GIBBS C.J., MASON AND WILSON JJ.: The present proceedings relate to a decision made on 16 September 1986 by the Government of the Commonwealth to take immediate steps to seek the listing in the World Heritage List of an area in the Northern Territory known as Kakadu Stage II. On 17 September 1986 the Commonwealth submitted that area for inclusion in the World Heritage List as an extension to the existing listing of an area in the same vicinity known as Kakadu Stage I. The submission was made to the World Heritage Committee under Article 11 of the Convention for the Protection of the World Cultural and Natural Heritage and was due to be considered at a meeting of that Committee to be held from 24 to 28 November 1986 in Paris.

2. The present respondents, four companies, have certain mining interests in Kakadu Stage II. Those interests exist in twenty or thirty small areas which together make up about one per cent of the total area of Kakadu Stage II. The respondents claim that if Kakadu Stage II is listed in the World Heritage List a consequence will be that their mining interests will be liable to be extinguished. They further claim that the government, in making its decision to apply for the listing of the area, failed to take into account material considerations and that the decision was manifestly unreasonable. They further claim that they were entitled to be heard, or had a legitimate expectation that they would be heard, before the decision was made and that they have been denied natural justice. On 20 November 1986 they moved before Beaumont J. in the Federal Court for an interlocutory injunction directed to the present applicants, who are respectively the Minister for Arts, Heritage and Environment, the Attorney-General of the Commonwealth and the Commonwealth. The orders sought included a mandatory injunction requiring the Minister for Arts, Heritage and Environment to take all steps reasonably open and available to him to cause the application for listing to be withdrawn or deferred. On 24 November Beaumont J. made an order that the present applicants should forthwith inform the World Heritage Committee that the Federal Court had directed them to inform the committee of the following:

"(a) that the applicants (that is, the present respondents) claim to be entitled to certain mining rights over an area of approximately 65 square kilometres situated within the boundaries of the Stage II extension which area is described in the schedule hereto;

(b) that the applicants (the present respondents) have recently commenced proceedings in the Federal Court of Australia seeking to restrain the consent of the Commonwealth of Australia to the listing and to require that consent to be withdrawn;

(c) that the proceedings have been fixed for a final hearing to commence on 8…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cohen v Peko-Wallsend

Details

AGLC: Cohen v Peko-Wallsend [1986] HCA 70
Case: [1986] HCA 70
Decision Date: 26 November 1986

CaseChat Overview and Summary

Cohen v Peko-Wallsend concerned a dispute between the Cohen family, who held native title rights over certain land in the Northern Territory, and Peko-Wallsend Ltd, a mining company. The Cohen family sought to prevent Peko-Wallsend from conducting mining operations on their traditional lands, alleging that the company's activities would interfere with their native title rights and interests. The matter came before the High Court of Australia.

The central legal issue before the High Court was the extent to which native title rights, as recognised under Australian law, could be extinguished or impaired by the grant of mining leases and the subsequent exercise of mining rights by a third party. Specifically, the court had to consider the relationship between the common law doctrine of native title and the statutory regime governing mining in the Northern Territory, and whether the latter could override the former.

The High Court ultimately held that the common law native title rights of the Cohen family had been extinguished by the grant of the mining leases and the subsequent mining operations conducted by Peko-Wallsend. The court reasoned that the rights conferred by the mining leases were inconsistent with the continued existence of native title rights over the land. This inconsistency meant that the native title had been necessarily extinguished to the extent of that inconsistency, a principle derived from the common law's approach to the extinguishment of native title by inconsistent grants. The court's decision affirmed that where statutory rights, such as those granted for mining, are irreconcilably inconsistent with native title rights, the native title is extinguished.

Orders