Kemppi v Adani Mining Pty Ltd (No 4)

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FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245

File number: QUD 194 of 2017
Judge: REEVES J
Date of judgment: 17 August 2018
Catchwords:

NATIVE TITLE – where a native title representative body issued a certificate under s 203BE(1)(b) of the Native Title Act 1993 (Cth) (the NTA) certifying an application for registration of an indigenous land use agreement (ILUA) – where that ILUA was subsequently registered by the Native Title Registrar on the Register of ILUAs under Part 8A of the NTA – where the applicant sought to challenge the validity of the certificate and registration – whether the native title representative body acted unreasonably or failed to take into account relevant considerations in deciding to issue the certificate – the principles on legal unreasonableness and relevant considerations – whether the application to register the ILUA contained a “complete description” of the area in which native title rights were to be surrendered and extinguished in accordance with regs 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) – the primary purpose of the NTA – the relationship between and purposes of ss 24CG, 203BE and 251A of the NTA – the functions of native title representative bodies – the significance of the phrases “persons who hold or may hold native title in relation to land and waters” in ss 24CG(3)(b)(i) and 203BE(5)(a) and “the persons who hold or may hold the common or group rights comprising the native title” in s 251A

PRACTICE AND PROCEDURE – the application of r 20.03 of the Federal Court Rules 2011 (Cth) – when the “implied undertaking” not to use any document disclosed in a proceeding for any purpose otherwise than in relation to that proceeding applies

Held: application dismissed

Legislation:

Native Title Act 1993 (Cth)
Federal Court Rules 2011 (Cth)

Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Bright v Northern Land Council [2018] FCA 752
Buck v Bavone (1976) 135 CLR 110
Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Esposito v Commonwealth (2015) 235 FCR 1; [2015] FCAFC 160
Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10
Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 1469
Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v…
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Details
Case
[2018] FCA 1245
Decision Date

CaseChat Overview and Summary

The case of Kemppi v Adani Mining Pty Ltd (No 4) involved a challenge to the validity of an indigenous land use agreement (ILUA) registration. The applicant, Ms Delia Kemppi, sought to overturn the registration of an ILUA between the Wangan and Jagalingou People and Adani Mining Pty Ltd, arguing that the certificate issued by the native title representative body was unreasonable and did not account for relevant considerations. The court was required to determine whether the native title representative body acted unreasonably or failed to take into account relevant considerations in deciding to issue the certificate, and whether the application to register the ILUA contained a complete description of the area in which native title rights were to be surrendered and extinguished. The court also needed to consider the relationship between and purposes of sections 24CG, 203BE and 251A of the Native Title Act 1993 (Cth), and the functions of native title representative bodies.

The court found that Ms Kemppi's challenge did not have merit, as the native title representative body had not acted unreasonably or failed to take into account relevant considerations in issuing the certificate. The court found that the native title representative body had followed the correct process in issuing the certificate and had considered relevant factors in making their decision. Furthermore, the court found that the application to register the ILUA contained a complete description of the area in which native title rights were to be surrendered and extinguished. The court also found that the relationship between and purposes of sections 24CG, 203BE and 251A of the Native Title Act 1993 (Cth) were properly understood by the native title representative body, and that their functions were not misapplied in this case.

The court dismissed the application and ordered that the applicants pay the respondents' costs. This decision highlights the importance of following the correct process and considering relevant factors when issuing a certificate for the registration of an ILUA, and the need for applicants to provide a complete description of the area in which native title rights are to be surrendered and extinguished.

Orders

Orders of the court

1. The applicants’ further amended originating application filed 18 December 2017 is dismissed.

2. The applicants pay the respondents’ costs to be agreed or assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I should say at the outset that I have included the following somewhat lengthy survey of the evidence adduced in this matter in deference to the efforts of the parties and in case this matter goes elsewhere. Its length and detail should not, however, be taken as an indication that I consider all of the evidence to be relevant to an issue I need to decide in this matter. To the contrary, as will emerge later in these reasons, I consider most of this evidence, particularly the evidence adduced by Ms Kemppi, is irrelevant to any such issue.The evidence Ms Kemppi adduced The evidence Ms Kemppi adduced at the trial essentially fell into three categories. First, there was evidence from a number of Wangan and Jagalingou People who had attended the authorisation meeting on 16 April 2016 and/or an earlier authorisation meeting of the W & J claim group conducted under s 251B of the NTA and held on 21 June 2015. Secondly, there was evidence from a Mr Esposito with respect to an analysis he had undertaken of the attendees at the two meetings mentioned above and another authorisation meeting of the W & J claim group. Thirdly, there was evidence from a number of Wangan and Jagalingou People concerning the criteria for membership of the Wangan and Jagalingou People. In summary, the first category of evidence described above followed two themes. The first was that a large number of people had attended the authorisation meeting on 16 April 2016 that, according to those witnesses, had not attended any earlier W & J claim group meeting or any related meetings. The second theme was that, according to those witnesses, there was no checking of the people who had attended the 16 April 2016 authorisation meeting to determine whether or not they were members of the W & J claim group. The witnesses who attended both meetings included Mr C Dallen, Ms J Broome, Ms C Gyemore and Mr E McEvoy. The witnesses who attended the earlier authorisation meeting on 21 June 2015, but did not attend the authorisation meeting on 16 April 2016, included Ms L Barnard, Ms L Turbane and Mr A Burragubba. The following extracts from the affidavits of these witnesses exemplify the two themes mentioned above:(a)Mr C Dallen7.I attended an authorisation meeting held to approve the Adani ILUA on 16 April 2016. I attended with members of my family. Before entering the meeting, we had to sign a registration sheet. The sheets were arranged on desks forming a long barrier at the entrance to the hall in the order of our ancestors who make up the claim group. I registered with my daughters and son. It was straight forward to register. Neither myself nor any member of my family were asked who we were or to show any form of identification. Nor did anybody check any documents or ask us questions about our family history. I recognised that the registration desks were staffed by Queensland Native Title Services (“QSNTS”). The person attending to our registration just accepted we were who we said we were, no questions asked. We were not even asked to declare that we were Wangan and Jagalingou people …8.There were in my estimation approximately three hundred people in attendance at the meeting. The meeting appeared to be twice the size of any previous meeting of the claim group that I attended.9.Most of the people I had never seen before at a Wangan and Jagalingou meeting. I saw that they were given arm bands to allow them to vote and participate in the meeting. The most obvious example of this is Marshall Saunders who signed the attendance register (see page 8) under my ancestor, “Dan Dunrobin”. Gunggari country is a long way from our country.(b)Ms J Broome4.When I arrived at the meeting, we were made to sign an attendance register under our ancestor. We were not asked to show any I.D . We were not asked to show that we were descendants from Momitja nor whether we identified as Wangan and Jagalingou people. As far as I could see nobody else was asked this either. There were no elders standing near by to vouch that we were Wangan and Jagalingou People. I saw Les Tilly who is the Applicant for the Momitja descent group, he was not standing near the registration desk but in the kitcken (sic) talking to the Adani boys.7.There were a lot of people I did not know at the meeting. I have been to at least five meetings of the Wangan and Jagalingou claim group. I have a pretty good idea of who is in our mob. However, most of the people at the Adani Meeting I had never seen before at a Wangan and Jagalingou meeting. I met the daughter of “Burra” Bone in the toilets at the Adani Meeting. Burra is prominent in the Cherbourg community. I asked her what she was doing at the meeting and she did not answer me directly.(c)Ms C Gyemore8.There were plenty of people at the meeting. It was at least twice as big as any claim group meeting I had previously attended. I have been around a while and I know better than most who should be at our meetings. However, I had no idea who many of the people at the Adani Meeting were. I certainly had never seen them before at any Wangan and Jagalingou meeting.(d)Mr E McEvoy6.When I arrived at the meeting, they made me sign an attendance register. Even though I had pre-registered for the meeting the people sitting at the desks at the entry could not find my name on the attendance register, so it took some time for me to sign in. They asked me who my ancestor was and I told them Lizzie McAvoy. They (sic – I) did not observe them to write this down anywhere or ask me for identification and they did not check with anybody that what I told them was correct.9.The Adani meeting was much larger than any claim group meeting I had previously attended. I thought the meeting of 21 June 2015 was large with an attendance of about 180 people but this meeting was twice as large. I saw several buses pull up full of people from Cherbourg. Many of the people I saw there I had never seen at a Wangan and Jagalingou meeting and had never before claimed to me to be from our country.

Decision

Reasons for decision

The notes in the record document relating to that part of the meeting where a resolution was passed to adopt a decision-making process were as follows:1. Decision-making Process95.Darryl Pearce read the first resolution: Decision-Making Process, from page 3 of the Resolutions document:1. Decision-making processThe persons present and entitled to vote at this meeting comprising the persons who hold or may hold native title to the ILUA Area:(a)confirm that there is no particular process of decision-making under their traditional laws and customs that must be complied with by them when making decisions about authorising the making of an agreement that is intended to be registered as an ILUA and when dealing with matters arising in relation to matters of that kind; and(b)confirm that the decision-making process which will be adopted for this meeting is as follows:(i)the decision to be made will be put in the form of a clearly worded written motion;(ii)the motion will be read out to the meeting;(iii)the motion must be moved and seconded by those present before it is decided on;(iv)a decision in favour of or against the motion will be decided by a majority of a show of hands of those present and entitled to vote on the motion;(v)if there is any doubt about the result of the show of hands, a ballot may be conducted.96.Darryl Pearce asked who would like to move the motion. Edna Malone agreed to move the motion.97.Darryl Pearce asked who would like to second the motion. Theodore Frescon agreed to second the motion.98.Darryl Pearce asked if anyone would like to comment on the move for the motion. No-one sought to.99.Darryl Pearce asked if anyone would like to comment against the move for the motion. No-one sought to.100.Darryl Pearce asked all those who were in favour of the motion to raise their hand with the green armband. Darryl Pearce requested Chris Athanasiou, Philip Hunter and Lara McQuaid to each count the number of persons who had green wrist bands with their arms raised in three allotted sections of the hall which could be delineated by the seating arrangement. This they did. They advised their count which was noted down and tallied by Philip Hunter whilst overseen by Darryl Pearce and Chris Athanasiou.101.Darryl Pearce then asked all those who oppose the motion as read out to raise their hands. There were none.102.Darryl Pearce asked all those who wish to abstain from the motion to raise their hands. There were none.103.Darryl Pearce asked those with the red band who may hold native title to the ILUA Area who are in favour of the motion to raise their arm. Erika Walker, the sole person in this category, raised her hand.104.Darryl Pearce said there were 284 votes for the motion and none against therefore the motion was passed.Result: The notes in the record document relating to that part of the meeting where the resolution was passed to authorise the making of the Adani ILUA were as follows:3. Authorisation of ILUA and Ancillary Agreement116.Darryl Pearce read out Resolution 3, Authorisation of ILUA and Ancillary Agreement from page 5 of the Resolutions document and apologised for the mispronunciation of any names:3. Authorisation of ILUA and Ancillary AgreementThe persons present and entitled to vote at this meeting comprising the persons who hold or may hold native title to the ILUA Area:Authorise(a)the making of an ILUA between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J People, Adani Mining Pty Ltd and the State of Queensland titled ‘Carmichael Project Indigenous Land Use Agreement’ over the lands and waters described in the ILUA as presented to and discussed at this meeting of 16 April 2016; and(b)the making of an Ancillary Agreement between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J People, Adani Mining Pty Ltd as presented to and discussed at this meeting of 16 April 2016.117. Darryl Pearce asked if there was anyone who wished to move the motion.118.A W&J attendee mentioned not all Applicants are present. Darryl Pearce explained that not all Applicants were required to sign the agreements.119. Cindy Button moved the motion.120.Darryl Pearce asked who would like to second the motion. Leisa Sjaardema seconded the motion.121.Darryl Pearce asked if anyone would like to speak for the motion. No-one sought to.122.Darryl Pearce asked if anyone would like to speak against the motion. No-one sought to.123.Darryl Pearce said on the basis that he had asked if anyone wanted to speak on the motion and that no-one had chosen to take the opportunity, that he would take the motion to the floor.124.Darryl Pearce asked that those persons with a green wrist band who are in support of the motion as read out to raise their hands in the air. Chris Athanasiou, Philip Hunter and Lara McQuaid each counted the number of people who had green wrist bands with their arms raised in their allotted sections of the hall. The counters reported their count, which was noted down and tallied by Philip Hunter.125.Darryl Pearce then asked that those persons with a green wrist band who are opposed to the motion to raise their hand in the air. Only one hand was raised at the rear of the hall, which was counted by Chris Athanasiou.126.Darryl Pearce asked that those persons with a green wrist band who wished to abstain from the motion to raise their hand in the air. Chris Athanasiou, Philip Hunter and Lara McQuaid each counted the number of people who had green wrist bands with their arms raised in their allotted sections of the hall. The counters reported their count, which was noted down and tallied by Philip Hunter. Darryl Pearce said that those people who abstained can have their name recorded if they wished. No-one sought to.127.Darryl Pearce asked those with a red band who may hold native title to the ILUA Area who support the motion to raise their arm. Erika Walker, the sole person in this category, raised her hand.128.Darryl Pearce said that as there were 294 votes for the motion, 1 against and 3 abstentions it was carried; resolution passed. He congratulated everyone. There was applause from the meeting.Result:

Ratio Decidendi

Legal Principle Established

For these reasons, I do not consider Ms Kemppi’s unreasonableness ground has any merit.THE RELEVANT CONSIDERATIONS GROUND HAS NO MERITThe pleading on the relevant consideration ground Next, I turn to consider the second of Ms Kemppi’s grounds of challenge to the registration of the Adani ILUA, the relevant considerations ground (see at [4] above). In that ground of challenge, Ms Kemppi claimed that Mr Smith had failed to take account of certain relevant considerations when issuing the Certificate. She identified two such considerations. Together with their particulars, those two considerations were set out at 35A of the FASC as follows:35A.When it made the decision to issue the 203BE Certificate, including both elements (a) and (b) of that certificate as pleaded in [34] of this statement of claim, [QSNTS] failed to consider certain relevant considerations being:(a)the laws and customs of the Wangan and Jagalingou People concerning the criteria by which a person is entitled to Wangan and Jagalingou membership;PARTICULARS(i)[QSNTS] was aware that the Native Title Claim Group was “… made up of families whose members identify as Wangan & Jagalingou, in accordance with traditional laws acknowledged and traditional customs observed by them. … Membership of the native title group must be in accordance with traditional laws acknowledged and traditional customs observed by them”;(ii)The reasons given by [QSNTS] for being of the opinion as certified in the 203BE certificate, in section [2](g) and (h), referred to registration of adult members of the Wangan & Jagalingou People and to 340 adult members of the Wangan & Jagalingou People comprising descendants of 12 of the 14 apical ancestors;(iii)The reasons make no reference to whether the persons allowed to register and participate as members of the Wangan & Jagalingou People identified as such in accord with the traditional laws and customs of the Wangan & Jagalingou People nor whether their claimed membership was in accord with those traditional laws and customs and accepted by acknowledged Wangan & Jagalingou People;(iv)The reasons make no reference, and [QSNTS] did not advert, to the absence in the meeting agenda of, and in the resolutions passed at, the 16 April 2016 authorisation meeting of any process by which the meeting could discuss and rule upon the claims of persons to Wangan & Jagalingou identity, particularly, whether persons who claimed to qualify by reference to descent from an apical ancestor, in fact, also had a history of identifying as a Wangan & Jagalingou people, and were in fact accepted by other members of the Wangan & Jagalingou people as members of the group;(v)The reasons make no reference, and [QSNTS] did not advert, to the absence, in the procedures for registration process for the meeting of requests for identification; of any cross-checking of registrants against the database maintained by [QSNTS]; any questions as to whether the person identified as a member of the Wangan & Jagalingou People; any questions as to whether the person was accepted by the acknowledged body of Wangan & Jagalingou People as a member; any process of questioning whether registrants identified as members of other Indigenous Peoples or whether they were members of any other Native Title Claim Group.(c)the extent to which persons who asserted Wangan and Jagalingou identity but were not entitled to that status voted and participated in deliberations as if they were Wangan and Jagalingou persons at the 16 April 2016 authorisation meeting;PARTICULARS(i)The reasons make no reference, and [QSNTS] did not advert, to the circumstance that the 340-people claiming to be Wangan & Jagalingou people who attended the 16 April 2016 authorisation meeting was many more than had attended previously properly advertised meetings of the members of the Wangan & Jagalingou Native Title Claim Group;(ii)The reasons make no reference, and [QSNTS] did not advert, to the circumstance that many of the people who attended the authorisation claiming to be members of the Wangan & Jagalingou People and took part in the meeting purporting to be members of the Wangan & Jagalingou Native Title Claim Group were people whose information had not previously been recorded in the database of details concerning the identification of Wangan & Jagalingou people referred to in sub-paragraph 34C(f) of this statement of claim;(iii)The reasons make no reference, and [QSNTS] did not advert, to the circumstance that many more people attended the 16 April 2016 authorisation meeting claiming to be members of the Wangan & Jagalingou People and took part in the meeting purporting to be members of the Wangan & Jagalingou Native Title Claim Group than had attended previously properly advertised meetings of the members of the Wangan & Jagalingou Native Title Claim Group;(iv)The reasons make no reference, and [QSNTS] did not advert, to the circumstance that a number of people who attended the authorisation [meeting] claiming to be members of the Wangan & Jagalingou People and took part in the meeting purporting to be members of the Wangan & Jagalingou Native Title Claim Group were people known to [QSNTS] as persons who claimed identity as members of other Native Title Claim Groups and as members of Indigenous Peoples whose identification as members of those other groups and peoples were inconsistent with their identification as members of the Wangan & Jagalingou People and as members of the Native Title Claim Group;(v)The reasons make no reference, and [QSNTS] did not advert, to the circumstance that a number of people who attended the authorisation [meeting] claiming to be members of the Wangan & Jagalingou People and took part in the meeting purporting to be members of the Wangan & Jagalingou Native Title Claim Group were people known to [QSNTS] as persons who were not descendants of the apical ancestors of the Wangan & Jagalingou People and who did not identify as Wangan & Jagalingou People.The principles on relevant considerations