Peko-Wallsend Ltd v The Honourabe B. Cohen, Minister for Arts

CATCHWORDS

Administrative Law (Natural Justice)

- Mining companies holding

mining rights in part

of Kakadu National Park - decision by

Executive to submit Stage

2 of park for listing pursuant to World

Heritage Properties Conservation Act 1983, ss.3, 6, 7. 8 and 10

without giving applicants opportunity to

be heard.

Administrative Law (Jurisdiction) - whether judicial review

available in respect of a decision made under a statute

but in

the context of

an international convention.

Injunctions - Interim injunction - test to be applied.

PEKO-WALLSEND LIMITED & ORS. (Applicants), THE HONOURABLE BARRY respondent), THE HONOURABLE LIONEL F. BOWEN, ATTORNEY-GENERAL OF

COMMONWEALTH OF AUSTRALIA (Third respondent). -	THE COMMONWEALTH OF AUSTRALIA (Second respondent) AND THE
No. NTG 9 of 1986
Beaumont J. Sydney
26 November 1986

I N THE

FEDERAL

COURT

O F

AUSTRALIA

)

NORTHERN	TERRITORY DISTRICT REGISTRY	j	No. NTG 9 of 1986
1

GENERAL

D I V I S I O N

)

A p p l i c a n t s

AND :

THE HONOURABLE

BARRY

COHEN

MINISTER

FOR

ARTS,

HERITAGE

AND

ENVIRONMENT

First respondent

AND :

THE HONOURABLE LIONEL F. BOWEN.

ATTORNEY-GENERAL

O F THE COMMONWEALTH

AUSTRALIA

Second respondent

THE COMMONWEALTH O F AUSTRALIA

Third respondent

Judge

m a k i n g orders:

B e a u m o n t J.

Date orders made

: 24 November 1986

W h e r e made

Sydney

SHORT

MINUTES

ORDERS

Upon

t h e appl icants g i v i n g the

u s u a l

u n d e r t a k i n g

a s

t o damages:

O r d e r t h a t

t he

r e s p o n d e n t s

f o r t h w i t h

i n f o r m

t h e

2 .

World Heritage Committee ( "the Committee") referred

the

World Heritage Properties Conservation

- Act 1983 ("the Act"), in respect of the application

on behalf of the Commonwealth of Australia that the

area of approximately 7.000 square kms. known as

the Stage I1 extension of the Kakadu National Park

("the Stage 11 extension") be placed upon the World

Heritage

List

provided

the

Convention

referred to in the Act ("the listing"), the Federal Court of Australia has directed the respondents to inform the Committee of the following:

(a) that the

applicants claim

to be entitled to

certain mining rlghts over an area of approximately 65 square kms. situated within the boundaries of the Stage I1 extension,

which

area

is described

the

schedule

hereto:

(b) that the

applicants have recently commenced

proceedings in the Federal Court of A'ustralia seeking to restrain the consent of the

Commonwealth of Australia to the

listing and

to require that consent to be withdrawn:

(c) that the proceedings have been flxed

for a

final hearing to commence on 8 December 1986;

r .

3 .

(d) that

it is

anticipated that the

proceedings

will conclude on

12 December 1986 and that the

judgment

of the

Court will be given shortly

thereafter:

(e) that, with a view to

preserving the status quo

until judgment in the proceedings in respect only of the area described in the schedule (and not otherwise), the Federal Court of

Australia

has

directed

the

respondents to

request the World Heritage Committee to defer, until further notice, its conslderation of so much of the application for the listing as

includes the area described

in the schedule.

2. Reserve general liberty to apply on such notice, if

any, as a judge of the Court may

allow.

3. Reserve costs.

r .

IN THE FEDERAL COURT OF AUSTRALIA	)
1

NORTHERN TERRITORY DISTRICT REGISTRY)

No. NTG 9 of 1986

DIVISION

GENERAL

)

BETWEEN:

PEKO-WALLSEND LIMITED

PEKO EXPLORATION LIMITED

PEKO-WALLSEND OPERATIONS LIMITED

ELECTROLYTIC ZINC CO. OF AUSTRALASIA

LIMITED

Applicants

-	AND :	THE HONOURABLE BARRY COHEN
FOR ARTS, HERITAGE AND ENVIRONMENT

MINISTER

First respondent

THE HONOURABLE LIONEL F. BOWEN,

AND :

ATTORNEY-GENERAL OF THE COMMONWEALTH

OF AUSTRALIA

Second respondent

THE COMMONWEALTH OF AUSTRALIA

Third respondent

CORAM : BEAUMONT J.

DATED : 26 November 1986

REASONS FOR JUDGMENT

(on application for interlocutory relief)

Before the Court is a notice of motion by the applicants

for interlocutory relief.

There is no dispute about the facts

for

present

2 .

purposes. For many years, the applicants have held mineral

leases

and

mineral

lease

applications

under

the

mining

legislation in force in the Northern Territory over areas of the

Territory including the Alligator Rivers region

of the Territory:

in particular, the applicants hold 14 mineral leases and 397

mineral lease applications having a total area of approximately

65 square kms. in the region known as the Munmarlary project

area. In a news release published on 5 February 1978, the then Minister for Environment, Housing and Community Development, Mr. Ray Groom, said that:

"...the

Government had made it clear that the

whole of the area in the Alligator Rivers Region recommended by the Ranger Uranium Environmental Inquiry is to become a National Park, with the Stage 1 area to be proclaimed as soon as the

necessary

legislation

passed

the

Parliament.

The plan for the Stage 2 area will cover land use, conservation, and protection of Aboriginal interests in sufficient detail to enable the

four

controlling

Departments

-- Environment,

Housing and Community Development:

Aboriginal

Affairs; Northern Territory: and Trade and

Resources -- to prepare environmental conditions

for exploration.

As	announced by the Government in the Uranium

Statements of August last year, the Stage

2 area

the Park

will

proclaimed

under

t-he

National Parks and Wildlife Conservation Act as soon as the mineral resources of the area have been reasonably identified..."

On 23 June 1978, the Commonwealth of Australia gave

notice of the compulsory acquisition of two parcels of land the subject of pastoral leases 739 and 737 known as Mudginberri and Munmarlary Pastoral leases contalning areas of approximately 427

3 .

square miles and 390 square miles respectively. In the notice of

acquisition, it was declared that the

land was acquired:

"for the following public purposes

approved by

the Governwr-+eneral:

h e establishment, in

relation to the Northern

Territory, of a park or

parks pursuant to the National Parks and Wildlife Conservation Act 1975, as amended and,

as to part of the land, the development of

uranium mining in the Northern

Territory."

On 29 June 1978, the Commonwealth gave notice under

S. 70(2) of the Northern Territory (Self-Government) Act 1978 of

the acquisition of the fee simple in land then known as the

Alligator Rivers Stage

2 region for the purpose

of a "National

Park".

The land was in two parcels - an area of approximately

162,090 hectares and an area

of 19,857 square kms.

On 5 April 1979, by a Proclamation made pursuant to

s.7(2) of the National Parks

and Wildlife Conservation Act 1975,

the Governor-General declared an area of approximately 5,700

square lons.

to be a park, assigned

to the park the name "Kakadu

National Park" and specified the depth of 1,OOO metres below the surface of any land within the area so declared to be a park as the depth below that surface to which sub-soil beneath that land

shall be taken to be within the

park.

In 1980 and 1981, Toohey

J.,

as the Aboriginal Land Commissioner, heard an application by

the Northern Land Council under the Aboriginal Land Rights

(Northern Territory) Act	1976.	In his report,	presented on 2
July 1981, Toohey J. said:

"307. In Commonwealth

oY Australia Gazette

No.

S116 of 29

June

1978 (Exhibit 3). the

Commonwealth

gave

notice

under the

Northern

Territory (Self-Government) Act 1978 that the Governor-General had authorised the acquisition of the fee simple interest in land (including the land within Mudginberri and Munmarlary) for the purpose of national a park. That

authorisation under s.70(2) of

the

Self-Government Act may not have effected an

actual

acquisition;

however,

retrospective

legislation,

Northern

Tekritory

the

(Commonwealth Lands) Act 1980. operated to give the notice of 29 June 1978 the full effect Of

~~~~

~~~~~

~~~~~~

vesting the land in the Commonwealth

pursuant to

s.70(4) of the Self-Government Act. Vesting is subject to s.70(6) of the Self-Government Act,

which reads

'Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory

immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same

terms and conditions as those	on which they
were held from the Territory.'

By the combined operation of

ss.69 and 70 of the

Self-Government

Act,

the

Northern

Territory

(Commonwealth

Lands)

Act

and the relevant

gazettals,

the

Commonwealth

now

holds

the

freehold interest in the land formerly known as Mudginberri and Munmarlary pastoral leases, save

for any interests preserved by

s.70(6).

308. m e question, then, is whether the mining

leases and mining lease applications

approved by

the Mining Warden before the acquisition of the

leasehold property and subsequent acquisition of

freehold

interest

are

'interests' for the

purposes of s.70(6). 'Interest' is defined in 6.56 of the Self-Government Act to include 'any right, title, estate, power, privilege, claim, demand, charge, lien or encumbrance, whether, at law or in equity'. Although 8.145 of the Mining

Act provides that

'every mining tenement...shall

be deemed and taken in law to be a chattel interest', it is the definition of 'interest' in

the

Self-Government Act that is at issue here

(Commonwealth v. Maddalozeo (1980) 29 ALR 161 at p.168, also Adamson v. Hayes (1972-1978) 130 CLR 276). There can be no doubt that a mineral lease falls within the definition. An applicant for a mineral lease may take possesslon of and

5 .

hold the land applied for pending determination

of the

application

(8.62).

Entry by

unauthorised person is a trespass, the applicant

having the right to recover damages ( 6 . 6 3 ) . The

granting of a mineral lease is in the absolute

discretion of the Minister (8.70) but a lessee

or	applicant may, with approval, deal with the

lease or application (13.75). There is a register of leases and applications (8.76). In

my view, the rights conferred on the holder of an application for a mineral lease meet the definition of 'interest' in the Self Government Act: hence, the applications are, by force of

s.70(6), held from the Commonwealth.

This view

cannot

bind

the interested

parties or the

courts:

I express it to pave the way for

consideration of detriment."

Toohey J. then dealt with the mining

of uranium as follows:

"309. Whereas leases

to mine

for uranium were

granted

by the Administrator under the Mining

Ordinance

(s.47A:

see also s.41(4) of the

Atomic

Energy

Act

19531,

the

effect

self-government was to vary the responsibility

for the executive administration	of the Mining
Act (s.35).

By Reg.4 of the Northern Territor

(Self-Government) Regulations, a minister of th: mining and minerals but not for the mining of

uranium

or other prescribed substances within

the meaning of the Atomic Energy Act

1953

Under s.7A of the Mining Act (inserted by Act

NO. 3 of 1979) the Northern Territory minister

can only exercise his powers under that Act in relation to prescribed substances in accordance with the advice of the Commonwealth Minister

responsible for the administration of the Atomic mining titles for the exploration and mining of

Energy Act. Consequently,the Northern Territary

uranium, must

have

the

concurrence

the

Federal Minister to specific grants

of title.

The fact that the mineral leases and applications for leases under discussion lie on Commonwealth land would not, it seems, alter

their leasehold

status.

. .

On 30 October 1981, Stage 1 of Kakadu National Park, as

proclaimed

April 1979, was included on the World Heritage

List

established

the

World Heritage

Committee

("the

Committee") pursuant to the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention") adopted by the UNESCO General Conference on 16 November 1972. The

Convention came into

force on 7 December 1975 and was ratified by

Australia in August

1974.

As at December 1985, the Convention

has been ratified or acceded to by 89 countries. (See generally

Commonwealth of Australia v. State of Tasmania (1983) 46 A.L.R.

625 . )

In inscribing Kakadu National Park

in October 1981, the

Committee observed:

"The

Committee

noted

that

the Australian

Government intended to proclaim additional areas in the Alligator Rivers Region as part of Kakadu National Park and recommended that such areas be

inscribed on the World Heritage List

and that in

the Region the environmental protection measures

specified in the relevant legislation continue

to be enforced."

It is common ground that the additional areas referred to include the area known as Stage 2 of Kakadu National Park and that the relevant legislation is the National Parks and Wildlife

Conservation Act.

In a news release dated 19 November 1983, the

first

respondent,

referring

to the

above

comments

the

Committee, said :

"Consultations are expected to start soon with

the relevant

Federal

and

Northern

Territory

authorities

with

the

view

proposing

the

inclusion of Stage Two in the World Heritage

List. Stage Two includes wetlands

of major

international significance, mangroves that are

of great scientific interest, extenslve

archaeological sites and places of considerable

recreational importance."

On 28 February 1984, the area known

as Stage 2 of Kakadu

National Park, comprising a further 7,000 square kms., including the Munmarlary project area, was declared by Proclamation a park under the National Parks and Wildlife Conservation Act. In a news release dated 29 February 1984, the first respondent said:

"Proclamation

will

enable

Stage

considered by the Government for nomination for

the World Heritage List as an extension to

Kakadu National Park as already

listed."

On 17 September 1986, in circumstances to be elaborated later, Australia submitted the area known as Kakadu Stage 2

the Committee for inclusion on the World Heritage

list. The

consideration of Australia's request

is on the agenda

for the

meeting of the Committee scheduled to be held in Paris on 24-28

November 1986.

The meeting will conclude on or prior to 28

November 1986

and

will not reconvene for the

purpose of

considering listings for approximately 12

months.

Mention should be made of the relevant provisions

of the

Convention. Each State Party recognizes that the duty

ensuring

identification,

the

protection,

conservation,

presentation

and

transmission

to future

generattons

the

cultural and natural heritage referred

to in Articles 1

and 2 and

situated on its territory, belongs primarily to that

State. It

will do all it can to this

end (Art.4).

To ensure that effective

and active measures are taken

for the protection, conservation

and presentation of the cultural and natural heritage situated

its territory, each State Party shall endeavour

to take the

8 .

appropriate

legal,

scientific,

technical,

administrative

and

financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of thls heritage

(Art.S(d)).

Whilst fully respecting the sovereignty of the

States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice

to property rights provided

by national legislation, the States

Parties recognize that such heritage constitutes

a world heritage

for whose

protection it is the

duty of

the international

community as a whole

to co-operate (Art.6).

The Committee may

at any time invite public

or private organizations or individuals

to participate in its meetings	for consultation on particular
problems (Art.10.2).

Article 11 provides:

"1.

Every State Party...shall,

in so far as

possible, submit to the...Committee

an inventory

of property forming part of the cultural and

natural heritage, situated in its territory and

suitable for inclusion in the list provided for

in paragraph 2 of this Article. This inventory,

which shall not be considered exhaustive, shall

include documentation about the location of the

property in question

and its significance.

On the basis of the

inventories submitted by

States

accordance

with

paragraph

1, the

Committee shall establish, keep up to date

and

publish, under the title of 'World Heritage List', a list of properties forming part of the

cultural

heritage

and

natural

heritage,

defined in Articles 1 and 2 of this Convention,

which it considers

having

outstanding

universal value in terms of such criteria as it shall have established. An updated list shall be distributed at least every two years.

3. The inclusion of a property in the World

9 .

Heritage List requires the consent of the State concerned. The inclusion of a property situated in a territory, sovereignty or jurisdiction over

which is claimed by more than one State shall

no way

prejudice the rights of the parties to

the dispute. . .

The Convention is referred to in the World Heritage

Properties Conservation Act 1983,some of the provisions of which were held invalid in the Franklin Dams Case. For present

purposen, the

World

Heritage

Properties

Conservation

Act

relevantly provides as follows.

A Proclamation may be made under

s.6(3)

in relation to "identified property" that is

not in any

State (s.6(1)).

A reference in the Act to "identified property"

shall be read as a reference

to:

"(a) property

forming

part of

the

cultural

heritage

natural

heritage,

being

property that -

(i)

the

Commonwealth

has,

under

Article

of the

Convention,

submitted to the World Heritage the commencement of this Act. as

suitable for

inclusion

the

World Heritage

List provided for

in paragraph 2 of that Article:

(ii)

has

been

declared

the

regulations to form part of the

heritage: or

cultural heritage or natural -

(b)

any

part

property

referred

paragraph (a)"

(s.3(2)).

Where the Governor-General

is satified that any property

in respect of which a Proclamation may be made under S .6(	3) is
being or is likely to be damaged or destroyed, he may, by

Proclamation. declare that property to

be property to whlch s.9

10.

applies (s.6(3)).

Except with the consent in writing of the

Minister, it is unlawful for a person, if an

act is prescribed

for the purposes of this paragraph

in relation to particular

property to which this section applies, to

that act in

relation to that

property

(s.9(l)(h)).

Where

the

Governor-General is satisfied that any identified property

being or

is likely to be damaged

or destroyed, he may, by

Proclamation, declare that property to be property to which s.10

applies

( 8 . 7 ) .

It is unlawful for, inter alios,

trading

corporation to carry out mining operations on any property	to
which 8.10 applies (8.10).

On 8 September 1986, Senator the Hon. Gareth Evans Q.C., Minister for Resources and Energy, wrote to the first applicant as follows:

11.

SENATOR THE HON

CARETH

EVANS

0 C

Mr G.H. Sherrington

Manager - Special Projects

Geopeko

PO Box 217

CORDON

NSW

2072

Dear Mr Sherrington,

I refer to your letter of 15 May 1986 and enclosures concernlng

mineral activity in the Kakadu Region.

I am conscious of the concern in the mlnlng

industry over

proposals for future land use in the Kakadu Reglon

lncluaing

the new Plan

of Management for Kakadu National Park.

My Department has provided comments

on the proposed Plan to the

Director, National Parks and Wildlife which seek inclusion In

the Plan of provisions for operations for the

recovery of

minerals similar to those in the first Plan. Such an approach

is necessary to give

effect to the Plan's

key management

objective of developing an inventory

of all renewable and

non renewable resources in the Park.

You can be assured

that I am following this issue

carefully

with the long term

objective of establishing a multlple land

use policy for the Region which balances the interests

of the

mining industry with those	of other land users.
GARETH EVANS

1 2 .

On 16 September 1986, the first respondent wrote to the

Hon.

E a r r y

C o u l t e r ,

M.L.A..

M i n i s t e r

for

Mines

and

Energy

i n

the

Nor thern Ter r i to ry Government

follows:

y h a n k y o u f o r

your

letter

16 June 1986 concern ing

the

s t a t u s

the

fo rmer Stage 2 , Kakadu

N a t i o n a l Pa rk .

I n accepting

the recommendat ion

the Ranger

Uranium

E n v i r o n m e n t a l I n q u i r y

that

major

n a t i o n a l

park

e s t a b l i s h e d

i n t h e A l l i g a t o r

Rivers

Region,

t he p r e v i o u s Commonwealth

Governmen t accep ted t ha t

would

need

t o

b e p r o c l a i m e d i n

stages.

Stage 1 of

Kakadu N a t l o n a l P a r k w a s proclaimed on 5

A p r i l

1 9 7 9 .

When

t h e present

Government

moved

t o proclam S t a g e

2 ,

t e c h n i c a l legal reasons r e q u i r e d that

it be proclaimed

as a

separate

n a t i o n a l p a r k r a t h e r t h a n b e i n c o r p o r a t e d i n

t h e

e x i s t i n g p a r k ,

h a d

b e e n

t h e

i n t e n t l o n

a l l

a long .

Consequent

Kakadu	(Stage 2 ) N a t i o n a l	P a r k was	proclaimed	on	28	February
1 9 8 4 .

Subsequent

amendments

t o the

N a t i o n a l

P a r k s a n d

Wildlife

C o n s e r v a t i o n A c t ,

which received

Royal Assent

on 2

September

1 9 8 5 ,

e n a b l e d S t a g e

t o

b e i n c o r p o r a t e d i n t o

Kakadu

N a t i o n a l

Pa rk .

The

necessa

p roc lama t ion

w a s

g a z e t t e d

o n

20 December

1985.

There

w a s

n o a d d i t i o n t o

t h e

t o t a l

area

o f n a t l o n a l p a r k ,

nor

any

c h a n g e i n

s t a t u s of

any

t h e l a n d i n v o l v e d .

Amalgamation

t h e t w o areas

simply

p r o v i d e d a d m i n l s t r a t l v e

advantages,

a l l o w i n g

the

whole

p a r k

t o be

o p e r a t e d u n d e r t h e

name .Kakadu Nat ional Park' and under

one

p l an of

management.

T h i s

achieves

t h e

Government ' s

long

term

i n t e n t i o n for t h e

areas

c o n c e r n e d .

C o n d i t i o n s

a p p l y i n g

t o

any

o p e r a t i o n s

f o r

t h e recovery

minera ls were

unchanged by the

amalgamation

t h e

o f

t w o

areas.

I n r e l a t i o n

t o t h e p o s s i b l e i n c l u s i o n

Kakadu

Stage

t h e

World

Heritage

L i s t ,

p r o c e d u r e s

f o r

n o m i n a t i n g

p o s s i b l e

f u t u r e

A u s t r a l i a n

sites

f o r World

Heritage

l i s t i n g were

agreed

a t t h e

J u l y 1984

meeting

the

C o u n c i l o f

Nature

C o n s e r v a t i o n M i n i s t e r s

(CONCOM)

a n d

i n c l u d e d ,

i n t e r a l i a ,

commitment

t h e

Commonwealth

t o

f u l l c o n s u l t a t i o n w i t h

State

a n d T e r r i t o r y

Governments .

Should

the

Commonwealth decide t o

p u r s u e

World

Heritage

l i s t i n g of

t h e f o r m e r

Stage 2

area,

your

Government

w i l l

b e c o n s u l t e d

i n

a c c o r d a n c e w i t h t h e

CONCOM

a g r e e m e n t p r i o r t o a n y

a p p r o a c h be ing made

t o the World

Heritage

Secretarlat

l n Paris..

13.

16 September

1 9 8 6 ,

S e n a t o r

E v a n s

a n d

t h e

f i r s t

r e s p o n d e n t

i s s u e d

j o i n t s t a t e m e n t

follows:

“The Government

agreed

today

to endorse a

r ev i sed

P l an

o f

Hanagemcnt

tor

t h e

Kdkadu

Na t rona l

Park

wnlch

would

exclude

the

p o s s r b r l l t y of

any

new

mrnrng

a c t l v i t y

t a k i n g

p l a c e

w l t h l n

t n e

Park

bounaar les .

The

Government

a l s o

a g r e e d

t h a t

rmmealatc

steps

shou ld

t a k e n

nomrnate

Stage

I1 of t he Pa rk

fo r

l nc lus lon

t h e

World

H e r i t a g e

L l s t .

Stage

I ,

c o v e r r n g

6144

k m ,

wits

d e c l a r e d

I n

1979 and l ls ted as a riorla H e r r t a g e

s l t e

1981:

S t a g e 11,

cover lng

6925

knl

was

d e c l a r e d

p a r t

o& t n e Kakaau Natronal

Para

l n

1984.

The

World

t i e r l t a g e

L l s t

l d e n t l f l e s

a r e a s

a f

’outs tana lng

u n l v s r s a l

v a l u e ” ,

drsappearance

d e s t r u c t r o n

uhrch

wou ld

c o n s t l t u t e

“harmful

zmpoverrshment

the

n e r r t a g e ot

all

n a t r o n s

a t

t n e YOKIQ”.

S t age

Kakadu

Naclonal

P a r k

v111

f i t t i n g

a d d r t l o n

t o

t h e

World

Her lcage

L l s t .

lnclrlaes

w e t l a n d s

malar

l n t e r n a t l o n a l

s l g n l f l c a n c e .

m a n g r o v e s

o f

g r e a t

s c l e n t l t r c

l n t e r e s r

d n u

c x t e n s 1 v e

a r c n a e J l s y l c a 1

dnu

r c c k

a r t

s r t e s .

The r e v i s e d terms 01 t n 4 Plan of	Management	f o r	S t a g e s	I
-

ana

t o B e

submlccea

t o

P a c l l a l e e n t

w i l l be

a l a n g

the

l i n e s

t h e

D r a t t

P i a n

p u b l l c l y

c i r c u l a t r a

t h e

Director

t n e

A u s c r a l l d n

t h t l o n a l

P a r k s

ana

Wllallfe

Servlce.

The

p rov l s lons

ques t lon

l n

d l f f e r

f rom

t h e

p r e v i o u s

P l a n ,

n d u

e x p 1 r c . ~ , w n l c ~ #

enaolea

explorac lon

an0

mn111!1g

t a

take

? l a c =

~ U C S L U + p r e - e x l s ~ ~ n g

l e a s e s w i t h

the

a d p t d v a l

enc.

Covernot-uener.i l .

The

e x l s t l r l g

i l ! n O d ~ anu

Coadparla

pastacal

l e d s e s

arc'

n a t

part

01. tile

K a k n d ~ National

p a r s .

I n

f u ~ t h e r rnaJor

decision,

t h e

G o v e r n m e n t

a y r e e a

t o

e n l a r g e

t h e

b o u n r l a r l e s

t n e Park

l n t i j t h e

e x i s t l n g

C l m o a t

a n a

G s o a p a r l a

l e a s e s ,

v h l c h

b e t v e e n

them

cover

6 7 2 6

a n a

l n c l u a e

l a r y e

a r e a

t n e

ca t cnmen t

the

S s u c n

A l l i g a t o r

R l v e r .

S r g n l f i c a n t

a r e a s

these p a s t o r a l

l e a s e s

l n c l u d l n g

t h e

area

cove red

t n e

BHP-lea

Corona t lon

Hi11

e x p l o c a t l o n

project

have

been

the

s u b j e c t

p r e v l o u s

m l n l n g

a c t i v r t y ,

and

a t

least

t h l r a

o f

t ne

t o t a l

a r e a

has

been

a s s e s s e a

t h e

Bureau

Mrne ra l

Resources

h l g h l y

p r a s p e c t r v e

far

m l n e r a l s ,

especially

go la

and

plat

lnum.

Under

t h e s e

c r r c u m s t a n c e s ,

C a b i n e t

h a s

a g r e e a

t h a t

t h e

f u r t h e r

e x t e n s l o n

t h e

P a r k

snou ld

subjec t

arransements

u h i c n

v111

e n s u r e

t h a t

f u l l

a s s e s s m e n t

the

re source

pa : en t r a l

t h e

a r e a

t a k e s

p l d c e .

T n e

d e t a l l s

S t a g e

t h e

111

e x t e n s l o n ,

l n c l u c r n g

t h e

mecnanlsms

t o

e n s u r e

t h e

f u l l env l ronmen ta l

protection

the

South A l l r g a t o r

River

system,

v 1 1 1 be

the

SUbJeCt of

f u r t h e r

c o n s l d r c a t l o n

t h e

Cablne t

and

C a u c u s

l n

t h e

n e a r

f u t u r e .

15.

Ara tmyvrtdnt element I n tne G'ovrrmwtlt

' 3 JccLsi.m

: I &

neen

chc d5sessntcnts

ttle

mancrsl

p u c e n c l a l

cnc

V d C l o U S

arrbs - necessarlly tentatrve at thls stege - t h a i have

Deen maae oy tne B.W on tne D ~ S I S of a l l known exlsclnq lnformatron. The present Naclanal P a r k area (Stages 1 dca

11) has been assessea DY tne BnH as belny very hlghly

prospeccrve for uranium,' but only moderately prospectlve

for gold, platrnum ana base metals: ln the

propasea

Glmbat/Gooaparla Stage 111 extenslon area, by contrast.

tne BMA's assessment is one at nrgn potentLa1 for gold ana

platlnum, but only moderate prospectlvlty for uranlum.

0y contrast, there 1s n3 pollcy restrlcclon on $310 or

platlnum minrng, sub)ect only CO envlronmental ena related consrderat~ons, ana prevarllny world market prlces orfer a

very strong rncen'rve,

rn the present ecanamrc clmate,

far tnr develapent of new gola ana ; l a t ~ n u m pro~ects.

In the principal

proceedings,

the

applicants

seek

declaratory and injunctive relief in relation to the proposal to submit Stage 2 of the Kakadu National Park for inclusion on the World Heritage List. The general nature of the case sought to be made by the applicants is sufficiently indicated for present

purposes by paras.23-35 of their points of claim. After referring to the letters wrltten by Senator Evans and the first respondent on 8 and 16 September respectively (para.231, the points of claim continue:

16.

24 .	The effect of Including In a submission for World Heritage Listing areas of land the subject of the Llcences referred
to in paragraph 6 hereof is:

to extinguish and render nugatory and valueless the

rights and interests of the Appllcants set forth In

paragraph 7 hereof:

to deprive the Applicants of the beneflt of, and to

render valueless, the expendlture referred to in

paragraph 8 hereof;

to defeat. destroy and frustrate the reasonable and

legltimate expectatlons of the Appllcants

of belng

permitted to mlne the deposlts dlscovered by them and

any other deposlts u r t h m the lands the sub~ect	of
the Llcences.

25. Prior to 17 September 1986 the Appllcants made known to the

Third Respondent thelr deslre to be heard and make representations In respect of any proposed nomlnatlon of

Stage I1 of the Kakadu Natlonal Park for llstlng

on the

World Herltage Lxst.

26.

By reason of the matters aforesald the Flrst Respondent

and

the Thlrd Respondent were obllged

to hear and consult wlth

the Applicants and the Northern Terrltory Government

prior

to nonmating Stage I1 of the Kakadu Natlonal Park for

17.

llsting on the World Eeritage

List.

27.

In breach of the said obligation and wlthout any

prior

consultatlon with or knowledge

of the Applicants or the

Northern Terrltory Government the First Respondent

Orr

alternatively, the Third Respondent on or about 17 September

1986 nominated Stage I1 of Rakadu Natlonal Park for listing

on the World Eerrtage Llst.

28. In the clrcumstances the declsion to so nominate Stage I1

of the Rakadu Natlonal

Park was ultra vires and void or,

alternatively, voidable.

29.

Further, or alternatively

in making the said decrslon the

First Respondent and the Third Respondent were bound and

obllged to:-

(a)

take into account

all relevant considerations

including the rights and interests of the Applicants

In lands comprised withln the areas

proposed to be

nominated for World Herltage Llstmg and in the

minerals lylng on, in, and under the said lands

therr natural state belng interests of the

kind

referred to in Section 8 8 of the National Parks	and
Wildlife Conservation Act 1975:

(b)

consider the merits of excludlng from the area

nominated for such listing lands

in respect of which

the Appllcants had such rights and Interests.

30. The area nominated for listing by the First Respondent or, alternatively, by the Third Respondent Included all areas of

land within Stage I1 O E the Kakadu National Park In which

the Appllcants had rlghts and Interests pursuant to the

18.

Licencea referred to In paragraph 6 hereof.

31. In breach of the obllgatlons speclfied In paragraph 28 hereof the FlKSt Respondent or, alternatlvely, the Third Respondent:

(a)

drd not take Into account the

sald relevant

conslderatlon;

(b)

did not conslder the sald merlts.

32. In the clrcumstances the sald decrslon vas ultra vlres and

vold OK, alternatlvely, voldable.

33. Further or alternatlvely the declslon to nomlnate Stage I1

of the Rakadu Natlonal Park vas manlfestly unreasonable in

that i t was so unreasonable In the circumstances that no

reasonable person In the posltlon of the First Respondent

could have come to It.

34. In the circumstances the sald declslon vas ultra vlres and

vold or, alternatlvely voldable.

35. The Appllcants fear that, unless restrained, the Governor-

General wlll make Proclamatlons under sectlon 6(3) or sectlon 7 OE the World EeKltage Propertres Conservatlon Act

1973 In respect of the lands the sub~ect

of the nomination

referred to In paragraph 26 hereoE.

19.

The applicants then claim the following final relief:

36. The Applicants claim:-

(a )

A declaration that the Governor-General

IS not

presently entitled to make any Proclarnatlon pursuant

to sections 6 or 7 of the world Herltage Propertles

Conservation Act 1983 In respect of the land

norinatcd for incluslon on the World Herltage Llst as

set forth ln paragraph 26 hereof;

(b)

A declaratlon

that

the declslon to make the

nomlnatlon referred to In paragraph 26 hereof vas

ultra vlres and vold or, alternatlvely, voldable.

(c)

~ n ~ u n c t ~ o n

restrainlng the Flrst Respondent

from

taklng any €urther steps to prosecute, support.

promote or othervlse further the nomlnatlon

of Stage

I1 of the Kakadu Natlonal Park	for lncluslon on the
World Herltage Llst.

(d)

A mandatory ~n]unctlon requlrlng the

Flrst Respondent

to take all steps reasonably open and avallable to

him to cause the sald nominatlon to be vlthdraw or

deferred.

(e)

A mandatory lnjunctlon requirlng the Flrst Respondent

to fully consult and hear and properly conslder the

submlsslons of the Appllcants prlor to:

( 1 )

taklng any further step

to promote, support or

further the nomnatlon of Stage I1 of the Kakadu Natlonal Park for lncluslon on the

World Herltage List:

20.

(ii) taking any step to renominate Stage I1 of the Rakadu National Park for inclusion in the World Heritage List:

( f )

Inlunction restrainlng the Governor-General from

making any Proclamation in respect of Stage I1 of the

Kakadu National Park pursuant to section 6(3) or

section 7 of the World Heritage Properties

Conservation Act 1983.

(g)

An inlunction restraining the GOVernOK-GeneKal

Erom

taking any steps to make a Proclamation pursuant to

sectlon 6(3) or section 7 oE the said Act ulthout

flKSt having fully consulted the Applicants and

without first having fully listened to and considered

their submissions about the making	of such
Proclamatlons.

In their notice of motion for interlocutory relief. the

applicants seek orders:

injunction pending the determlnation

of these proceedlngs

restraining the Respondents from glvlng the consent

contemplated by Artlcle 11.3 of the Conventlon for the

Protection of the

World Cultural and Natural Aerltage In

respect of the area known or formerly known as the Kakadu

Natxonal Park Stage 11.

2. Alternatively, an in)unctlon pendlng the determmatlon of

these proceedlnqs restralnrng the Respondents from glvlng

the consent contemplated by Artlcle 11.3 of the Conventlon

for the Protectlon of the World Cultural

and Natural

Eerltage rn respect of that part of the area known or

formerly known as the Kakadu Natlonal Park Stage

I1 whlch

comprrses or includes the land In respect of whlch the

Appllcants or any of them c l a m an Interest by reason of the

lrcences referred to in paragraphs 9-11, 13-23, 35-40. 44,

45, and 55-57 of the longer affldavlt of GeOffKey Harold

Sherrlngton sworn on 13th November, 1986.

inJunction requirlng the Respondents to

withdraw; pendlng

the determination of these proceedings, any

consent glven by

them or any of them pursuant to Artlcle 11.3 of the

Convention for the Protectlon of the World Cultural and

Natural Eerltage m respect of the area known OK formerly

known as the Rakadu National

Park Stage 11.

Alternatlvely, an 1n)unctlon requlrlng the Respondents

wlthdrau, pendlng the determlnatlon of these proceedlnqs,

2 2 .

any consent given

by them or any of them

pursuant to Artlcle

11.3

of the Conventlon for the Protectlon of

the World

Cultural and Natural Eerrtage

In respect o€ that part of the

area knovn or formerly knovn as the Kakadu Natlonal Park vhlch the Appllcants or any of them c l a m an Interest by reason of the lrcences referred to rn paragraphs 9-11, 13-

23.

35-40. 44,

4 5 ,

and 55-57 of the longer affrdavlt o€

Geoffrey Earold Sherrlngton sworn on 13th November,

1986.

order

obtain

interim

injunction,

the

applicants must show: (a)

there is a serious question to be

tried: (b) unless the respondents are restrained, the applicants

will probably suffer irreparable injury for which damages are not

the adequate compensation: (c) the balance of convenlence is in

favour of the applicants (see, e.g. Castlemaine Tooheys Limited

v. The State of South Australia, 3 October 1986, per Mason A.C.J .

at pp. 5-6 1 .

. ' .

23.

In my opinion, the applicants have

established that a

serious question arises

for trial

in the principal proceedings

insofar as their case is put on the grounds of a denial of natural justice (see Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321 per Mason J. at pp.345-8: per

Wilson J. at pp.359-61:

per Brennan J. at p.373; per Deane J.

at pp.383-4).

In Kioa, Brennan J. said (at p.373):

"When the repository is

bound, or is entitled to

have regard, to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the

exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard

before the power is exercised.

Therefore the

presumption applies

to any statutory power the

exercise of which is apt to affect the interests

of an individual alone or apt to affect his

interests in a manner which is substantially

different from the manner in which its exercise

is apt to

affect the interests

of the public.

Of course, the presumption may be

displaced by

the text of the statute, the nature of the

power

and the administrative framework created by the

statute

within

which

the

power

is to

exercised. "

The present

legislative scheme consisting

in part of

Commonwealth legislation (see, e.g.

ss.8B and 10 of the National

Parks and Wildlife Conservation Act and Part I11 oE the Atomic Energy Act 1953) and in part of Territory legislation (see, e.g. 8.176 of the Mining Act (N.T.) 1980) recognises the interest, in

mining terms, of the applicants

in that part of Stage 2 of

Kakadu

National Park known as Munmarlary project

area. For Instance, by

s.EB(1) and (2) of the National Parks	and Wildlife Conservation
-	Act:

" 8 8 . ( 1)

Where any land is within

a park,

reserve or conservation zone

(a) subject

paragraph (b), the prescribed

provisions of this

Act

and of

the

regulations and, in the case of a

park or

reserve,

the provisions of the plan of

management do not affect -

(i) any interest in respect of that

land or in respect of any minerals on, in or beneath that land held

immediately before that

land was

within

the

park.

reserve

conservation zone by any person

other than the Commonwealth or the

Director;

(ii) the application of any law of

State or Territory in relation to

such an interest:

and

(b) notwithstanding

anything to

the

contrary

contained in any law of the Commonwealth or

of a

State

or Territory,

interest

referred

in sub-paragraph (a)(i) (not

being an interest

in respect of minerals

beneath the land concerned) shall not be renewed, and the term of such an interest shall not be extended, except with the

consent in writing of the Minister and subject to such conditions as the Minister determines.

( 2 )

person adversely affected by the

refusal of the Minister to give consent, or by

the imposition

conditions, under paragraph

(1)

(b) is entitled to

paid

reasonable

compensation by the

Commonwealth."

It is contended on behalf of the applicants that if

Stage 2 of the park were

to be listed by the Committee, Australia

would become bound, by virtue of the terms of Article 5(d)

of the

Convention, to take, inter alia, "the appropriate

...

legal ...

measures necessary for the...conservation of this heritage." The applicants say that it is likely that good faith in the exercise

25.

of the powers available to the Commonwealth in the discharge of

its international obligation would probably require the enactment

of legislation to exclude

the

applicants

from any

mining

operations in any part of Stage 2 of the m r k (see the Franklin

Dams case per Mason

J. at pp.696-700;

per Murphy J. at p.734;

per Brennan 3 . at p.771:

per Deane J. at pp.806-9).

In those

circumstances, it is said by the applicants that the making of the decision to submit Stage 2 of the Park for listing without affording them an adequate opportunity to be heard on the point

was in breach of the rules of natural justice. It

is unnecessary

and, indeed, inappropriate at this stage that I

say any more on

the point than that I think that	it raises a serious question to
be tried.

That being so, it is not appropriate that I now embark

upon a

consideration of the merits or otherwise of the

other,

alternative ways in which the applicants sought to	put their case
such as their contention that the decision-maker	failed to take

into account relevant considerations

of the kind discussed in

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66

A.L.R. 299).

It follows from what I have said on the issue whether there is a serious question to be tried that I

am also of the

view that if some interim restraint is

not

now granted,

probable that listing will occur

and

that the Commonwealth will

then proceed

to enact legislation which, in accordance with the

I .. .

26.

international obligation imposed by Art.5(d) of the Convention, will have the effect of prohibiting the applicants from carrying

on exploratory or mining operations anstage 2 of the

Park.

Before

going

to the

question

the

balance

convenience, I should mention three specific submissions

advanced

on the part of the respondents. First,

it was contended that the

matters

now

in issue involved the

exercise

of the

royal

prerogative to make treaties with the consequence that the

proceedings raised questions which were not justiciable (see

Council of Civil Service Unions v. Minister for the Civil Service

C19851

A.C. 374 per Lord Roskill at

pp.416-7).

But the House

of Lords there held that executive action

was

not

immune

from

judicial review merely because it was carried out in pursuance of a power derived from the general law, including the prerogative. It may be a question whether the High Court will follow the

reasoning of the House of Lords (see Kioa per Brennan

J. at

p.367: -

A.v. Hayden (1984) 156 C.L.R. 532 at p.590;

Brennan J.

"The Purpose

and Scope of Judicial Review" (1986) 2

Aust. Bar

Rev. at pp.102-3;

G. Sawer h e External

Affairs

Power

(1983-1984) 14 FL. Rev.

at pp.199-201). It is

inappropriate to

endeavour to resolve such a question at the interlocutory

stage.

In any event, the decision presently

under challenge does

not

involve the prerogative:

it is a statutory condition precedent

to the exercise of the powers contained

in ss.6 and 7 of the

World Heritage Properties Conservation Act.

27.

Second, it was argued on behalf of the

respondents that

the applicants' case was misconceived because

it amounted to an

attempt to assert that the Convention conferred

private rights on

them. In

m y view, the submission should be rejected.

It is

trite law that an international treaty to

which Australia

is a

party

forms no part of Australian

law

in the

absence

legislation implementing it

so that, the treaty, of its own

force, cannot confer rights

on subjects (see, e.g.,

Simsek v.

MacPhee (1982) 148 C.L.R.

636 per Stephen J. at pp.641-2).

But

in the present case, the applicants' challenge is grounded upon executive action taken pursuant to the World Heritage Properties

Conservation Act with

a view

to the exercise of the powers

contained in ss.6 and 7 of that Act. True, the existence of the Convention is important both as to the context in which the executive action takes place (cf. Minister for Immigration and

Ethnic Affairs v. Mayer (1985) 157 C.L.R.

290 per Mason J., Deane

J. and Dawson J. at pp. 302-3) and as bearing upon the probabilities as to whether the powers in ss.6 and 7 of the Act

will be exercised.

But that is a different matter.

Third, it was suggested that the applicants were guilty

of laches or delay. Since the submission for the listing of

Stage 2 of the Park was made as

recently as 17 September, there

can be no suggestion of unreasonable delay	on the part of the
applicants.

I turn next to the balance of convenience. This

issue

28.

must be considered against the background that the final hearing of the proceedings has been expedited and is fixed to commence in

Darwin on 8 December.

It is anticipated that the final hearing

will conclude on 12 December and that ludgment will be	given
shortly thereafter.

It is said on behalf of the respondents that Australia

may suffer some loss

of prestige in the international community

if it were now ordered to withdraw

its consent to the listing as

is required by Article

11.3

of the Convention. Moreover, the

appliqants' only interest in the said lands comprising Stage 2 of the Park is an area of about 65 square kms. out of a total area of about 7,000 square kms. I therefore decline to order that the Commonwealth MW withdraw its consent to the listing as a whole.

On the other hand, the applicants

face the real prospect

that if no interim relief is now granted, the listing of Stage 2

will proceed and that consequential legislation will be enacted

which will deprive the applicants

of their existing mining rights

(cf. the Franklin Dams case per Deane J. at p. 800) . In my

judgment, the appropriate method of preserving the status quo in

these circumstances is to grant limited relief directing the

respondents to inform the Committee of the

following:

(a) that the applicants claim

to be entltled to

certain

mining

rights

over

area of

approximately 65 square kms. sltuated within

29.

the boundaries of the Stage 2 extension,

which

area

described in the schedule to the

orders made herein:

(b) that the applicants have recently commenced

proceedings in the Federal Court of Australia

seeking to restrain the consent of the

Commonwealth of Australia to the listing and

to require that consent

to be

withdrawn:

(c)

that the proceedings have been fixed for a

final hearing to commence on

8 December 1986:

(d)

that

anticipated that the proceedlngs

will conclude on 12 December 1986 and that the

judgment

the Court will be given shortly

thereafter:

(e)

that, with a view to preserving the status quo until judgment in the proceedings in respect only of the area described in the schedule (and not otherwise), the Federal Court of Australia has directed the respondents to request the World Heritage Committee to defer, until further notice, its consideration of so much of the application for the listing as includes the area described In the schedule to

.=.

30.

t h e orders.

For

t h e s e

r e a s o n s ,

upon

t h e

a p p l i c a n t s

g i v i n g

t h e

u s u a l

unde r t ak ing	a s t o damages.	the	o r d e r s d a t e d	24	November	1986	w e r e
made.

I	c e r t i f y t h a t t h l s a n d t h e t w e n t y - n l n e

preceding

pages

are

t r u e

c o p y o f t h e

Reasons for Judgment h e r e i n of

h i s Honour

M r .

J u s t i c e Beaumont.

Dated: 26 November 1986.

w e 1 and Solicitors for App&cmts:

R.A. cbntl Q.C. w l t h Mr. A. Sulllvan

mtructed by Clayton Utz.

Counsel and Sollcltors for %spndents:

D.M.J. Bennett Q.C. with m.C. Shwson

[1986] FCA 543

26 Nov 1986