’t get a look in. We cannot afford to continue a case where we do not have the resources to put our objection to the Tribunal and the cards are already stacked against us. It is better not to participate at all. Adani has the benefit of a system that does not respect our rights as Aboriginal peoples – the right to our lands and resources; the right to conservation and protection of the environment; the right to practice our law and customs; the right to live in freedom, peace and security.
The association of Wangan & Jagalingou with the Rainbow Serpent (the Water Spirit) promotes the collective right to live in freedom, peace and security as distinct peoples with our own cultural values. The Wangan & Jagalingou people have reluctantly decided that we are unable to continue to participate in the Tribunal proceedings. These proceedings and the legislation under which they are held do not advance our right to live in freedom, peace and security as distinct peoples with our own cultural values.
For these reasons our lawyers were asked to tell the tribunal that we can no longer participate in these proceedings.
As the Tribunal records in its Reasons, this statement was not signed. However, it contained the following notation at the end of it:
Adrian Burragubba, Wangan and Jagalingou Traditional Owner
On behalf of the Wangan and Jagalingou Families Representative CouncilMonday 2 February 2015
On 6 February 2015, the Tribunal member sent an email to each of the representatives of each of the parties to Adani’s applications and to Mr Burragubba noting, in relation to Mr Burragubba’s statement, that:
[T]he compliance date had passed; the native title party’s representative had previously confirmed no material would be submitted; no extension request had been submitted; and all parties had confirmed their preference for the decision to be made on the papers.
Nonetheless, the Tribunal member requested that, by 11 February 2015, each party submit its views on whether Mr Burragubba’s statement should be considered as part of the decision-making process on Adani’s applications.
On 11 February 2015, the Tribunal’s Reasons record that:
The native title party emailed the Tribunal … confirming ‘we are instructed by the applicant for the native title party that the [Tribunal] member should not consider the statement of Mr Burragubba as part of the decision making process in relation to the applications. We advise that the earlier decision by the native title party applicant not to make a submission on the grantee party’s applications for the grant of the two mining leases was unanimous as between each member of the native title party applicant’.
On the same date, the State sent an email to the Tribunal member stating that it was of the view that “the issue of whether [Mr Burragubba’s statement] should be considered is one for the Native Title Party as it has the specific facts relating to how the Statement came into being and its authenticity”. As well, Adani sent an email to the Tribunal member stating that its position was that:
the [Tribunal] must determine whether the document is relevant to the determination having regard to those factual matters and that the Document (Mr Burragubba’s statement) did not contend that the position of the native title party has changed (from Ms Rosenman’s advice on 23 January 2015 that no material would be submitted), or that the relevant future acts not be done … [However] if the document is found to be relevant in making the future act determinations, [Adani] requests the opportunity to respond to it and requests that appropriate weight be given in the context of the factual circumstances explained.
On 12 February 2015, Mr Burragubba sent an email to the Tribunal quibbling with certain of the statements in the Wangan and Jagalingou native title party’s email (see [38] above):
I wish to clarify a number of matters.
As a member of the Applicant, I put forward my view to our legal representative yesterday. The view of the Applicant conveyed to you was not a unanimous position of the members arrived at by consensus, as the rules governing the Applicant provide for in the first instance. As no collective discussion took place between the members of the Applicant to give direction to our legal representative, I thought it important to put my position to you directly.
As I stated in writing to the other members of the Applicant and our legal representative, my view is this:
The statement is a faithful representation of the Family Council’s position, which itself is in accord with the decisions of the Claim Group. It is self-explanatory. It is not an objection under the terms of the order. While it may be a little bit unconventional it is not a breach of anything.
For the record, the following is my position; and I also believe it is in the interests of the Applicant, in relation to the Family Council and the W&J Claimant, to adopt the same. I therefore proposed the response be –
“The W&J applicant doesn’t have a position on the Family Representative Council’s statement submitted by Adrian Burragubba, and takes the view that it is entirely a matter for the Tribunal to consider and respond to the statement”.
Further, the State Party’s response shows a misunderstanding of our decision structure and the importance of the W&J Family Representative Council and its role; and the importance of the Applicant abiding by the guidance of the Family Council. The Council is central to the collective governance of the W&J people in between meetings of the Claim Group; and provides resolutions and advice for the Applicant to consider when making the decisions it is authorised to make. Ignoring the Council is a serious concern for us; and a contrary direction taken by the Applicant needs to be fully explained. This has not occurred so far in relation to this matter.
At a meeting of the W&J Family Representative Council on the 24th October, convened by Qld South Native Title Representative Body, the Council resolved that the applicant should object to Adani’s application for a determination. In this, the W&J Family Representative Council was acting consistently with a resolution dealt with by the Claim Group at the authorisation meeting on 5 October 2014, when the Adani ILUA was rejected. The Applicant was informed of this resolution of the Council.
My agreement not to lodge a formal objection was based on the reasons given in the Statement that I submitted on behalf of the W&J Family Representative Council.
A final point in relation to the State Party’s response: it is obvious that the reference to the Carmichael mine area also applies to the area encompassed by the application for the leases ML 70505 and ML 70506. As attested to in the W&J Family Representative Council Statement, our Country and culture is an indivisible whole. At no time has the W&J Claimant Group, through its own determination, consented to the proposed mine or any of its component parts. The W&J Family Representative Council’s objection is a broader one that goes to the heart of our rights as an Indigenous People, and the issue of obtaining our free, prior and informed consent for matters affecting our traditional territories, upon which we uphold all of our spiritual, cultural, family and social, environmental and economic values, rights and interests.
I sincerely hope that Member McNamara will consider what I have put forward here.
Yours sincerely
Adrian Burragubba
The Tribunal rejects Mr Burragubba’s statement
On 23 February 2015, the Tribunal member sent an email to each of the parties to the Adani application and to Mr Burragubba stating that he did not consider Mr Burragubba’s statement was relevant for decision-making purposes. By way of explanation, the Tribunal member stated that:
The position of the native title party, as communicated by its legal representative, is that the statement is not to be considered. While ‘any matter the Tribunal considers relevant’ is one of the criteria the Tribunal must consider in making a determination, in context it must be relevant to the determination in the sense that it could have some bearing on the decision-making. The native title party’s representative did not submit material, thus did not ask for a determination that the act must not be done and Mr Burragubba refers to the fact that the representative was informed not to participate in proceedings. To that end, the position of the native title party is clear and unambiguous.
Whilst in a narrow sense Mr Burragubba’s statement is capable of relevance (in the sense that it is connected to the subject tenements as they are encompassed by the project he speaks of), whether the statement is in fact relevant is perhaps a matter of weight and authority. I note that:
ŸMr Burragubba’s statement was received after the native title party had indicated no submissions would be made, and after the compliance date was passed; his comment/s about his statement were also received after the closing time for such comments.
ŸMr Burragubba’s statement is headed ‘on behalf of the Wangan and Jagalingou people’ and on the last page ‘on behalf of the Wangan and Jagalingou Families Representative Council’, however, there is no confirmation of support from the other members of the Applicant or the members of the Families Representative Council. The statement was sent to various recipients, not inclusive of the other two registered claimants Ms White and Mr Malone. Noting those circumstances, it raises questions of authority.
ŸMr Burragubba’s updated comment says that his position, which he also believes is in the interests of the Applicant to adopt, is that ‘the W & J applicant doesn’t have a position of [on] the Family Representative Council’s statement submitted by Adrian Burragubba, and takes the view that it is entirely a matter for the Tribunal to consider and respond to the statement’.
Considering the statement and comments from Mr Burragubba, the statement is capable of relevance, but considering the weight to be attached to it, and its failing in terms of authority (i.e. the manner it was submitted and with no proof of support from the other members) I do not consider it to be relevant.
I also note that all parties have indicated their agreement for the matter to proceed on the papers. Having considered s 151(2), I confirm that the matter will proceed on the papers and the tentative listing hearing and hearing are vacated.
Ms Bobongie’s letter
On 2 April 2015, the Tribunal member received another communication from a person who was not a party to Adani’s right to negotiate applications. It was a letter under the letterhead of the Wangan & Jagalingou Family Council from Ms Linda Bobongie, the Chairperson, Organisational Committee, Wangan & Jagalingou Family Group. The letter stated:
Further to your email on behalf of Member McNamara dated 23 February 2015, we wish to correct a statement in relation to the authority of Adrian Burragubba to correspond on behalf of the Wangan and Jagalingou People.
Adrian Burragubba is an Applicant appointed by the Wangan and Jagalingou Family Representative Group. The Wangan and Jagalingou Family Representative Group holds decision-making authority, subject to the decisions authorised by the Wangan and Jagalingou Native Title Claim Group. Details of the decision-making structure are explained below.
At no time have the Wangan and Jagalingou People consented to a mining lease or the surrender of their Native Title to Adani Mining.
The Wangan and Jagalingou People have a decision-making structure that adapts traditional decision-making processes into a process agreed upon by our People.
All decision-making refers back to resolutions of the Native Title Claim Group, being all the Wangan and Jagalingou People, who met together at an authorisation meeting on 29 June 2014. This meeting authorised the structure of the “Wangan and Jagalingou Representative Group” (the Family Group), which is representative of all the families that make up the Wangan and Jagalingou People. Each member of the Family Group is obliged to, according to Terms of Appointment Part A s2 “do all things necessary to implement the resolutions of the Claim Group made at the meeting on 29 June 2014”.
The Wangan and Jagalingou People required the Applicant to abide by decisions of the Family Group. Applicant Terms of Appointment Part A sl6 provides that “The Applicant will not agree to any agreement, contract or undertaking unless supported by a majority of the members at a meeting of the Representative [Family] Group held to consider any agreement, contract or undertaking.”
The Wangan and Jagalingou Claim Group rejected the proposed Indigenous Land Use Agreement with Adani Mining in 4th October 2014, by a decision of an authorised Claim Group meeting. Under the decision-making structure, this decision to reject was made by the most authoritative group of the Wangan and Jagalingou People.
Following that decision by the Claim Group, the Family Group met on 22nd November 2014: this meeting was convened by the Native Title Representative Body – Queensland South Native Title Services. The Family Group is obliged to follow the decisions of the Claim Group. At this meeting the Family Group passed a resolution for the Applicants to object to Adani’s application to the Tribunal and it is authorised to make its own decisions.
The majority also authorised Adrian Burragubba to explore the possibility of challenging the mining lease and the compulsory acquisition on its behalf.
Every effort was made to compile relevant information to submit to NNTT under that authority, but the task was insurmountable and was hampered by many different obstacles.
The submission was abandoned, but the objection to the mining lease still stands.
Adrian Burragubba has advised that the Wangan and Jagalingou People were unable to mount a properly detailed case of objection in the Tribunal proceedings and contribute to them in a meaningful way.
The statement sent to the Tribunal on 5th Feb 2015 records our continuing opposition to the Adani mining lease in the only way that was reasonably available to us, and is supported and endorsed by the majority of the Wangan and Jagalingou Family Group.
We are concerned that the Tribunal has acted on what other parties have said about our decision-making process. It is not for other parties to say who should speak on behalf of W&J. Article 18 of the UN Declaration of the Rights of Indigenous Peoples says –
Article 18 – Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
We trust this clarifies the matter. We are happy to provide copies of the documents that record the structure if it is of any assistance.
(Emphasis in original)
As is already noted above, the Tribunal made its determination on 8 April 2015. In the Reasons, the Tribunal member expressed his views about the contents of Ms Bobongie’s letter in the following terms:
I can’t be completely certain that the Wangan and Jagalingou Family Group, Family Council, Family Representative Group, and Family Representative Council are indeed all the same body although the representations made are similar. In any case I don’t believe that this most recent correspondence adds anything to my understanding of the group’s opposition to the grant of the mining leases and to their rejection of the indigenous land use agreement. I accept that if there was agreement to the grant of the mining leases (subject perhaps to an indigenous land use agreement or an ancillary agreement) then the matter would not be before the Tribunal. I accept that the native title party has not made submissions in support of the grant of the mining leases, nor have they consented to the grant of the mining leases.
The Tribunal’s determination
The final paragraph of the Tribunal’s Reasons summarised its determination thus ([2015] NNTTA 16 at [121]): “The determination of the Tribunal is that the acts, being the grant of mining leases 70505 and 70506 to Adani Mining Pty Ltd, may be done.”
The EIS process
While the Tribunal’s determination is the central focus of this proceeding, there was another statutory process and a court proceeding that together played important roles in the factual context to this matter. The first was the statutory process contained in the State Development and Public Works Organisation Act 1971 (Qld) (as then in force) (the State Development Act). That process commenced on 22 October 2010 when Adani submitted an Initial Advice Statement to the Queensland Coordinator-General seeking to have the Carmichael Coal Mine and Rail Project declared a significant project under s 26(1)(a) of the State Development Act.
In response to that statement, on 26 November 2010, the Coordinator-General caused a notice to be published in the Queensland Government Gazette making a declaration that the Carmichael project was a significant project under that legislation.
Once a project has been declared to be a significant project, Part 4 of the State Development Act requires, among other things, that the proponent must prepare an Environmental Impact Statement (EIS) for the project. An EIS is required under that Act to address the subject matters set out in a Terms of Reference document issued by the Coordinator-General. On 25 May 2011, the Coordinator-General issued the Terms of Reference for the Carmichael project EIS. Prior to the issue of that document, a draft set of Terms of Reference had been released for public comment.
The Terms of Reference document comprised 94 pages. The Carmichael project was summarised in the introductory pages of it in the following terms:
The Carmichael Coal Mine and Rail project comprises of two major components:
(1)a greenfield coal mine (over exploration permit for coal 1690), being both open-cut and underground mining, and associated mine processing facilities.
(2)a railway line from the mine to Moranbah, joining the existing Goonyella rail system, connecting on to export facilities at Hay Point.
The proposed mine is expected to produce 60 million tonnes per annum of product coal at peak production. The project has a potential mine life of 150 years, including construction, operation and closure. Export coal from this project will predominantly service the Indian market.
...
It is anticipated the mine construction will require an investment of approximately $4.1 billion. Railway development will require a total investment of approximately $6.8 billion for rail connectivity to the Port of Hay Point.
…
The Terms of Reference also noted that, in January 2011, the relevant Commonwealth Minister had determined under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) that the project was a “controlled action” under that legislation. It went on to note that:
The Commonwealth Government has accredited the EIS process, to be conducted under the [State Development Act], under a bilateral agreement between the Commonwealth and Queensland governments. This will enable the EIS to meet the impact assessment requirements under both Commonwealth and Queensland legislation.
There were numerous and varied subject matters that Adani was required to address in the EIS for the Carmichael project. They included: a detailed description of the project (including its location, construction, operation, decommissioning and rehabilitation); the environmental values and the potential impacts thereto (including climate, natural hazards and climate change, land, nature conservation, water resources, air quality, greenhouse gas emissions, noise and vibration, waste, transport, Indigenous cultural heritage and non-Indigenous cultural heritage); the social values and the potential impacts thereto; the economies and the management of impacts thereto; the hazard and risks involved; the cumulative impacts involved; an environmental management plan and various matters of national environmental significance.
In the section dealing with the economics of the project, the Terms of Reference required Adani to address the following matters (relevantly):
5.1 Economy
5.1.1 Description of affected local and regional economies
Describe the existing economy in which the project is located and the economies materially impacted by the project. It should include:
Ÿa map illustrating the local and regional economies (local government areas) that could be potentially affected by the project
Ÿgross regional product or other appropriate measure of annual economic production
…
Ÿlabour force statistics
…
5.1.2 Potential impacts and mitigation measures
The potential impacts should consider local, regional, state and national perspectives as appropriate to the scale of the project.
Describe both the potential and direct economic impacts including estimated costs, if material, on industry and the community by assessing the following:
Ÿproperty values
Ÿindustry output
Ÿemployment
Ÿpotential land severance issues as a result of proposed rail infrastructure and proposed mitigation measures (including rail crossings)
Ÿthe indirect impacts likely to flow to other industries and economies from the development of the project (and the implications of the project for future development). Include the volume of extractive materials to be used (particularly limited local resources) and any measures proposed to mitigate identified impacts
…
The EIS was prepared for Adani by GHD Pty Ltd. In an affidavit filed in this proceeding, Mr Chubb, the Queensland Market Leader for Environment of GHD, described how the economic assessment was undertaken for the purposes of preparing that section of the EIS as follows:
17.As part of assessing the anticipated impacts of the Project, GHD undertook an analysis of its potential economic impacts, based on the project information provided by Adani and publicly available information at the time.
18.That analysis was performed by a team within GHD which specialised in economic assessments for environmental impact statements. The team was led by Rob Coulton, and technically reviewed by Richard Rawnsley. Mr Coulton and Mr Rawnsley are no longer employed by GHD.
19.The economic assessment performed by Mr Coulton (and reviewed by Mr Rawnsley) was also subsequently reviewed for compliance with the Terms of Reference by GHD’s Project leadership team responsible for preparing the EIS.
The EIS economic assessment was based on an input/output (I/O) method. That method was described in section 1.4 of the EIS, as follows:
1.4 Methodology
1.4.1 Model Extent
The economic assessment is largely based on the input-output (I/0) method of impact determination. Table 1-2 identifies the relevant local government authorities (LGA) and statistical local areas (SLA) utilised for the modelling.
…
1.4.2 Data Sources
Data used for the baseline economic overview has predominantly been gathered from publicly available sources and includes:
ŸQueensland Government’s Office of Economic and Statistical Research (OESR)
ŸAustralian Bureau of Statistics (ABS)
ŸThe Local Government Authority for Isaac
ŸRegional Economic Development Corporation (Mackay, Whitsunday and Isaac)
1.4.3 Input Output Analysis
The input output analysis (I/O) analysis is able to provide two types of information:
ŸA numerical picture of the size and shape of the economy: this describes the important features of the economy, the interrelationships between different sectors within the affected economy and their relative importance.
ŸAn estimation of the relative contribution of a specific sector to the affected economy: this provides the multiplier numeric relative to the scale of the Project, which is utilised to develop the approximation of the potential economic impacts scaled from the initial estimation.
The economic assessment for the development of the Project has a range of economic impacts for both the local region (Mackay) and the wider State economy (Queensland). The assessment required the use of data from a number of data sources such as:
ŸAustralian Bureau of Statistics (ABS)
Ÿ2006 Census of Population and Housing
Ÿ2006 Agricultural Census and AgStats data for 2008/0
Ÿ2003/04 Household Expenditure Survey
Ÿ2009/10 Australian National Accounts, State Accounts
ŸRegional Population Growth, Australia and New Zealand
ŸDepartment of Employment and Workplace
ŸAustralian Taxation Office
The model for this specific economic assessment was then extended beyond the basic I/O model, to a demographic-economic model. This enabled the additional analysis of how local population levels will respond to employment growth or decline. The addition of an unemployment sector allows a preliminary estimate to be generated for the consumption induced impact from the growth or decline in unemployment.
The economic impact assessment estimates the expected impact on the affected economies. The employment numbers provided in Section 3 outline the additional employment within those economies as a result of the Project. These numbers have been determined using an assumption that a certain per cent of labour will be sourced from the local or State economy. In addition, as outlined in the report, these impacts will only occur if every effort is made to procure labour from within these economies - which will largely depend on the mitigation strategies, outlined in Section 3.4.3.
This specific model for the Project also provides a profile of sales of goods and services to visitors to the region, i.e. expenditure by tourists. Such data was sourced from Tourism Research Australia (2010) and the ABS. Once amalgamated, the model produced impacts for 66 different sectors within the affected economies. Using such an approach to estimate the expected impacts also requires a number of assumptions such as:
ŸPrice changes between the model construction year and the base year of analysis, i.e. the model base year was 2008/09, due to available data, however the base year for the analysis in this assessment was 2013. Growth rates of one per cent per annum were incorporated into the modelling to allow for increases in productivity in all sectors. Table 1-3 identifies the household incomes, GRP and employment for the model base year of 2008/09.
ŸIn the creation of new jobs by the Project it is assumed that a certain proportion of jobs, unless otherwise stated, will be filled by individuals from the local or regional areas. This assessment has used the assumption that 60 per cent of employees will be sourced from the local and regional economies and 90 per cent will be sourced from the State of Queensland as a whole.
ŸIndustries incorporated into the model have a linear production function, which assumes that industries have fixed input proportions.
ŸFirms within industry sectors are homogeneous. They produce a fixed set of products that are not produced by any other firms and their input structures are all the same.
ŸThe model does not account for permanent changes that may occur in the management of natural resources for example due to legislative requirements.
The EIS document itself comprised thousands of pages.
The critical part of the EIS, for present purposes, namely the economic section of the Executive Summary, is set out above (at [30]). The assumptions upon which that economic section were based were set out in section 3.2 of the EIS, as follows:
3.2 Project (Mine)
3.2.1 Overview
The Project (Mine) will at full production produce 60 Mtpa (product) and have an operating life of approximately 90 years. The scale of the Project (Mine) and technical aspects i.e. the different methods of mining used on the same site, poses a number of complications due to the uncertain nature of required investments further into the life of the Project. Therefore, high-level estimates have been generated based on a number of assumptions specific to the modelling technique, outlined in Section 1.1, and to the Project itself.
The analysis has been conducted for the two main stages of the mine; construction, the majority of which is expected to occur prior to 2015, and operation for the first 10 years, post-2015, which takes the mine through ramp up to full production.
3.2.2 Construction
3.2.2.1 Capital Investment
Capital investment for the life of the Mine is expected to total $21.5 billion (Runge Limited 2011). It is estimated that $5.818 billion will be spent in the years preceding 2022, with the remaining $15.6 billion being spent over the remaining years of operation. Figure 3-1 shows capital investment for the life of the Project (Mine).
Direct expenditure for the construction phase of the Project (Mine) between years 1 and 3 (nominally 2013-2015) and to full production in year 10 (nominally 2022) is estimated from this data. The location in which the expenditure would take place is also estimated. Table 3-1 outlines the values and expected location of expenditure.
3.2.2.2 Gross Regional Product (GRP)
The analysis provides an estimate of the direct and indirect impacts of the development on the affected economies GRP. Table 3-2 provides a synopsis of the results. The analysis suggests the net contribution of the Project (Mine) to the affected economies is positive. In the first year of construction of the Project (Mine), the region’s GRP would be boosted by 1.2 per cent - that is, $82 million (based on 2008-09 GRP). This figure would drop to $73 million in 2014 before rising to $80.5 million in year three of construction.
At the State level Table 3-2 outlines the Project’s contribution to gross state product (GSP), which is expected to be $212 million in year one and $189 million and $209 million in subsequent years. In the context of the Queensland economy, which had a GSP of $243.9 billion in 2008-09, year one, the peak year of the development, would provide an increase in GSP of 0.1 per cent.
3.2.2.3 Household Income
The impacts of the development on household income follow similar patterns to those for GRP and GSP. Year one of the construction sees the most considerable contribution to household income. Considering both direct and indirect impacts, the Mackay region is expected to experience an increase of $32.6 million in year one, plus subsequent annual increases of $29.1 million and $32.3 million in the following years.
As can be seen in Table 3-3, impacts are similar at the State level; the highest levels of impacts are seen in year one, dropping by $9.4 million in year two and increasing by $8.4 million in year three.
3.2.2.4 Employment
Employment, which shows the welfare of households within the affected economies, is the final indicator used to identify potential impacts of the Project (Mine) on the region.
An initial workforce of 400 persons is anticipated to be onsite in January 2013 for the pre-construction phase and then construction phase of the Project (Mine). Numbers are expected to increase to up to 3,000 people over the next ten years where full production is reached. Figure 3-2 shows the workforce numbers for the construction period. As there is an overlap between construction and initial operation of the Mine, total workforce Figure 3-2 shows workforce for the period of 2013 through to full production at 2022.
Table 3-4 identifies the estimates the impact that the Project (Mine) will have on employment within the region and within the State. Year one sees the greatest benefits both in the Mackay Region and for the State as a whole. In 2008-09 total employment within the Mackay region was 52,322. Using these figures, the Project (Mine) will boost local employment by 0.8 per cent and State employment by 0.05 per cent.
3.2.3 Operation
3.2.3.1 Operational Cost
The operation of the Mine is expected to commence with an initial output of 2 Mtpa. Over the subsequent years, output is expected to ramp up to reach full production target of 60 Mtpa product in the tenth year after construction commences (nominally 2022). The operational scale of the Project is significant, with coal extracted via underground and open cut mining techniques. Therefore, the Mine will continue to see considerable investment in capital, as can be seen in Figure 3-3, as the Mine is expanded and as machinery reaches the end of its life and needs to be replaced.
The estimated production cost, over the life of the Mine (for the purpose of this assessment) is expected to be around $33 per tonne. Table 3-5 provides an expected operational expenditure taking into account both the production cost and the on-going capital expenditure. Table 3-5 was derived from the assumptions that 11 per cent of operational expenditures would occur within the Mackay region, 13 per cent would occur within Queensland and the rest, 76 per cent will occur outside Queensland.
Economic impacts, both direct and indirect have been determined until 2025, the first 10 years of the Mine life. This forecast period has been selected as it has the appropriate level of certainty. It has been assumed that once the Mine has reached full production (60 Mtpa), and stabilised at that output, the impacts would remain the same with perhaps some variation as new deposits are found and pits constructed.
3.2.3.2 Gross Regional Product
Impacts on GRP are expected to continue rising through the life of the Project. Impacts in year three of the mine life are estimated at $106 million (Table 3-6). This is projected to rise to $3,769 million by 2025, representing 35 per cent of GRP.
At the State level, as seen Table 3-7, impacts are estimated to be $231.3 million in 2015 and have grown to $4,170 million by 2025.
3.2.3.3 Household Income
Household income is predicted to increase by 10.1 per cent solely due to the development of the Project (Mine) from 2008-09 value, to 2025, year 13 of the Mine life when it is operating at maximum production. At the State level, the long-term increase is expected to be almost $574 million, representing 0.45 per cent of the State total in 2008-09 ($128.6 billion).
3.2.3.4 Employment
The Project (Mine) total operational workforce, including underground and open cut operations, is expected to average 2,366 persons (peak just under 3000) for the period from full production in 2022 to completion of all on site works in 2102. The number will remain above 2,000 when underground mining ceases production by 2067, but will gradually reduce as the production winds done and the mine ceases production in 2102.
The Mackay region is expected to see an increase of 7.8 per cent, of 2008-09 levels, in employment due to direct and indirect impacts of the Mine development. Similar trends are expected State wide where employment levels will increase from 1,502 fte to 6,789 fte in 2025. Therefore, by 2025, employment levels State wide will have been boosted 0.3 per cent by the Project (Mine).
(Emphasis added)
If the Registrar decides to register the claimant application as a claim, the information he or she is required to enter in the Register of Native Title Claims includes the following (s 186(1)):
Information to be included
(1)The Register must contain the following information for each claim covered by subsection 190(1):
(a)whether the application was filed in the Federal Court or lodged with a recognised State/Territory body;
(b)if the application was lodged with a recognised State/Territory body—the name of that body;
(c)the date on which the application was filed or lodged;
(ca)the date on which the claim is entered on the Register;
(d)the name and address for service of the applicant;
(e)the area of land or waters covered by the claim;
(f)a description of the persons who it is claimed hold the native title;
(g)a description of the native title rights and interests in the claim that:
(i)the Registrar or the NNTT in applying subsection 190B(6); or
(ii)a recognised State/Territory body in applying provisions equivalent to that subsection;
considered, prima facie, could be established.
Note:The person mentioned in paragraph (1)(d) is the registered native title claimant. This is the person to whom notices, for example under paragraph 29(2)(b), are to be given.
As indicated by the note above, the entry mentioned in s 186(1)(d) describes the registered native title claimant (see at [14] above). Further, the entry mentioned in s 186(1)(g) describes the registered native title rights and interests (see at [9] above), which brings one back to the entry described in s 30(3)(b) (see at [268]).
The text of s 39
Having identified those three aspects of the broader statutory context to s 39, it is finally convenient to turn to the text of s 39 itself, and particularly the subsection which is at the centre of Mr Burragubba’s case on this ground: s 39(1)(b). Section 39 is set out in full above (at [28]). First, it is worth noting how it is structured. Putting aside the catch-all discretionary provision in s 39(1)(f) (which allows the arbitral body to take account of any other matter it considers relevant), the section addresses the interests of two groups of people and the relationships between them and the particular future act in question from two different perspectives. In the first place, ss 39(1)(a) and (1)(b) are directed to the interests of the native title parties and the effect that the future act has on their interests, specifically, but not only, their registered native title rights and interests. By comparison, ss 39(1)(c) and (1)(e) are directed to the broader public interest, including those of any Aboriginal peoples and Torres Strait Islanders who live in the area concerned, and to the significance of the act itself. There is no s 39(1)(d).
Next, it is important to highlight the three expressions that underpin the operation of s 39. The first two of them have already been outlined in some detail above. They are “the act” – the proposed “future act” which affects native title – and the “registered native title rights and interests” as defined in s 30(3)(b). The third, and most critical, expression is: “native title party”. That expression is defined in s 253 to mean:
native title party has the meaning given by paragraphs 29(2)(a) and (b) and section 30.
(Emphasis in original)
It is to be noted that this definition is expressed in the singular.
I interpose that this definition is to be contrasted with the definition that appears immediately above it in s 253 as follows:
native title claim group means:
(a)in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1); or
(b)in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made.
(Emphasis in original)
I will return to these contrasting expressions and definitions shortly.
Conclusion on the construction of s 39(1)(b)
Having regard to all these aspects of the text, context and purpose of s 39(1)(b) and, in particular, to the connections between the definition of native title party above, the reference to the expression “registered native title claimant” in s 29(2)(b)(i), the definition of that expression in s 253 of the NTA, the registration process that leads to a claim being registered on the Register of Native Title Claims, the particular entries in that Register that correlate to the defined expressions “registered native title claimant” (s 186(1)(d)) and “registered native title rights and interests” (s 186(1)(g)), and the contents of those two entries with respect to the Wangan and Jagalingou application (see at [14] and [9] above, respectively), I consider the words “interests, proposals, opinions or wishes of the native title parties” in s 39(1)(b) mean and refer, in this matter, to the interests, proposals, opinions or wishes of the three persons whose names appear as the applicant in the entry on the Register of Native Title Claims relating to the Wangan and Jagalingou application, namely Adrian Burragubba, Patrick Malone and Irene White. Further, I consider the purpose and scheme of the right to negotiate provisions of the NTA requires that, where more than one person comprises the native title party/registered native title claimant, those persons must act collectively in discharging their role. My reasons for reaching these conclusions are as follows.
The first and most compelling has already been alluded to above. If s 39(1)(b) were intended to require the Tribunal to take into account the interests, proposals, opinions or wishes of the native title claim group, the contrasting and defined expression “native title claim group” would have been used instead of the defined expression “native title party” in the text of that section. It is clear, therefore, from the text of s 39(1)(b) that it is the interests, proposals, opinions or wishes of the native title party which the Tribunal is required to take into account.
Furthermore, the text of s 39(1)(b) also states with clarity what particular interests, proposals, opinions or wishes have to be taken into account. That is those related to the “management, use or control” of a closely defined area of land or waters: the area of land or waters in relation to which there are registered native title rights and interests that will be affected by the future act described in the s 29 notice. This confined and quite specific focus of s 39(1)(b) is exemplified, in this matter, by the fact that the two mining leases described in the s 29 notice cover approximately 185 square kilometres, whereas the claim area of the Wangan and Jagalingou application is 30,277.6 square kilometres.
That the text of s 39(1)(b) requires the Tribunal to take account of the interests, proposals, opinions or wishes of the native title party with respect to this very specific topic is consistent with the context of that section. The criteria in s 39(1) only come into effect following the failure of good faith negotiations conducted under s 31. At this post-negotiation stage, the issue for determination is whether the act specified in the s 29 notice should proceed notwithstanding the lack of agreement from the native title party. While that issue must be determined by reference to the criteria in s 39(1), it is significant for present purposes that s 39(4) provides that those criteria may be displaced by an agreement reached between the negotiation parties on any issues relevant to the arbitral body’s determination under s 38. It necessarily follows that, as a negotiation party, the native title party will have a unique insight to those issues. Furthermore, since the combined effect of ss 30(3) and 31(2) is that the registered native title rights and interests of the native title party as defined in the former section are central to the good faith negotiations that must be conducted under the latter section, the native title party is also likely to have a unique perspective about the management, use or control of the defined area of land and waters mentioned above.
Conversely, these textual and contextual factors explain why s 39(1)(b) is not concerned with the views of the native title claim group as a whole, nor about the effect of the particular future act on all the land or waters covered by the native title claim group’s claim, nor its effect on the native title rights and interests of the native title claim group more broadly. This distinction is important for present purposes because, broadly stated, these topics aptly summarise the matters addressed in the statements Mr Burragubba submitted to the Tribunal. Those statements are, of course, central to this ground because Mr Burragubba claims the Tribunal erred in failing to take them into account. However, this should not be taken as suggesting that the views of the native title party about certain of those matters does not arise for consideration under some of the other subsections of s 39(1). I will return to this issue when considering ground 3 below.
For these reasons, I do not consider Mr Burragubba’s construction of the words “interests, proposals, opinions or wishes of the native title parties” in s 39(1)(b) can be accepted.
I turn next to the reasons for my conclusion that, if the native title party is comprised of a number of persons, they are required to act together collectively in discharging their role. Essentially, I consider that conclusion is dictated by the need for the right to negotiate provisions of the NTA to operate effectively and expeditiously in the interests of the native title claim group which the native title party/registered native title claim group represents. In other words, it is a construction which serves to advance the protective purpose of the right to negotiate provisions of the NTA. This accords with the requirements of s 15AB of the Acts Interpretation Act 1901 (Cth). However, as well as advancing this purpose, it is also supported by a number of textual and contextual considerations in the NTA as follows.
First, as noted above (at [279]), the definition of native title party in s 253 is expressed in the singular. This suggests that, where it comprises more than one person, it is still intended to operate as a single entity, or a collection of single entities where there is more than one native title party/registered native title claimant. The latter may occur where there are overlapping claims to the area to which the s 29 notice relates, or where the future act described in the s 29 notice relates to a large area of land and there are multiple claims covering that area. This explains why the word “any” appears before the expression “registered native title claimant” in s 29(2)(b)(i). That word does not, as Mr Burragubba seems to suggest, mean or refer to the individuals comprising the registered native title claimant. For the same reason, I do not consider the word “any” in s 30(1)(a) refers to the individual persons comprising the registered native title claimant. While the use of the word “person” after the word “any” in that section does provide stronger support for Mr Burragubba’s construction, I consider the construction above is preferable because it facilitates the purpose of the right to negotiate provisions of the NTA. Furthermore, I do not consider the addition of the words “any person” in s 30(1)(a) could alter the meaning of the expression “registered native title claimant” as it is defined in s 253.
Secondly, both s 61(3) and the entry prescribed by s 186(1)(d) refer to an “address for service” singular. This also suggests that, where the notice under s 29 has to be given to any registered native title claimant (s 29(2)(b)(i)), all the persons comprising that entity are to be served at that one address, not individually at their separate individual addresses.
Thirdly, and returning to the protective purpose mentioned above, this construction is consistent with my observations above (at [257]) stemming from Bygrave about the native title party/registered native title claimant being used as a statutory mechanism or device to provide an individual, or a defined group of persons, to conduct the negotiations required with respect to a s 29 notice on behalf of the native title claim group, to enter into a binding agreement on behalf of that group if those negotiations are successful, or to represent its interests in any right to negotiate application that ensues if they are unsuccessful. The nature of this role requires the members of a native title party to form and maintain a united position and the relatively strict time limits requires them to act with expedition. The members of the native title party/registered native title claimant are therefore required to take an approach which involves “a communal enterprise or system, working towards the common good, as opposed to one admitting competition between individuals” (Macquarie Dictionary, 4th ed), namely a collective approach. This approach is also consistent with the communal nature of native title, the protection of which is the primary purpose of the NTA (see at [245]–[246] above).
Conversely, if each of the individuals comprising a native title party were able to act individually in discharging this role, I consider Adani and the State are correct in their contentions that the right to negotiate provisions of the NTA would become unworkable. Among many other impractical consequences, that approach would introduce the possibility of different individuals within the native title party taking different negotiating positions, thus creating disunity in the negotiations and thereby jeopardising the prospects of any agreement. Further, if a right to negotiate application were to eventuate, it could result in the individuals within the native title party holding differing views about whether an objection should be made to an expedited procedure under ss 32(1) to 32(3), or whether an attempt should be made to satisfy the arbitral body that the negotiations were not conducted in good faith under s 36(2). It could also result in differing positions being advanced to the arbitral body as to what the views of the native title party were (s 142), multiple parties representing those views at any hearing before the arbitral body (s 143) and each member of the native title party who is dissatisfied with the final determination having a right of appeal (s 164(2)). Finally, if such differing views were to be advanced, it would place the arbitral body in the impossible position where it would have to determine which individual’s views should prevail.
It is worth adding that it was these kinds of practical difficulties that persuaded the Tribunal to adopt the practice, more than 15 years ago, of requiring a native title party in any future act determination proceeding before it to act collectively: see Placer (Granny Smith) Pty Ltd v Western Australia (2000) 170 FLR 469 at [10]; and Monkey Mia Dolphin Resort v Western Australia (2001) 164 FLR 361; [2011] NNTTA 50 at [20]. The Tribunal member specifically adverted to this practice in his reasons in this matter when he said:
In Monkey Mia v Albert Darby Winder, the Tribunal considered various authorities regarding the nature of a claim group and said ‘the principles affirmed in these cases support its [the Tribunal’s] decision that a ‘native title party’ is the registered native title claimants acting on behalf of the claim group collectively and not each individual registered native title claimant’ at [20]. The Tribunal referred to the finding in Placer (Granny Smith) v Wongatha People that a native title party is the registered native title claimants acting collectively and that each individual registered native title claimant is not entitled to separate representation in a right to negotiate inquiry. In this collective context, the agreed decision-making process for the claim group is important and legal representation will be taken into account. As the Tribunal explained in Monkey Mia v Albert Darby Winder (at [19]), the ‘Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate. Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has properly been given, based on the established decision making processes of the native title claim group’. It is the native title party, as per the features explained, that is entitled to procedural rights under the right to negotiate provisions.
Finally, as Adani pointed out in its submissions, and as I have already touched on above (at [259]), in Bygrave I held that the registered native title claimant’s role and authority under the ILUA provisions of the NTA was different from an applicant’s role and authority in pursuing a native title determination application. That was so because, in the former role, the registered native title claimant is not authorised under s 251A of the NTA to do anything (see Bygrave at [112]–[113]) whereas, in the latter role, it is. Of more relevance to this case, under s 251B and s 62A, an applicant is given the authority to “deal with all matters arising under [the NTA] in relation to the application”. Since the expressions “applicant” and “registered native title claimant” are distinctly defined in s 253 of the NTA (see Bygrave at [83]) and since the latter definition draws a clear distinction between the persons who comprise the applicant and the applicant per se (see Bygrave at [115]–[116]), I agree with Mr Burragubba’s contention that s 62A is not intended to apply to the persons comprising a registered native title claimant when that entity is discharging its role under either set of provisions. I should interpose that in here referring to the registered native title claimant as an “entity”, I do not intend to imply that it is a legal person (see Bygrave at [75] and [85]).
Nonetheless, the absence of any express provision which defines the role and authority of a registered native title claimant when discharging its role under the right to negotiate provisions does not mean that the jurisprudence (outlined immediately below) in relation to the manner in which the members of an applicant are to discharge their role does not provide some general guidance on that issue. There is, as I have already observed above (at [259]), a much closer alignment between the role of the applicant and the role of the registered native title claimant under the right to negotiate provisions of the NTA.
First, in Ankamuthi People v Queensland (2002) 121 FCR 68; [2002] FCA 897 at [8], Drummond J emphasised that an applicant was authorised to discharge its role without interference by, or intervention from, any other members of the native title claim group. Secondly, in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 (at [8]), Stone J made the following important points when her Honour said that the members of an applicant are:
… representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation [for each of them individually] is inappropriate and unacceptable.
Finally, in a series of cases beginning with the decision of Kiefel J in Butchulla People v Queensland (2006) 154 FCR 233; [2006] FCA 1063 at [38], it was held that, where there is more than one person comprising the applicant, each of those persons is authorised by the native title claim group personally, but in discharging their role, they are to do so “in concert” together or jointly. With the exception of Weribone v Queensland (2011) 197 FCR 397; [2011] FCA 1169 at [20] and [22] per Logan J, which was delivered at about the same time (5 days earlier), all of these decisions were reviewed by Collier J in Anderson on behalf of the Wulli Wulli People v Queensland (2011) 197 FCR 404; [2011] FCA 1158 at [20]–[62]. It should be noted that the emphasis on the word “jointly” in these decisions arises from the provisions of s 61(2)(c) to the effect that the person or persons comprising the applicant are “jointly the applicant” (see at [271]–[272] above). In the context of the right to negotiate provisions, however, I consider the word “collectively” more aptly expresses the manner in which the members of the registered native title claimant are to discharge their role.
Conclusion
For these reasons, I consider Mr Burragubba’s construction of the words “interests, proposals, opinions or wishes of the native title parties” in s 39(1)(b) must be rejected. Instead, I consider the proper construction of those words is that set out at [282] above. It necessarily follows that the Tribunal made no error in its determination when it adopted essentially the same construction. It also necessarily follows that the statements of Mr Burragubba and Ms Bobongie provided to the Tribunal did not fall within the criterion in s 39(1)(b) such that the Tribunal was bound to take their contents into account in making its determination. For all these reasons, I therefore consider that Mr Burragubba has failed on ground 4.
GROUND 3
Introduction
Ground 3 is set out above (at [129]). Mr Burragubba provided the following particulars for that ground:
(a)The communications were material relevant to the criteria in ss.39(1)(a)(i)-(iii) and 39(1)(b)-(e) of the NTA.
(b)[The Tribunal] declined to consider the communications at [61] of the Reasons.
(c)[The Tribunal] concluded there was no material before [it] relevant to s.39(1)(a)(i)-(iii) of the NTA at [70], [77], [80], and [83] of the Reasons.
(ca)[The Tribunal] concluded there was no material before [it] relevant to s.39(1)(b)-(e) of the NTA at [96], [100], [108], [112], [114], and [115] of the Reasons.
Contentions
On this ground, Mr Burragubba claimed that the statements that he and Ms Bobongie submitted to the Tribunal were materials that were relevant to the criteria in s 39(1), particularly s 39(1)(a)(ii) and s 39(1)(b). As such, he claimed they were relevant considerations the Tribunal was bound to take into account in making its determination under s 38. Because they were of that kind, he submitted that the Tribunal was required to undertake a proper, genuine and realistic consideration of them. Accordingly, he submitted that the Tribunal erred when it stated, on a number of occasions in its reasons, that there were no relevant materials before it from the native title party.
Adani and the State both submitted that the materials submitted by Mr Burragubba and Ms Bobongie were not relevant considerations because they were not materials provided by the native title party. They therefore submitted that the Tribunal made no error in not considering them.
Consideration
In Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160 at [123], the Full Court observed that a relevant consideration in this context is a matter which a decision-maker is bound to take into account, it said:
The concept of a relevant consideration in administrative law denotes a matter of which a decision-maker is bound to take account. This is a legal issue to be determined from the terms of the law under which the decision is made. This will include those matters which the law explicitly says must be taken into account but also other matters when this is discernible from the subject matter, scope and purpose of the law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.
For the reasons given with respect to ground 4 above, the relevant considerations under s 39(1)(b) were therefore the interests, proposals, opinions or wishes of the native title party. Conversely, the interests, proposals, opinions or wishes of the broader native title claim group were not relevant considerations.
It is agreed in this matter that the native title party’s legal representative informed the Tribunal that it had reached a unanimous decision not to make any submissions with respect to Adani’s right to negotiate applications (see at [31] above). Moreover, the legal representative for the native title party informed the Tribunal that its view was that Mr Burragubba’s statement should not be considered by the Tribunal (see at [38] above). In these circumstances, it is self-evident that the statements from Mr Burragubba and Ms Bobongie were not relevant considerations for the purposes of s 39(1)(b). They did not express the interests, proposals, opinions or wishes of the native title party. Indeed, as Adani points out, they were submitted on behalf of the Wangan and Jagalingou Representative Council or the Wangan and Jagalingou Representative Group. Whether those two bodies are the same or different, or even a subset of the native title claim group, does not affect the fact that they did not emanate from the native title party.
The Tribunal therefore made no error in not taking those statements into account under s 39(1)(b).
The position with respect to ss 39(1)(a)(i) to (iii) is, however, slightly different. Those criteria are not so specifically confined in their scope and subject matter as s 39(1)(b) (see at [284] above). While s 39(1)(a)(i) does refer to the registered native title rights and interests, the other two subsections refer more broadly to the “life, culture and traditions” of those parties (s 39(1)(a)(ii)) and the development of “the social, cultural and economic structures” of those parties (s 39(1)(a)(iii)). I therefore agree with Mr Burragubba that those expressions refer to the life, culture, traditions etc of the members of the Wangan and Jagalingou native title claim group. However, I do not consider this difference brings about any change to the construction of the expression “native title party” or its role insofar as it applies to those subsections. That is so for the following reasons.
First, clearly the reference to “those parties” in ss 39(1)(a)(ii) and (iii) refers back to the “native title parties” in s 39(1)(a)(i). That being so, for the reasons given above at [283], I consider the expression “native title party” in all those subsections means the “native title party” as defined in s 253 and not the contrasting defined entity the “native title claim group”. In this case, where the native title party is a registered native title claimant, it has the role under the right to negotiate provisions of the NTA I have outlined in detail above. With respect to s 39(1)(a), that role will involve it acting as a representative of the native title claim group to convey its (the native title party’s) views to the Tribunal about the subject matters described in that subsection. The fact that the subject matter of those subsections encapsulates the interests of the native title claim group does not, in my view, alter the standing of the native title party, nor its role. In this respect, it is also important to note that the member, or members, of the native title party and, in turn, the registered native title claimant and, in turn, the applicant, are not outliers to the native title claim group. That is so because, in order to qualify as a member of an applicant, s 61(1) makes it clear that the person or persons concerned must also be members of the native title claim group.
For these reasons, as with the criterion in s 39(1)(b), the relevant considerations the Tribunal was bound to take into account on the criteria under s 39(1)(a) were the views of the native title party. Since Mr Burragubba’s statements did not contain the views of the native title party, they were not relevant considerations for the purposes of those subsections. It necessarily follows that the Tribunal member did not err in not taking them into account.
Two other observations are appropriate before leaving this ground. First, whether or not the Tribunal member decided to take account of Mr Burragubba’s statements under s 39(1)(f) was entirely a matter for him. It is clear from the Tribunal’s Reasons that the Tribunal member gave consideration to this matter and decided not to take the statements into account under that provision. I do not understand Mr Burragubba to contend that he committed any error in this respect. Secondly, there can be little doubt from reading the Tribunal’s Reasons (see at [93]–[127] above) that the absence of any material from the native title party had a significant effect on the outcome of the Tribunal’s determination. However, it is important to note that this was a consequence of the unanimous and deliberate decision of the native title party not to place any materials before the Tribunal. It does not, in my view, manifest any error on the part of the Tribunal.
Mr Burragubba has therefore failed on ground 3.
GROUND 2
Introduction
Ground 2 is set out above (at [129]). Mr Burragubba provided the following particulars to that ground:
(a)[The Tribunal] was obliged to hold an inquiry into [Adani’s] future act determination applications (NTA s.1 39(b)) (the “Inquiry”).
(b)The persons comprising the native title applicant in [the Wangan and Jagalingou] application were a party to the Inquiry (NTA s.141(2)).
(c)When conducting the Inquiry, [the Tribunal] was not bound by technicalities, legal forms or rules of evidence (NTA s.109(3)).
(d)During the Inquiry, [the Tribunal] received communications from the Applicant on 5 February 2015 and 12 February 2015, and from Ms Linda Bobongie on 2 April 2015 (the “communications”).
(e)[The Tribunal] concluded that the communications were not relevant to the Inquiry (at [30]-[32] of the Reasons) and, in making that conclusion, made no inquiries about:
(i)the decision-making processes of the native title party; or
(ii)the objections of the native title claim group to the proposed grant of mining leases 70505 and 70506.
(Emphasis omitted)
Contentions
On this ground, Mr Burragubba contended that, under s 139 of the NTA, “the Tribunal must hold an inquiry into” an application of the kind made by Adani, namely its right to negotiate applications. He also relied upon ss 141 to 143, which limit the parties to such an application, and to s 109(3) of the NTA, which requires the Tribunal to carry out its functions in a way that “is not bound by technicalities, legal forms or rules of evidence”. Mr Burragubba contended that the Tribunal therefore had a duty to inquire into the two issues described in particular (e) above, which he described as the “decision process” issue and the “opposition” issue. He submitted those two issues were “critical facts” to the Tribunal’s determination. He claimed that was so because they represented “the views of the native title claim group … central to the criterion in s 39(1)(b)”. Mr Burragubba also claimed that the facts relevant to these issues were “easily ascertainable”.
Adani and the State contended that no such obligation was imposed on the Tribunal. They submitted the Tribunal had a unanimous statement from the native title party to the effect that it neither consented to, nor opposed, the Tribunal making a determination on Adani’s right to negotiate application. In those circumstances, they submitted the two issues identified by Mr Burragubba were neither relevant, nor obvious.
Consideration
This ground can be disposed of briefly. First, while the Tribunal undoubtedly has an obligation under s 139 to conduct an inquiry into a right to negotiate application covered by s 75 of the NTA, that inquiry is not at large. In this instance, the scope of the inquiry was confined by the provisions of s 38, which prescribed the three types of determination the Tribunal could make, and s 39, which specified the considerations the Tribunal was bound to take into account. None of the criteria in s 39(1) of the NTA expressly raises either of the two issues identified by Mr Burragubba and nor do they do so implicitly.
Furthermore, the inquiry was confined to the three negotiation parties (s 141(2)) and only they could make submissions to the Tribunal (s 142). For the reasons set out above with respect to grounds 4 and 3, in this matter, this meant that the only persons who could validly express the opinions and wishes of the native title party about the criteria in s 39(1)(a) and (b) were the three members of the WJ Applicant acting collectively. Neither Mr Burragubba, nor anyone else, had any entitlement to place any materials before the Tribunal.
Since the identity and composition of the native title party was, in this instance, based on an entry in a public Register made after the Native Title Registrar had followed a closely prescribed registration process, the Tribunal was entitled to presume that party was duly authorised to represent the native title claim group in Adani’s right to negotiate applications before it. It was also entitled to assume that the native title party was following due process in discharging its role. In circumstances where the native title party’s representative stated an agreed unanimous position to the Tribunal as outlined above, there was therefore no warrant for the Tribunal to inquire into the two issues identified by Mr Burragubba. To the contrary, if it had conducted such an inquiry, I consider it would more likely have fallen into error.
On this aspect, it is somewhat ironic that at least one apparent purpose of Mr Burragubba’s first statement was to explain to the Tribunal why the Wangan and Jagalingou People were not participating in the Tribunal proceedings (see the final three paragraphs at [34] above). This was confirmed in Mr Burragubba’s subsequent email of 12 February 2015 (see at [40] above). It is also worth noting that, in his statements, apart from expressing his opposition to the Carmichael Mine, Mr Burragubba did not request the Tribunal to consider any particular issues, let alone the two issues identified in the particulars to this ground. To the contrary, on the question whether his first statement should be accepted, Mr Burragubba stated in his email of 12 February 2015 that his position was that “it is entirely a matter for the Tribunal to consider and respond to the statement” (see the fifth paragraph at [40] above; emphasis removed).
The Tribunal therefore made no error in not conducting an inquiry into the two issues identified by Mr Burragubba. It necessarily follows that the Tribunal did not fail to observe the rules of natural justice, or constructively fail to exercise its jurisdiction, by not inquiring into those issues and by not taking into account the materials submitted by Mr Burragubba and Ms Bobongie.
For these reasons, I consider that Mr Burragubba has also failed on ground 2.
STANDING
For completeness I should note one last matter. At the outset of this proceeding the State and Adani raised an issue about Mr Burragubba’s standing to bring the proceeding. However, at the hearing, they elected not to pursue that matter as a preliminary issue because it required a determination of at least some of the substantive issues of statutory construction that had been raised, for example who was entitled to submit materials to the Tribunal: see Combet v Commonwealth (2005) 224 CLR 494; [2005] HCA 61 at [164].
CONCLUSION
For these reasons, none of Mr Burragubba’s grounds of review has any merit. His third further amended originating application must therefore be dismissed. I will hear the parties on the question of costs.
I certify that the preceding three hundred and twenty-one (321) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 19 August 2016
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