kN (Deceased) and Others on behalf of the Tjiwarl and Tjiwarl#2 Native Title Claim Groups v BHP Billiton Nickel West Pty Ltd & Ors

[2018] HCATrans 123

[2018] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P4 of 2018

B e t w e e n -

KN (DECEASED) AND OTHERS ON BEHALF OF THE TJIWARL AND TJIWARL#2 NATIVE TITLE CLAIM GROUPS

Applicant

and

BHP BILLITON NICKEL WEST PTY LTD

First Respondent

STATE OF WESTERN AUSTRALIA

Second Respondent

SHIRE OF LEONORA

Third Respondent

MARILYN ANNE BERNHARDT AND COLIN LESLIE BERNHARDT (YOUNO DOWNS STATION)

Fourth Respondent

RANGEVIEW ASSET PTY LTD

Fifth Respondent

AGNEW GOLD MINING COMPANY PTY LTD

Sixth Respondent

CAMECO AUSTRALIA PTY LTD

Seventh Respondent

MABROUK MINERALS PTY LTD

Eighth Respondent

MPI NICKEL PTY LTD

Ninth Respondent

TELSTRA CORPORATION LIMITED

Tenth Respondent

TEC DESERT PTY LTD

Eleventh Respondent

TEC DESERT NO 2 PTY LTD

Twelfth Respondent

CENTRAL DESERT NATIVE TITLE SERVICES LTD

Thirteenth Respondent

Application for special leave to appeal

KIEFEL CJ
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 JUNE 2018, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR S.J. WRIGHT, SC:   If the Court pleases, I appear with my learned friend, MR M. O’DELL, for the applicant.  (instructed by Central Desert Native Title Services)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR D.C MORGAN for the first respondent.  (instructed by Ashurst Australia)

MR P.D. QUINLAN, SC:   May it please the Court, I appear with my learned friend, MS C.I. TAGGART, for the State of Western Australia, the second respondent.  (instructed by State Solicitor’s Office (WA))

KIEFEL CJ:   Yes, Mr Wright.

MR WRIGHT: Your Honours, the Full Court of the Federal Court gave section 24MD of the Native Title Act its grammatical or textual meaning. The applicant submits that the Full Court was in error because its construction fails to give all of the subsections of section 24MD a coherent operation.

The scheme of the Native Title Act is that “a future act” is invalid to the extent that it affects native title unless it is validated by one of the provisions in Part 2, Division 3.  That is not a matter of implication arising from the principles in Project Blue Sky; that is something that is expressed in the Act, in section 24OA, and it is confirmed in the overview in 24AA. It is common ground in this case that the relevant validating provision is section 24MD.

If one applies the grammatical meaning to section 24MD(1), that applies because Subdivision M applies, and Subdivision P, the right to negotiate, does not apply. In those circumstances, subsection (1) declares that the future act is valid. That means that when it is granted it will have full force and effect as against native title.

However, subsection (6) also applies where Subdivision M applies and Subdivision P does not apply.  Subsection (6) declares that the consequences in subsections (6A) and (6B) apply.  Those subsections set out steps that must be followed before the relevant “future act” is done.

In our submission, a coherent construction of section 24MD is that subsection (1) applies to declare “a future act” to be of full force and effect against native title when it is done, but only if the mandatory consequences in subsections (6A) and (6B) that apply before the act is done have been satisfied.

If one looks at subsection (6B), which is the relevant issue in this case, in particular subsection (6B) provides, amongst other things, for an independent person to consider an objection, and it contemplates that the independent person may uphold the objection, with the result that, subject to paragraph (g), the future act must not be done.

KIEFEL CJ:   But these are addressed to the consequences of an act falling within particular classes.  The validation provisions relate to acts which fall within, I think, one or two types of classes, relevantly.  How do you use consequential provisions to somehow characterise an act as within or without a class?

MR WRIGHT:   The reference to classes was in the Full Court’s reasons.  The class that they are referring to is an act to which Subdivision M applies, which takes one to section MA or MB.  But an act which falls within a class, if we use that language in MB, also activates subsection (6).  So, in our submission, one cannot just simply start and finish with subsection (1) without also applying the same class analysis, if you like, to subsection (6), which then says the consequences in (6A) and (6B) apply.

EDELMAN J:   You have to really read subsection (6) as being preconditions rather than consequences, do you not?

MR WRIGHT:   Yes, that is right, your Honour.

EDELMAN J:   And you then have to read the preconditions as being preconditions such that the act is no act at all for the purposes of 24MD(1).

MR WRIGHT:   Yes, that is correct, yes.  Subsection (1), in our submission, addresses, in a temporal way, when the act is done it will have full force and effect as against native title.  Subsections (6A) and (6B) in particular are very express in their terms.  They are addressing what must be done before the act is done.

One can give a coherent operation to the two subsections because they are addressing, in their terms, things that happen at different times.  As your Honour has said, subsection (6B) is effectively a precondition before one gets to activate subsection (1).

KIEFEL CJ:   How do you factor in section 24AA(4)(j)?

MR WRIGHT: Your Honour, that is an overview section that uses the word “covered”. In our submission, the word “covered” does not have any particular meaning. What it says is covered is an act in section 24MD. It does not say section 24MD(1). It refers to the entirety of section 24MD. An act that is covered within the meaning of paragraph (j) by section 24MD picks up the consequences in subsection (6), which then apply the consequences in (6B).

In our submission, the Full Court was wrong to place particular emphasis on that word “covered” when it equally picks up subsection (6B) as much as it picks up subsection (1).

KIEFEL CJ: The more direct point in relation to section 24MD(1) is that it is simply not expressed to be conditioned to procedural requirements. It is expressed to be conditioned only to Subdivision B.

MR WRIGHT:   That is correct, your Honour. 

KIEFEL CJ:   That is your greatest difficulty, is it not?

MR WRIGHT:   It is.  That comes back to whether one is to give this a purely textual or grammatical meaning.

KIEFEL CJ:   Yes.

MR WRIGHT:   The reference to “subject to Subdivision P”, in our submission, is necessary because Subdivision P applies to certain future acts to which this division applies, and those procedures in Subdivision P, by its very nature sit in a separate subdivision.  But for the words “subject to Subdivision P”, the reader’s attention would not be drawn to the fact that an entirely different subdivision contains additional procedures that could result in the future act being invalid. 

But when one comes to the other subsections of section 24MD itself, one would apply the ordinary principle of statutory construction, that one ought to read the section in its entirety. One can start with the assumption that Parliament intended subsection (6), and therefore (6A) and (6B), would be read together with subsection (1). Otherwise, the wording in subsection (1) would need to say not just “subject to Subdivision P” but “subject to subsection (6)”.

But, of course, subsection (2), for example, also qualifies or conditions the effect of “a future act”.  Subsection (2) does not seem to be in dispute, but subsection (2) does operate, or can operate, in the context of a compulsory acquisition of native title to result in the compulsory acquisition not being valid in the sense of having full force and effect because if the procedures in subsection (2) are not followed then the result is that one defaults back to subsection (3) where the non‑extinguishment principle applies.

So one cannot give a literal reading to subsection (1) as saying a compulsory acquisition that does not satisfy subsection (2) is valid and therefore has full force and effect.  It seems to be accepted by the courts below that one already has to read subsection (1) as inherently being qualified by subsections (2) and (3).  In our submission, there is no reason why it ought not to also be qualified by subsections (6A) and (6B).  So as I said, your Honour, otherwise the drafting of the section would start with “subject to all of the subsections of this section”, and that is simply unnecessary wording.

NETTLE J:   Is that your answer to 25(4)?

MR WRIGHT:   Well, 25(4) sits in Subdivision P.

NETTLE J:  It sits in P and says if you do not comply with P then it is invalid. Section 24MD does not say if you do not comply with (6A) and (6B) it is invalid in the same way.

MR WRIGHT:   No, it does not, your Honour, but I have already addressed why, in our submission, the reference to “subject to Subdivision P” - in 25, Subdivision P - is necessary because it is taking the reader to a separate subdivision of the scheme.

NETTLE J:  Of course, so in a case to which Subdivision P does not apply, which is this case, clarity of logic would suggest that one would find a provision similar to 25(4) in section 24MD providing that failure to comply with (6A) and (6B) affects validity, would one not?

MR WRIGHT:   Your Honour, in our submission, it is clearly not there and in our submission one would not expect to find it if one is applying the principle of statutory construction that all of the subsections are to be read together.

KIEFEL CJ:   But does section 25(4) suggest that the procedures in Subdivision P are comprehensive as to invalidity?

MR WRIGHT:   They are comprehensive in relation to acts to which Subdivision P applies.  So if one is dealing, as we are here, with an Act which Subdivision P does not apply to then, in our submission, section 25 really has nothing to do with it.  It is explaining or overviewing what Subdivision P does.

NETTLE J:   It has nothing to do with it directly.  It has to do with it indirectly in that it appears where Parliament intends to affect validity it expressly says so and presumably where it does not intend to affect validity it does not say so.

MR WRIGHT:   Your Honour, that is certainly a hurdle that we have to overcome.

KIEFEL CJ:   That was the view taken in Lardil, was it not?

MR WRIGHT:   It was the view taken in Lardil but, your Honour, the issue in Lardil was a slightly different issue because in Lardil the application was by a registered native title claimant for an injunction and declaration that a future act in Subdivision H was invalid because the procedural requirements had not been applied.  So effectively the applicant in that case sought to apply a Project Blue Sky type analysis to say that the Act was inherently invalid whether native title existed or not.

What the primary judge in this case has carefully done, in our respectful submission, is distinguish Lardil because the issue here is not whether subsection (6B) has some freestanding operation; the question is whether it preconditions section 24MD(1). That is how her Honour approaches it and, in our respectful submission, that is the correct way to approach it.

So the difficulty in Lardil does not arise and the Full Court here, in our respectful submission, did not understand this correctly because the Full Court applied the same criticism here as they applied in Lardil – that is to say Parliament cannot have intended that what may turn out to be an unmeritorious claim could result in a future act being invalid, but applying this analysis it would only be invalid if native title exists.

So if a registered claimant was not given procedural rights, the question of whether the future act is valid or invalid can only be determined, as her Honour said below, once you have determined the native title claim and it is only invalid to the extent that native title exists.  It is not Project Blue Sky invalidity in the sense that it is invalid for all purposes.  So the issue we are addressing here is how (6B) qualifies the declaration of validity in subsection (1).

Your Honours, I have already referred to subsection (6B) and perhaps picking up on this question there is an obvious textual issue in subsection (1).  Equally, when one turns to subsection (6B), as I have already said, that contemplates that there may be an objection heard by an independent person and that independent person cannot hold the objection such that the future act must not be done.

In our respectful submission, it is difficult to see why Parliament would have intended that the parties could go through that entire process, have an independent person direct that the future act must not be done, but then if a government goes ahead and does it the Act would nonetheless be valid. 

So the literal or textual considerations in subsection (1) in our respectful submission have to be put against the textual considerations in subsection (6B) and then the two have to be given a coherent reading together, and there is a coherent reading which is that subsection (1)’s operation only kicks in when subsection (6B) has been satisfied.

Another issue, your Honours, that the Full Court considered – the case that we raised below, which was the decision of this Court in Forrest & Forrest v Wilson and the Full Court referred to passages from Forrest & Forrest v Wilson but in the context they cited passages that applied the Project Blue Sky analysis.  In our submission, what the Full Court did not engage with was the principle of statutory construction, which was dealt with at paragraphs 63 to 65 of Forrest.  That is a principle of statutory construction that:

where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance -

Now, in this case, we say, with respect, that same principle of statutory construction ought to be applied in the context of this piece of legislation, which we acknowledge is not the legislation under which the grant is made – the grant is made under the Mining Act, which is State legislation – but the purpose and object of the Native Title Act (Cth) is to impose additional procedures on State Governments in the exercise of their powers to grant interests in land and those additional powers are there to protect native title and to give native title holders the same rights that a freeholder would have.

So, in our submission, that same presumption ought to have been applied here, which is a presumption of strict compliance with the procedures, not only under the Mining Act but strict compliance with the procedures under the Native Title Act including subsection (6B).

Your Honours, this matter is a matter of particular importance because subsection (6B) applies not just to grants of rights to mine for the

sole purpose of infrastructure but it also applies to compulsory acquisitions and again it is difficult, applying ordinary principles of statutory construction, a presumption should be applied that Parliament would not have intended governments to be able to compulsorily acquire interests in land without following the procedures that are mandated in the Act.

The issue has arisen in two previous cases, as well as this case, and it is therefore an issue that is of particular significance, particularly given the observation of the Full Court where their Honours said there was some force in the observation of the primary judge that the possible remedies of injunction and declaration to restrain a future act which has not been the subject of the required notification and consultation under (6A) are wholly unsatisfactory.

In those circumstances, if the decision of the Full Court stands, then governments can proceed to grant interests, including to compulsorily acquire native title, without having regard to those mandatory requirements in subsection (6B).

EDELMAN J:   Mr Wright, can I ask you about page 599 of the book, at 24HA(7), would your argument apply in exactly the same way to that provision?

MR WRIGHT:   Your Honour, that was the subject of the obiter dicta in Lardil and, in our submission, each subdivision will need to be addressed on its merits.  So it does not necessarily follow that the same conclusion would apply.  Subdivision M has particular language in it which, in our submission, supports the construction that we are proposing, including ‑ ‑ ‑

EDELMAN J:   Although 24HA(7) is, on one view, even more emphatic in its language.

MR WRIGHT:   It is, but the nature of what it provides for is a notification, including an ability to notify a class of acts and the explanatory memorandum expressly says that it is not intended to affect validity.  So there are particular considerations that apply in relation to Subdivision H, but that is to be contrasted with the far more elaborate and extensive scheme in subsection (6B) which, as I have said before, is not just notification but allows for an independent person to determine that the act must not be done.  Thank you, your Honours.

KIEFEL CJ:   The Court will not need to call upon the respondents.

The Court is of the view that there is no reason to doubt the correctness of the conclusion reached by the Full Court.  Special leave is refused with costs.

MR WRIGHT:   Your Honour, I note that BHP did not seek costs in relation to this matter.

KIEFEL CJ:   I am sorry.  Was it just Western Australia who sought costs?  The costs order will therefore be limited to Western Australia, thank you.

AT 9.50 AM THE MATTER WAS CONCLUDED