Edwards v Santos Ltd

Case [2011] HCA 8

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

NOELENE MARGARET EDWARDS & ORS  PLAINTIFFS

AND

SANTOS LIMITED & ORS  DEFENDANTS

Edwards v Santos Limited [2011] HCA 8
30 March 2011
S153/2010

ORDER

1.     A writ of certiorari issue directed to the fourth defendant to quash:

(a)the decisions of the Federal Court of Australia made on 18 December 2009 and 17 March 2010 in proceeding QUD 86 of 2009; and

(b)the decision of the Full Court of the Federal Court made on 4 June 2010 in proceeding QUD 28 of 2010.

2.Dismiss the application for the issue of a writ of mandamus against the fourth defendant.

3.     The first, second and third defendants pay the costs of the plaintiffs in:

(a)the Federal Court of and incidental to the first, second and third defendants' motions for summary dismissal;

(b)     the Full Court of the Federal Court; and

(c)     this Court. 

Representation

J A McCarthy QC with J F Kildea and A L Tokley for the plaintiffs (instructed by Eddy Neumann Lawyers)

B W Walker SC with S B Lloyd SC and S R R Cooper for the first and third defendants (instructed by Blake Dawson Lawyers)

R J Webb QC with H P Bowskill and G J D del Villar for the second defendant (instructed by Crown Solicitor (Qld))

Submitting appearance for the fourth defendant

Intervener

S J Gageler SC, Solicitor-General of the Commonwealth with R G Orr QC and B Lim intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Edwards v Santos Limited

Practice and procedure – Federal Court of Australia – Summary judgment – Applications by defendants to dismiss proceedings summarily under s 31A(2) of Federal Court of Australia Act 1976 (Cth) – Plaintiffs "registered native title claimant" under s 253 of Native Title Act 1993 (Cth) ("NTA") in respect of certain land – Plaintiffs and first and third defendants negotiating Indigenous Land Use Agreement ("ILUA") under NTA that included land first and third defendants claimed was encumbered by "Authority to Prospect" ("ATP") granted by second defendant under Petroleum Act 1923 (Q) – ATP entitled first and third defendants to apply to Minister for grant of lease of encumbered land for purpose of petroleum exploration – Plaintiffs sought declarations that grant of lease to first and third defendants would not be valid and any lease granted would not be a "pre-existing right-based act" within meaning of s 24IB of NTA – Whether plaintiffs have sufficient interest for grant of declaratory and injunctive relief – Whether questions raised by plaintiffs hypothetical – Whether plaintiffs seeking advisory opinion.

Practice and procedure – Federal Court of Australia – Jurisdiction – Section 213(2) of NTA conferred jurisdiction on Federal Court with respect to "matters arising under" NTA – Where determination of whether lease would be valid and…

Continue reading Edwards v Santos Ltd

Sign in free to access the full text

Details
AGLC
Edwards v Santos Ltd [2011] HCA 8
Case
[2011] HCA 8
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for writs of certiorari and mandamus concerning decisions of the Federal Court of Australia. The applicants, registered native title claimants, sought to quash orders made by the Federal Court at first instance and on appeal, which had dismissed their proceedings summarily. The dispute arose from negotiations for an Indigenous Land Use Agreement (ILUA) concerning land claimed by the applicants, which was also subject to an Authority to Prospect (ATP) granted by the State of Queensland to Santos Ltd and Delhi Petroleum Pty Ltd. The applicants sought declarations that the grant of a petroleum lease under the ATP would not be valid and would not constitute a "pre-existing right-based act" under the Native Title Act 1993 (Cth).

The central legal issues before the High Court were whether the Federal Court had jurisdiction to hear the matter, whether the applicants had sufficient interest to seek declaratory and injunctive relief, and whether the questions raised were hypothetical or sought an advisory opinion. Specifically, the Court had to determine if the negotiation of an ILUA, and the validity of potential petroleum leases in relation to it, constituted a "matter arising under" the Native Title Act, thereby conferring jurisdiction on the Federal Court under s 213(2) of that Act. The Court also considered the scope of its own original jurisdiction under s 75(v) of the Constitution and its power to award costs.

The High Court found that the Federal Court's primary judge and the Full Court had erred in concluding that there was no matter before them, that the plaintiffs lacked standing, that the application was merely for an advisory opinion, and that the Federal Court lacked jurisdiction. The Court reasoned that the validity of the ATP and the potential grant of a petroleum lease were directly relevant to the bargaining position of the native title claimants in the ILUA negotiations, and therefore constituted a "matter arising under" federal law. The Court noted that mistakenly denying jurisdiction is a jurisdictional error attracting a writ of certiorari. The High Court quashed the decisions of the Federal Court and dismissed the application for a writ of mandamus. The first, second, and third defendants were ordered to pay the costs of the applicants in the Federal Court proceedings and in the High Court.

Orders

Orders of the court

1. A writ of certiorari issue directed to the fourth defendant to quash:

(a) the decisions of the Federal Court of Australia made on 18 December 2009 and 17 March 2010 in proceeding QUD 86 of 2009; and

(b) the decision of the Full Court of the Federal Court made on 4 June 2010 in proceeding QUD 28 of 2010.

2. Dismiss the application for the issue of a writ of mandamus against the fourth defendant.

3. The first, second and third defendants pay the costs of the plaintiffs in:

(a) the Federal Court of and incidental to the first, second and third defendants' motions for summary dismissal;

(b) the Full Court of the Federal Court; and

(c) this Court.

Background

Background to the litigation

This is an application in the original jurisdiction of this Court for the issue of writs pursuant to s 75(v) of the Constitution in relation to decisions of the Federal Court of Australia at first instance (Logan J) and the Full Court of that Court (Stone, Greenwood and Jagot JJ). The plaintiffs were driven to this course because s 33(4B)(a) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") operates to preclude them from seeking special leave to appeal to this Court against the Full Court's decision. The substance of the relief sought should be granted for the following reasons.The background The plaintiffs, on behalf of the Wongkumara People, have for some time been pursuing but have not yet succeeded in a native title claim in respect of certain land in south-west Queensland and north-west New South Wales ("the Claimed Land"). The plaintiffs are the "registered native title claimant" within the meaning of s 253 of the Native Title Act 1993 (Cth) ("the NTA"). The first defendant is Santos Limited, and the third defendant is Delhi Petroleum Pty Limited ("the petroleum defendants"). The petroleum defendants are the holders of Authority to Prospect 259P ("the ATP") in respect of land in south-west Queensland which falls within the boundaries of the Claimed Land. The ATP was granted by the second defendant, the State of Queensland, on 31 January 1979 under the Petroleum Act 1923 (Q) ("the Petroleum Act"). It was purportedly varied, extended or renewed thereafter – most recently, on 3 January 2008 for a term of four years commencing on 1 January 2007. Under s 40(1) of the Petroleum Act, the holder of an authority to prospect in respect of a particular area may apply to the Minister for a grant of a petroleum lease covering that area. The holder becomes entitled to the grant upon satisfaction of certain conditions contained in s 40(2). The petroleum defendants did not raise any shadow of a doubt about either their willingness to apply or their capacity to satisfy the conditions. On 16 January 2001 six representatives of the Wongkumara People (four of whom are among the plaintiffs) and the petroleum defendants (amongst others) entered an Indigenous Land Use Agreement ("the ILUA") under the NTA. The ILUA was not registered. It was to expire on 16 January 2006. The function of the ILUA was to deal with problems arising from the fact that native title can be difficult to prove, and the processing of native title claims can take a long time. To use the words of the Explanatory Memorandum to the Native Title Amendment Bill 1997[15]:"over most of mainland Australia, governments and others seeking to use land do not know if native title exists, and if it does, who holds it. It is difficult in such circumstances to have agreements which provide the necessary level of legal certainty. These provisions [including what is now Pt 2 Div 3 subdiv C of the NTA] are designed to give security for agreements with native title holders, whether there has been an approved determination of native title or not, provided certain requirements are met."Not only did the ILUA give security to the petroleum defendants in dealing with native title claimants who may become native title holders, but it gave the plaintiffs, as native title claimants, the opportunity to obtain immediate advantages which would otherwise be postponed until a perhaps distant day when their native title claim succeeds. Thus the recitals to the ILUA included the following account of the ILUA: "The Joint Venture Parties [who included the petroleum defendants] receive certainty in [their] dealings with respect to native title and cultural heritage. The Native Title Parties [who included some of the plaintiffs] receive certainty in the involvement in cultural heritage management in the Joint Venture Parties [sic] dealings with the Project Area as well as compensation, employment and other benefits."[15]At par 7.2.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ, GUMMOW, CRENNAN, KIEFEL AND BELL JJ HAYNE J HEYDON J
These concessions by the petroleum defendants and the Solicitor-General were correct. While a claim to damages for breach of contract is a claim for relief under State law, if the contract is in respect of a right which is a creature of federal law, the claim arises under the federal law[31]. That is true whether the State law is common law, like the law of contract, or statute law, like the position of the ATP in relation to the "production licences", ie leases, under s 40 of the Petroleum Act. And there is also a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from a liability or obligation of that defendant is a law of the Commonwealth[32]. Here the petroleum defendants are alleging that they are immune from the "right to negotiate provisions of the NTA" because of the pre-existing rights based acts provisions of the NTA. Hence there is a matter arising under a federal law. [31]LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581; [1983] HCA 31.[32]Felton v Mulligan (1971) 124 CLR 367 at 408; [1971] HCA 39; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at 262 [29]; [2005] HCA 38.Conclusion The opinion of the primary judge, not disturbed by the Full Court, was erroneous in concluding that there was no matter, that the plaintiffs had no standing, that the plaintiffs' application was merely for an advisory opinion, and that the Federal Court had no jurisdiction. Mistakenly to deny jurisdiction is a jurisdictional error attracting a writ of certiorari.Some arguments of the defendants In view of the conclusion just arrived at, many of the arguments advanced by the parties are immaterial. But it is necessary to note a few arguments put by the petroleum defendants and the State of Queensland, even though they are immaterial. The petroleum defendants argued that the proceedings were hypothetical for the following reason. They contended that the plaintiffs were arguing that if the ATP were invalid, the grant of "production licences", ie leases, could be a proper subject for the new ILUA. They continued: "If the plaintiffs' argument that the ATP is invalid were correct …, there is nothing that an ILUA could do to remedy that defect. What follows is that, if the ATP is valid then the grant of a petroleum lease would be valid as a PERBA …; in such a case there is no need to include reference to it in any ILUA. Conversely, if the ATP were to be found to be invalid, then the petroleum defendants would have no capacity under State law to obtain petroleum leases pursuant to that ATP and therefore there would be no need to address that issue in any ILUA either. That is, whatever view were to be taken of the validity of [the ATP], there is no cause for it ever to be the subject of an ILUA, showing again the hypothetical nature of the present proceeding."This submission does not undercut the proposition that the bargaining position of the plaintiffs could be much improved if they could demonstrate the invalidity of the ATP, because it would negate one of the reasons why the petroleum defendants refused to make a gift of the Pastoral Leases. The same proposition answers another argument of the petroleum defendants: that the plaintiffs identified as a "matter" the question of what can lawfully be the subject of the new ILUA, but that had not been pleaded.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, CRENNAN, KIEFEL AND BELL JJ, HAYNE J, HEYDON J

Full text does not contain this section.