Kelaray Pty Ltd v Dare

Case [2023] SASCA 46

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

KELARAY PTY LTD v DARE & ORS

[2023] SASCA 46

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

11 May 2023

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - HERITAGE PROTECTION

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - HERITAGE PROTECTION - SOUTH AUSTRALIA

In February 2020, the appellant applied for an authorisation under s 23 of the Aboriginal Heritage Act 1988 (SA) (AHA) in anticipation of a mineral exploration program that it proposed to undertake on Lake Torrens.

In June 2020, the Minister embarked upon a consultation program under s 13 of the AHA and provided a consultation package to consultees including the first, second and third respondents. The third respondent provided a submission opposing the grant of an authorisation.

On 29 December 2020, the Minister granted the authorisation under s 23 of the AHA which expressly authorised the appellant and its employees, agents or assignees to act in a manner that would otherwise contravene s 23 of the AHA (the Authorisation). The Authorisation was subject to six conditions imposed under s 14 of the AHA, as well as several further matters expressed as "expectations" on the part of the Minister.

The respondents brought an application for judicial review of the Minister’s decision to grant the Authorisation on various grounds asserting errors on the part of the Minister.

The primary judge upheld the review on a single ground, namely that the Minister misdirected himself and/or acted ultra vires by relying on the appellant’s Chance Find Procedures which is part of its cultural heritage management plan to protect Aboriginal sites, objects and remains. He did so on the basis that the power to grant an authorisation pursuant to s 23 of the AHA is limited by the other provisions of the AHA, such that it does not empower the Minister to grant an authorisation which is inconsistent with s 20 of the AHA. In his Honour’s view, the Authorisation granted by the Minister was inconsistent with s 20 because it detracted from the practical legal operation of that section. His Honour made orders allowing the application for judicial review and setting aside the Authorisation.

The applicant appeals the primary judge’s decision on grounds which challenge the conclusion that the Minister erred in granting the Authorisation in terms that were inconsistent with s 20 of the AHA.

The first, second and third respondents filed a notice of alternative contentions seeking to uphold the primary judge’s decision on grounds reflecting various of the unsuccessful grounds of review argued before the primary judge.

Held, (per the Court), allowing the appeal and setting aside the primary judge’s orders and dismissing the notice of alternative contentions:

1. The Authorisation granted under s 23 did not substantially impair the practical legal operation of the key provisions of the AHA, such as the powers vested in the Minister…

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Kelaray Pty Ltd v Dare [2023] SASCA 46
Case
[2023] SASCA 46
Decision Date

CaseChat Overview and Summary

Kelaray Pty Ltd sought judicial review of a decision by the Minister for Aboriginal Affairs and Reconciliation to grant an authorisation under section 23 of the Aboriginal Heritage Act (AHA) for exploration activities on Lake Torrens, South Australia. The dispute concerned whether the Minister had properly considered the heritage significance of the area and whether the authorisation was granted on the basis of reasonable expectations rather than binding conditions. The matter was heard on appeal by Livesey P, Doyle and Bleby JJ.

The court was required to determine whether the primary judge erred in finding that the Minister had failed to properly consider the heritage significance of the area and had treated certain measures as mere expectations rather than conditions precedent to the grant of the authorisation. Specifically, the court had to assess whether the Minister's understanding of the distinction between conditions and expectations was legally sound and whether this understanding impacted the validity of the authorisation.

The appellate court found that the primary judge's reasoning was sound. It held that once it was accepted that the Minister understood the distinction between conditions and expectations, it could not be said that the Minister regarded compliance with measures that were the subject of expectations, rather than conditions, as fundamental to the decision to grant the authorisation. Therefore, the court was not satisfied that any of the grounds for challenging the validity of the authorisation had been made out.

Consequently, the appeal was allowed, and the notice of alternative contentions was dismissed. The primary judge's orders, which had allowed the application for judicial review and set aside the Minister's decision to grant the authorisation, were set aside.

Orders

Orders of the court

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Background

Background to the litigation

Under s 26, it is an offence to fail, without reasonable excuse, to comply with a direction given under s 24.Factual background Kelaray is a wholly owned subsidiary of an ASX listed mining exploration company, Argonaut Resources Ltd. It is the holder of two exploration licences, being licences 5937 (the West Lake Torrens exploration licence) and 5945 (the Murdie exploration licence) (jointly, the Kelaray tenements). Lake Torrens is a salt lake in central northern South Australia. The surface of the lake is usually dry. It is approximately 240 kilometres in length and averages 30 kilometres in width. The West Lake Torrens exploration licence covers an area that includes not only a portion of Lake Torrens, but also a portion of Andamooka Island and some of the western shoreline of Lake Torrens. The Murdie exploration licence covers an area within Lake Torrens immediately to the east of this. In February 2020, Kelaray made an application for an authorisation under s 23 of the AHA (the Application). The Application was addressed to the then Premier, in his capacity as the Minister for Aboriginal Affairs and Reconciliation, and the Minister charged with the administration of the AHA. The authorisation was sought for the purposes of facilitating Kelaray’s exploration program on Lake Torrens, for which it had been granted the two exploration licences referred to above. The aim of the exploration program was to assess the potential for significant oxide copper-gold mineralisation through aerial gravity survey, infill gravity survey and deep diamond drilling. It was anticipated that the exploration program would take up to three years and include drilling in excess of 1,200 holes intended to target and define the anticipated resources, and constructing a campsite and a number of working sites. The Application sought an authorisation in respect of an area of 793.6 km² within the Kelaray tenements, being an area that included not only a portion of the surface of Lake Torrens, but also a section of Andamooka Island and a 500-metre-wide section of the Lake Torrens shoreline (the Application area). The activities proposed to be undertaken in the Application area were described as encompassing upgrading existing access tracks, creating new access tracks, drilling for water bores, constructing a new exploration camp on Andamooka island, clearing vegetation, constructing multiple access points, undertaking infill surveys, and deep diamond exploration drilling. The Application explained that the precise location of various of the activities, and indeed the nature and extent of the areas to be targeted by the exploration program, could not be known until the exploration work was in progress. The Application noted that because Kelaray might seek one or more joint venture partners to assist with the funding of the proposed exploration activities, which in turn might involve an assignment of an interest in the Kelaray tenements,[5] authorisation was sought in terms that would extend to successors in title to Kelaray’s rights in respect of the Application area. It also noted the involvement of numerous personnel in carrying out the contemplated activities.[5] Subject to the vetting and authorisation contemplated by the provisions of the Mining Act 1971 (SA).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The difficulty with this riposte to the judge’s reasoning is that it involved a reintroduction of the premise underpinning Contentions 11 and 12, which was correctly rejected. Once it is accepted that the Minister understood the distinction between conditions and expectations, it cannot be said that he regarded compliance with the measures that he made the subject of expectations rather than conditions as fundamental (in the sense of guaranteed or binding compliance with those measures being critical to the Minister’s decision to grant the Authorisation). It follows that the primary judge’s reasoning on this issue was sound, and should be upheld.Conclusion For the reasons given, we are not satisfied that any of the contended bases for challenging the validity of the Authorisation granted to Kelaray has been made out. We allow the appeal, and dismiss the notice of alternative contentions. We set aside the primary judge’s orders (i) allowing the application for judicial review and (ii) setting aside the Minister’s decision to grant the Authorisation under s 23 of the AHA.

Ratio Decidendi

Legal Principle Established

Kelaray is a wholly owned subsidiary of an ASX listed mining exploration company, Argonaut Resources Ltd. It is the holder of two exploration licences, being licences 5937 (the West Lake Torrens exploration licence) and 5945 (the Murdie exploration licence) (jointly, the Kelaray tenements). Lake Torrens is a salt lake in central northern South Australia. The surface of the lake is usually dry. It is approximately 240 kilometres in length and averages 30 kilometres in width. The West Lake Torrens exploration licence covers an area that includes not only a portion of Lake Torrens, but also a portion of Andamooka Island and some of the western shoreline of Lake Torrens. The Murdie exploration licence covers an area within Lake Torrens immediately to the east of this. In February 2020, Kelaray made an application for an authorisation under s 23 of the AHA (the Application). The Application was addressed to the then Premier, in his capacity as the Minister for Aboriginal Affairs and Reconciliation, and the Minister charged with the administration of the AHA. The authorisation was sought for the purposes of facilitating Kelaray’s exploration program on Lake Torrens, for which it had been granted the two exploration licences referred to above. The aim of the exploration program was to assess the potential for significant oxide copper-gold mineralisation through aerial gravity survey, infill gravity survey and deep diamond drilling. It was anticipated that the exploration program would take up to three years and include drilling in excess of 1,200 holes intended to target and define the anticipated resources, and constructing a campsite and a number of working sites. The Application sought an authorisation in respect of an area of 793.6 km² within the Kelaray tenements, being an area that included not only a portion of the surface of Lake Torrens, but also a section of Andamooka Island and a 500-metre-wide section of the Lake Torrens shoreline (the Application area). The activities proposed to be undertaken in the Application area were described as encompassing upgrading existing access tracks, creating new access tracks, drilling for water bores, constructing a new exploration camp on Andamooka island, clearing vegetation, constructing multiple access points, undertaking infill surveys, and deep diamond exploration drilling. The Application explained that the precise location of various of the activities, and indeed the nature and extent of the areas to be targeted by the exploration program, could not be known until the exploration work was in progress. The Application noted that because Kelaray might seek one or more joint venture partners to assist with the funding of the proposed exploration activities, which in turn might involve an assignment of an interest in the Kelaray tenements,[5] authorisation was sought in terms that would extend to successors in title to Kelaray’s rights in respect of the Application area. It also noted the involvement of numerous personnel in carrying out the contemplated activities.[5] Subject to the vetting and authorisation contemplated by the provisions of the Mining Act 1971 (SA).