Gurubana Gunggandji People v Great Barrier Reef Marine Park Authority

[1999] FCA 202

FEDERAL COURT OF AUSTRALIA

Gurubana Gunggandji People v Great Barrier Reef Marine Park Authority [1999] FCA 202

STUART HARRIS, LAURENCE HARRIS AND ESTON SINCLAIR HARRIS (ON BEHALF OF THEMSELVES AND THE GURUBANA GUNGGANDJI PEOPLE OF YARRABAH IN THE STATE OF QUEENSLAND) v GREAT BARRIER REEF MARINE PARK AUTHORITY

Q 23 of 1999

KIEFEL J
BRISBANE

26 FEBRUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 23 OF 1999

BETWEEN:	STUART HARRIS, LAURENCE HARRIS AND ESTON SINCLAIR HARRIS (ON BEHALF OF THEMSELVES AND THE GURUBANA GUNGGANDJI PEOPLE OF YARRABAH IN THE STATE OF QUEENSLAND) Applicants
AND:	GREAT BARRIER REEF MARINE PARK AUTHORITY Respondent
JUDGE:	KIEFEL J
DATE OF ORDER:	26 FEBRUARY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application for injunction be refused.

2.The applicants, Stewart Harris and Eston Sinclair Harris, pay the respondent’s costs of the motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 23 OF 1999

BETWEEN:	STUART HARRIS, LAURENCE HARRIS AND ESTON SINCLAIR HARRIS (ON BEHALF OF THEMSELVES AND THE GURUBANA GUNGGANDJI PEOPLE OF YARRABAH IN THE STATE OF QUEENSLAND) Applicants
AND:	GREAT BARRIER REEF MARINE PARK AUTHORITY Respondent

JUDGE:	KIEFEL J
DATE:	26 FEBRUARY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In this matter the applicants, who are native title claimants, seek injunctions to prevent the Great Barrier Reef Marine Park Authority issuing permits with respect to activities in the Marine Park area, in aid of their application for judicial review.  In that application the applicants allege, in brief summary, that they were denied procedural fairness because the Authority did not give them sufficient particulars of the applications for permit, and that therefore an opportunity to comment upon them, as the Native Title Act 1993 as amended provides, was denied to them.

2. Section 24HA(7) of the Native Title Act 1993 provides relevantly that, with respect to licences or permits which might be granted under legislation concerned with the management or regulation of water, the permit provider must, prior to granting it, notify in the way determined in writing by the Commonwealth Minister, any registered native title claimants in relation to the waters that will be affected by the act or acts of the class to be done, and that they be given an opportunity to comment on the act or class of acts.

3. The argument outlined for the purposes of these interlocutory proceedings is that the section requires more than what has been provided.  In submissions, this was elevated at one point to a proposition that native title claimants would need to be provided with information about any act or matter in the application for permit which might affect native title rights.  That would, however, seem to me to require the exercise of some judgment on the part of the Authority.

4. The applicants were given twenty-eight days to respond, and they responded in a general way, and included assertions as to the need for further and better particulars.  The applicants were unable to say how much time they needed to respond to the notifications and said that this was dependent upon the information to be provided.  In addition, they would require a period sufficient to enable them to undertake fairly extensive consultative processes with the members of their group. The applicants submit that, at the least, they ought to have been provided with the information furnished to the Authority with the application, which information regulations 13AC(1) and (2) of the Great Barrier Reef Marine Park Authority regulation provide.  The Authority responds that it is only entitled to provide what it is obliged to provide third parties under relevant legislation, taking into account privacy considerations.

5. The principal issue to this point then is as to the content of the notice. In that respect, the Authority submits that it has followed the requirements of the Minister’s determination of September 1998. It is not clear whether that is challenged, but in any event the applicants will contend that the determination is itself invalid, as having been expressed as undertaken by reference to the wrong section. Where this leaves the obligation to notify in s 24HA(7)(a) has not yet been gone into, since only submissions in outline were required on the interlocutory hearing. The applicants will also contend that they had insufficient time provided to consider the large number of applications for permit notified.

6. Of the order of some 124 applications for permit are now in question, and they were provided, in the main, in November 1998 by way of notice to the applicants.  Some were provided later, in December 1998 and January 1999.  Eighty or so of them concern renewals of permit, leaving forty or so new applications.  A small number of those are for research purposes.  The majority comprise permits to use sea-going vessels of different types in conjunction with tourist activities, and relate to associated ventures to reefs and islands.  They are with respect to a large zone or zones of which the native title claim area forms a smaller part.  There is one area in the native title claim area that is of special religious significance. The Authority is aware of this.

7. Since the receipt of the first notices some three months has now passed.  The Authority advises that in the usual course permits take about four months to process, and that a large number of those in question might be issued by the end of March.  The Authority does not seek to argue to the contrary of there being a serious issue to be determined by the judicial review proceedings.

8. Whilst I have some doubts about some aspects of the argument, in the absence of it being fully developed I hesitate to express a preliminary view upon it.  For present purposes it suffices to indicate that the outcome which the applicants desire would be to give them more information to allow them to offer comment to the Authority;  that is to say to seek to persuade the Authority of their view in a particular case.  They do not suggest that they would necessarily be challenging a large number of the applications for permit.  They would seek to identify those which do cause them concern.  They are unable to say at present whether any of them do.  The question then is whether those applicants, and more particularly those for new permits, ought to be deprived of their permits whilst this process is undertaken.

9. I emphasise the new permits because of the provision in the regulations to which I was taken, regulation 19D, which automatically extends existing permits until a determination of the renewal.  The applicants point out that the permits can be for six years.  At the other end of the timeframe, however, it is not difficult to appreciate that finances and planning will be affected by delay in the granting of permits, as some evidence obtained at short notice by the Authority confirms.

10. I do not accept that limiting the injunction to exclude reference to the native title area, as was advanced during the course of submissions, is likely to be practicable, or at least I am unable to conclude on the state of the evidence that that is so.  On the other hand, whilst I appreciate the apprehension the applicants may have as to what impacts are possible with respect to any application, it is not possible to conclude that there is any real likelihood of damage to their native title interests in the event that any particular permit were to be granted.  It would seem to me inappropriate, if not inaccurate, simply to refer to there being large numbers of permits.  These proceedings after all concern the right to particulars with respect to individual applications.  Moreover a large number of these applications, concerned as they are with renewals, will be with respect to activities which have been undertaken for some time already.

11. The applicants also submitted that, once granted, it would be more difficult for them to dislodge the permits.  The regulations to the Great Barrier Reef Marine Park Authority Act 1993 provide, with respect to persons whose interests are affected by the grant of a permit, that they might seek a re-consideration by the Authority of that decision.  Regulation 22D provides for review of that decision by the Administrative Appeals Tribunal.  The review process is quite extensive and it exists with respect to a planning regime set up under legislation which obliges the Authority to take account of areas of cultural and heritage importance:  see regulation 13AC(4)(b).  A breach of that obligation would itself found a basis for review.  Accepting that review is limited to particular kinds of areas recognised by the law, nevertheless the process which the applicants here seek to pursue is only properly to be seen as connected with an opportunity to comment.

12. A consideration of the likely effects of an injunction to prevent permits issuing obliges me to the conclusion that it should not be granted.  The Authority also points to a failure on the part of the applicants to offer an undertaking as to damages.  An undertaking, to make good any damage occasioned by the order sought by applicants, is usually required.  It would be difficult here to estimate the extent of damage to those not able to have their permits issued in a timely way.  The applicants submit that an undertaking is unnecessary as the relief is more in the nature of a stay pending the proceedings.  That may be so as far as the decision maker is concerned, but I do not consider it addresses, in any way, the position of the applicants for the permit, who may later seek compensation. 

13. I have not overlooked, in considering the effects of any injunction sought, the question of the time within which this matter might be heard. It is perhaps regrettable that, had the applicants sought only declaratory relief to provide an answer to any question they thought arose under s 24HA(7) and accepted that injunctions might not be practicable, given their lack of evidence as to the effects of permits and the time which has passed since the notifications were provided, the matter might have been concluded now.

14. I have, in the process of considering this matter, then also considered whether the allocation of an early hearing date would be appropriate.  That was not, however, the course taken by the applicants and I think that now the matter has proceeded beyond the point where an urgent hearing is appropriate. 

15. In summary, I do not consider that an injunction to prevent permits issuing by the Authority is appropriate or warranted when regard is had to the effects it is likely to have balanced against quite unknown consequences with respect to any native title rights that are established.  In these circumstances, the application for injunction is refused.

16. In relation to the question of costs, it seems to me that there is nothing to take this case out of the ordinary rule in litigation.  There are always risks associated with seeking urgent interlocutory orders from the Court which affect other people, and the usual consequence is that an unsuccessful application meets with an order for costs in favour of the other party brought to Court.  As I have said, the applicants did not conduct these proceedings as a test case.  Had they done so, other consequences as to costs might have followed.

17. There will therefore be an order that the applicants, Stewart Harris and Eston Sinclair Harris, pay the respondent’s costs of the motion.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             26 February 1999

Counsel for the Applicant:	Mr G Hiley QC and Mr G Koppenol
Solicitor for the Applicant:	Paul Richards & Associates
Counsel for the Respondent:	Mr G Gibson QC and Mr P Flanagan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 February 1999
Date of Judgment:	26 February 1999