Glencore Coal Pty Limited v Franks

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FEDERAL COURT OF AUSTRALIA

Glencore Coal Pty Limited v Franks [2021] FCAFC 61  

Appeal from: Glencore Coal Pty Limited v Franks [2020] FCA 1801
File number(s): NSD 1357 of 2020
Judgment of: REEVES, PERRY AND ABRAHAM JJ
Date of judgment: 27 April 2021
Catchwords: PRACTICE AND PROCEDURE – application for release from implied Harman undertaking with respect to expert report borne out of mediation process in discontinued native title proceedings – report sought to be used by Glencore Coal for purpose of making representations regarding application under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Heritage Act) by former applicants in the native title proceeding – where s 10 of Heritage Act concerns an exercise of executive power of a largely political character – consideration of circumstances in which a release from the implied Harman undertaking has been granted and applicable principles – whether primary judge erred in declining to exercise discretion to grant release from implied Harman undertaking – where strong public interest exists in ensuring Aboriginal peoples are not deterred from agreeing to the use of court processes in native title proceedings to assist in resolving their claims – appeal dismissed
Legislation:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 10

Federal Court Rules 2011 (Cth) rr 23.01, 34.120–34.128

Native Title Act 1993 (Cth) ss 61, 82, 86A, 86B

Cases cited:

Ashby v Slipper (No 2) [2016] FCA 550; (2016) 343 ALR 351

Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833

Australian Trade Commission v McMahon (1997) 73 FCR 211

BCI Finances Pty Ltd (in liq) v Commissioner of Taxation [2015] FCA 679

Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd [2018] VSC 666

Boronia Park Preservation Group Inc v MSMG Developments Pty Ltd (No 2) [2015] NSWLEC 155

Chapman v Luminis Pty Ltd (No 5) [2000] FCA 1407

Crest Homes Plc v Marks [1987] 1 AC 829

House v The King (1936) 55 CLR 499

In the matter of Bluemine Pty Ltd (in liq) [2019] NSWSC 1474

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283

Prime Finance Pty Ltd v Randall [2009] NSWSC 361

Sinnott v Chief of Defence Force [2020] FCA 643

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd [2019] FCA 1464

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

Perry M and Lloyd S (eds), Australian Native Title Law (Thomson Reuters, 2nd ed, 2018)
Division: General Division
Registry: New South Wales
National Practice Area: Native Title
Number of paragraphs: 72
Date of hearing: 23 March 2021
Counsel for the Appellant: Mr M Izzo SC with Ms S Patterson
Solicitor for the Appellant: Ashurst Australia
Counsel for the Respondents: Mr I G B Roberts SC with Mr J Simpson
Solicitor for the Respondents: Gadens Lawyers

ORDERS

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Details
Case
[2021] FCAFC 61
Decision Date

CaseChat Overview and Summary

Glencore Coal Pty Limited appealed against an order made by the Federal Circuit and Family Court of Australia that denied its request for release from an implied Harman undertaking concerning an expert report borne out of a mediation process in discontinued native title proceedings. The report, prepared by Dr Sackett, was sought to be used by Glencore for an application under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The court had to determine whether the primary judge erred in declining to exercise the discretion to grant release from the implied Harman undertaking. The appeal raised several grounds, including whether the primary judge erred in considering the fact that the report was borne out of mediation and whether there was a strong public interest in ensuring Aboriginal peoples are not deterred from using court processes in native title proceedings.

The court found that the primary judge did not err in taking into account the fact that the Sackett report was borne out of mediation. The court held that the report was conceived as a vehicle to assist in the settlement of the proceeding or issues in the proceeding. The court was cautious about granting relief from the Harman undertaking in these circumstances, as it could affect the willingness of First Nation peoples to cooperate with, or participate in, the Court’s processes. The court also found that the primary judge was correct in considering the strong public interest in ensuring Aboriginal peoples are not deterred from using court processes in native title proceedings. The appeal was dismissed, and Glencore was ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. The appellant is to pay the respondents’ costs of the appeal to be taxed failing agreement.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On 1 April 2021, this Court pronounced an order dismissing the appeal, with reasons and the order as to costs to be published later. Our reasons for making that order and the order that the appellant is to pay the respondent’s costs are set out below. 2. BACKGROUND What follows draws upon the more detailed description of the factual background to this matter set out in the primary judgment at [9]–[28]. On or about 7 July 2020, the respondents lodged an application with the Minister seeking a declaration under s 10 of the Heritage Act in relation to land including “the Ravensworth Estate, original properties of James Bowman, Capt. Robert Lethbridge, James Glennie, and the surrounding area” (the requested protection area). The respondents’ s 10 application described the requested protection area “as a site of conflict. The area also contains the traditional grounds of the Wonnarua people.” In expanding upon these matters and the alleged source of injury or desecration to the area, the respondents explained in the application that:(1)the requested protection area was identified on the basis of the Glencore Glendell Continued Operations Coal Project, Aboriginal Cultural Heritage Assessment Anthropology Report on Plains Clans of the Wonnarua People (PCWP) Cultural Values prepared by the anthropologist, Associate Professor Neale Draper, on 20 June 2020 (the Draper report);(2)the Draper report supported the significance placed on the requested protection area, together with the report of ethno-historian, Dr Skye Krichauff, both of which were attached to the application; and(3)the requested protection area is a significant Aboriginal area to them because it “contains a landscape of ongoing conflict and massacre of the Wonnarua people”, contains places of ceremonial significance, and, “[w]hile our people moved throughout our lands to camp where food and hunting were plentiful and to gather raw materials for tool manufacture, we returned to this area as our belonging place”. As we explain below, before making a declaration under s 10(1) of the Heritage Act that the area is a significant Aboriginal area under threat, the Minister must, among other things, receive and consider a report under s 10(4). Accordingly, the Minister subsequently appointed Mr Leo, an anthropologist, to provide a report to her with respect to the respondents’ application. The requested protected area is significant in this appeal in two other respects. First, it is located between Muswellbrook and Singleton in New South Wales within an area where Glencore or its associated entities hold numerous mining tenements. Secondly, it falls within the claim area of the native title determination application filed by the respondents in this Court under s 61 of the Native Title Act 1993 (Cth) (NTA) in 2013: Scott McCain Franks & Anor on behalf of The Plains Clans of the Wonnarua People v Attorney General of New South Wales & Ors (NSD1680/2013, later NSD39/2019) (the PCWP native title proceeding). Glencore became a respondent party to that proceeding in July 2015.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Given these matters, ground 5 must be dismissed. 6. CONCLUSION For the reasons set out above, there is no merit in any of the grounds of appeal raised by Glencore. Accordingly, we dismissed its notice of appeal by an order made on 1 April 2021. Since Glencore has failed on all its grounds of appeal and there is no reason why costs should not follow the event, Glencore is also to pay the respondents’ costs of the appeal to be taxed failing agreement.

Ratio Decidendi

Legal Principle Established

In turn, “Aboriginal tradition” is defined as “the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships” (s 3(1)).5. CONSIDERATION5.1 Did the primary judge err in taking into account the fact that the Sackett report was borne out of mediation (Ground 1)? Ground 1 of the notice of appeal challenges the primary judge’s finding at [39] of her reasons. Placing that finding in context, her Honour held that: 38 On the one hand, the [Sackett report] is a report of an independent expert. It came into existence as a result of an application to which Mr Franks and Mr Lester were parties. But for the decision of Mr Franks and Mr Lester to discontinue the Native Title Proceeding, there was at least a real prospect that it would have been admitted into evidence and therefore enter the public domain. The document does not contain commercially sensitive material or personal data of the kind I expect Wilcox J [in Springfield Nominees] had in mind. The Native Title Proceeding and the s 10 application have some common features, notably the common applicants and the common interest Glencore has in them.39 On the other hand, while the Sackett report may have found its way into evidence had the Native Title Proceeding not been discontinued, Mr Franks contended that the report was prepared for the purpose of a mediation in the Native Title Proceeding. The orders made by Perry J do not limit its use in this way but it is apparent from the Joint progress report delivered to the Court which supported those orders that it was borne out of the mediation process and conceived as a vehicle to assist in the settlement of the proceeding or issues in the proceeding. One should be cautious about granting relief from the Harman undertaking in these circumstances. Giving leave to Glencore, which was not a party to the mediation, to use the report for an ulterior purpose could conceivably affect the willingness of First Nation peoples to cooperate with, or participate in, the Court’s processes(emphasis added). Contrary to the primary judge’s findings emphasised in the passages above, Glencore submits that the fact that the Sackett report was “borne out of the mediation process” was irrelevant because it was created for the purposes of the litigation and could have been expected to enter the public domain given the following matters:(1)the Joint Progress Report contemplated that the Sackett report would be used outside mediation and in particular, may lead to the parties resolving or reconfiguring their claims consistently with the factual conclusions in the report (referring to the Joint Progress Report (Appeal Book (AB) Part C, Tab CRI39) (the Joint Progress Report) at [11] and [14]);(2)the terms of the orders made on 6 August 2018 appointing Dr Sackett and providing for the preparation of the report and its circulation to all parties to the proceeding (and not only those party to the mediation), demonstrate that it was contemplated that the report would be used outside the mediation process;(3)the Sackett report was prepared pursuant to r 23.01(1)(a) of the FCR and was not subject to “without prejudice” privilege; and(4)the primary judge found at [38] that, consistently with these considerations, there was at least a “real prospect” that the Sackett report would have been admitted into evidence and therefore have entered the public domain but for the native title proceeding being discontinued.(appellant’s submissions dated 2 March 2021 (AS) at [18]–[23]).