Ngan Aak-Kunch Aboriginal Corporation RNTBC v Glencore Bauxite Resources Pty Ltd (No 2)
[2017] FCA 646
•7 June 2017
FEDERAL COURT OF AUSTRALIA
Ngan Aak-Kunch Aboriginal Corporation RNTBC v Glencore Bauxite Resources Pty Ltd (No 2) [2017] FCA 646
File number: QUD 513 of 2016 Judge: REEVES J Date of judgment: 7 June 2017 Catchwords: COSTS – application for costs – whether there should be a departure from the rule that costs ordinarily follow the event – whether there are special circumstances to warrant any different order – whether “the spirit of” s 85A of the Native Title Act 1993 (Cth) affected the Court’s discretion to award costs
Held: application granted
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Mineral Resources Act 1989 (Qld)
Native Title Act 1993 (Cth)
Cases cited: Burragubba v State of Queensland (2015) 236 FCR 160; [2015] FCA 1163
Burragubba v State of Queensland [2016] FCA 1525
Murray v Registrar of the Native Title Tribunal [2003] FCA 45
Ngan Aak-Kunch Aboriginal Corporation RNTBC v Glencore Bauxite Resources Pty Ltd [2017] FCA 265
Date of hearing: Determined on the papers Date of last submissions: 31 March 2017 (Applicant)
5 April 2017 (Second Respondent)
The First Respondent did not provide submissionsRegistry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 5 Solicitor for the Applicant: Cape York Land Council Aboriginal Corporation Counsel for the First Respondent: The First Respondent did not provide submissions Solicitor for the Second Respondent: Mr T Keyes of Crown Law Counsel for the Third Respondent: The Third Respondent filed a submitting notice ORDERS
QUD 513 of 2016 BETWEEN: NGAN AAK-KUNCH ABORIGINAL CORPORATION RNTBC (ICN 4097)
Applicant
AND: GLENCORE BAUXITE RESOURCES PTY LTD (ACN 603 233 272)
First Respondent
STATE OF QUEENSLAND
Second Respondent
NATIONAL NATIVE TITLE TRIBUNAL
Third Respondent
JUDGE:
REEVES J
DATE OF ORDER:
7 JUNE 2017
THE COURT ORDERS THAT:
1.Ngan Aak-Kunch Aboriginal Corporation RNTBC pay the second respondent’s costs of and incidental to this proceeding to be taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
When Ngan Aak-Kunch Aboriginal Corporation RNTBC’s (Ngan Aak-Kunch) originating application was dismissed ([2017] FCA 265 (Ngan No 1)), I ordered the parties to file any submissions they wished to on the question of costs. Glencore Bauxite Resources Pty Ltd, the first respondent, subsequently informed the Court that it did not wish to seek an order for costs and therefore would not be filing any submissions. However, the State of Queensland, the second respondent, did file submissions in which it sought an order that Ngan Aak-Kunch pay its costs of and incidental to this proceeding.
In support of that application, the State submitted that Ngan Aak-Kunch had been wholly unsuccessful in the proceeding and the usual rule should apply that costs should follow that event. It submitted that there were no special circumstances to warrant any different order. In particular, it submitted that it is well-established in this Court that proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) are not proceedings to which s 85A of the Native Title Act 1993 (Cth) (the NTA) applies. Furthermore, it submitted that there was no reason to apply the “spirit” of that section in exercising the discretion to award costs in this matter. In this regard, it submitted that Ngan Aak-Kunch’s application did not raise any issue of public importance about the construction of s 237 of the NTA and nor were there any other special circumstances that would justify a departure from the usual rule.
Ngan Aak-Kunch opposed the State’s application for costs. It submitted that the “spirit” of s 85A of the NTA should apply in this matter, relying in particular on the decision of Marshall J in Murray v Registrar of the Native Title Tribunal [2003] FCA 45 (Murray) at [7]–[9]. It submitted that its application raised a “key question” about whether the variation of conditions of a mineral development licence under the Mineral Resources Act 1989 (Qld) attracted the “right to negotiate” process in Part 2, Division 3, Subdivision P of the NTA. It submitted that the Court’s failure to accept its contentions on this question did not detract from its claims that its application raised a matter of construction of the NTA.
I reject Ngan Aak-Kunch’s contention that its application raised a key question concerning the construction of the NTA. As I observed in Ngan No 1 (at [34]): “having determined, as a matter of fact, that any … variation [to the conditions of the proposed licence] was highly unlikely to occur, it was entirely unnecessary” for the Tribunal to “determine, the question whether, if the State did attempt to vary the conditions of the proposed licence, such a variation would engage the right to negotiate process under Subdivision P”. I do not therefore consider that there is any basis for applying the “spirit” of s 85A of the NTA in this matter. Even if there were some reason to adopt that approach, as Edelman J observed in Burragubba v State of Queensland (2015) 236 FCR 160; [2015] FCA 1163 at [27] and [30], with which I agreed in Burragubba v State of Queensland [2016] FCA 1525 at [7]–[9], it has only been applied in limited circumstances involving questions of construction of the NTA and it does not extend to apply to every such issue of construction, no matter how tenuous it is. As to the decision of Murray, which was relied upon by Ngan Aak-Kunch, I consider it is distinguishable because it related to proceedings where the “scope and meaning of s 24CD of the [NTA], amongst other matters” was being considered for the first time: see Murray at [8].
For these reasons, I consider the State is entitled to an order that Ngan Aak-Kunch pay its costs of and incidental to this proceeding. Accordingly, I will order that:
1.Ngan Aak-Kunch Aboriginal Corporation RNTBC pay the second respondent’s costs of and incidental to this proceeding to be taxed or agreed.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 7 June 2017
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