Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC v State of Queensland

[2014] HCATrans 268

[2014] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 2014

B e t w e e n -

QUANDAMOOKA YOOLOOBURRABEE ABORIGINAL CORPORATION RNTBC

Plaintiff

and

STATE OF QUEENSLAND

Defendant

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 28 NOVEMBER 2014, AT 10.15 AM

Copyright in the High Court of Australia

MS S.E. PRITCHARD, SC:   I appear with MR A.L. McAVOY for the plaintiffs.  (instructed by Queensland South Native Title Services Ltd – Brisbane)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   I appear for the defendant, may it please the Court.  (instructed by Crown Law ‑ Brisbane)

HER HONOUR:   I think that you would have both received a copy of the draft order.  I just have a few questions about the draft questions themselves.  Question 2 ‑ the draft questions are now reduced, it would seem, to what was originally the defendant’s preferred version with paragraphs 2 and 3 combined.  Question 2 is expressed to depend upon an affirmative answer to question 1.  Is not question 2 a stand‑alone question of inconsistency between the Amendment Act and the Native Title Act?

MS PRITCHARD:   If I might, from the plaintiff’s perspective, your Honour, the original draft proposed by the plaintiff had it as a stand‑alone question, but in an endeavour to reach agreement for the purposes of today the plaintiff was content to agree to the form proposed by the defendant, but we accept what your Honour has said about it being in fact a stand‑alone question.

HER HONOUR:   Well, I mean, it is important, is it not?  Question 2 might not be arrived at, and the way in which it is expressed it will not be arrived at necessarily, depending on the answer to question 1.

MS PRITCHARD:   Perhaps that is a matter for the defendant to address the Court on, your Honour.

HER HONOUR:   Well, no, you both have to agree this.  I mean, you both have to acknowledge what the outcome is going to be if the questions are framed in this way.

MS PRITCHARD:   In a sense, your Honour, question – I beg your pardon.

HER HONOUR:   I am sorry.  Perhaps we could start with question 1 itself.  What does question 1 really pose?  At the previous directions hearing I think you said, Ms Pritchard, that the ILUA was said to have a particular status akin to an award.  Is this the kind of argument that is being advanced here?  You are not advancing some kind of estoppel.

MS PRITCHARD:   No, we are not.  I understand what is attempted to be expressed in question 1 is an anterior question which arises in all

section 109 cases, namely, the proper construction of the instrument, the Commonwealth instrument under consideration and in relation to this ILUA the plaintiff contends that properly construed it covers all future acts in relation to the agreement area, including, in effect, an agreement not to do certain future acts.  So on our case, properly construed, the ILUA provides an exhaustive list of agreed acts, and as I understand it the State’s case is that the list in the ILUA is not exhaustive, so question 1 seeks to address the proper construction of the ILUA.

HER HONOUR:   How does that then lead, by an affirmative answer, into question 2?  Can you enlighten me there?  This is the stand‑alone proposition we were just discussing.  How does an affirmative answer to question 1 then lead into question 2?  Why is question 1 necessary to question 2?  What actually follows from an affirmative answer to question 1?

MS PRITCHARD:   Well, the question of the relationship between the Amendment Act and the ILUA, because again this is a question for the defendant but I assume the defendant’s case is that the ILUA on its proper construction does not bind the State not to enact the Amendment Act and thereby extending the periods of the mining leases and removing the restriction on the amended mine path.  So I assume – again I am speaking for the defendant – but if that is the defendant’s construction of the ILUA then on that construction no question of inconsistency would arise.

HER HONOUR:   Well, perhaps I should hear from the Solicitor‑General.  Thank you, Ms Pritchard.

MR DUNNING:   Thank you, your Honour.  Your Honour, in our respectful submission, the second question is rightly cast conditionally upon an affirmative answer to the first question for this reason.

HER HONOUR:   Why?

MR DUNNING:   Because as we understand the plaintiff’s case it is, in effect, to say the ILUA was an agreement created under the statute, it has a certain consequence, being that you could not grant further mining leases, which is what the Amendment Act does ‑ ‑ ‑

HER HONOUR:   This is something akin to a contractual status that we discussed at the directions hearing.  It has ‑ I think in the way it was put, something akin to an award, I think was discussed.

MR DUNNING:   That is right.  Indeed, we would say that the plaintiffs must necessarily be saying it has an extra contractual operation so that it is really ‑ ‑ ‑

HER HONOUR:   Its operation then affects whether or not the Amendment Act should have been passed at all.

MR DUNNING:   Yes.

HER HONOUR:   That is quite a distinct question from the question whether the Amendment Act is inconsistent with the Native Title Act, is it not?

MR DUNNING:   I think it is not in this way.  The first question will quiet the controversy as to whether the ILUA by its terms prevented the granting of additional leases, which is what the amending Act did.  Now, if the answer to that is no, the ILUA did not prevent that, then there is nothing left in the case for the plaintiff because that is the only basis upon which they challenge the amending Act, is that it is inconsistent with the terms of the ILUA, and if the grant of these mining leases is not inconsistent it would seem, we would respectfully submit, there is nothing left in the case, and we do not understand them to contradict that.

If the ILUA is inconsistent with the grant of additional mining leases the question then is what is the status of the ILUA now on the State’s case?  The status of the ILUA is as contemplated by the Native Title Act, that is, it enjoys a contractual status.  Breach of it might be the subject of litigation as if it were a breach of contract but it does not create a constitutional question ‑ ‑ ‑

HER HONOUR:   The way you are putting it, it is not really an inconsistency, it is not a section 109 argument at all.

MR DUNNING:   In our respectful submission, it is not, but as we understand the plaintiff’s position is to say that by virtue of the regime of the Native Title Act to create ILUAs and to create something that is, as our learned friends described it last time, akin to an award means that it enjoys, as it were, a statutory force and, therefore, you would have ‑ ‑ ‑

HER HONOUR:   Let us just go through – I mean, the way in which I read it and I would have thought that question 2 should be if the answer is no is there an inconsistency, but let us just go through question 1?

MR DUNNING:   Certainly, your Honour.

HER HONOUR:   If the ILUA does bind the defendant in the way for which the plaintiff contends what is the outcome?  What is the answer?  What happens?  What is the legal result?  It means the Amendment Act should not have been passed?

MR DUNNING:   It means that the Amendment Act was a breach of contract that had been passed on the defendant’s case.

HER HONOUR:   Well, what is the legal outcome?  What relief does the Court give?

MR DUNNING:   We would respectfully submit this Court would give no relief.  It would then be a matter – because no claim is made on that contract basis, nor would it be, obviously, in this ‑ ‑ ‑

HER HONOUR:   Well, exactly.  What does that say about inconsistency?  Why is that a threshold question for the inconsistency argument?

MR DUNNING:   Because, as we understand the way the plaintiff frames its case, it is to say the terms of the ILUA prevented this occurring and the ILUA enjoys a statutory force so you need some ‑ ‑ ‑

HER HONOUR:   What has that to do with an inconsistency argument as between the terms of the Amendment Act and the Native Title Act?

MR DUNNING:   Because, at least as I understand the plaintiff’s case, it is to say that the Native Title Act, at least in the form of the ILUA, said that you may not grant the additional mining leases, and the Amendment Act granted additional mining leases and there is that inconsistency.  That is my understanding of how the plaintiff frames its case.

HER HONOUR:   Well, you are both saying – each of you are saying that the other is really putting forward these as the correct questions ‑ ‑ ‑

MR DUNNING:   I am not meaning ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ so obviously nothing that I am saying is – I must be the only one misunderstanding what the case is truly about.

MR DUNNING:   No, I am confident that is not the case, your Honour.  I am not meaning in any way to not confront your Honour’s questions but, as I say ‑ ‑ ‑

HER HONOUR:   No, I must misapprehend what the case of the plaintiff and the defendant is.  While you are there, is the defence to inconsistency ‑ if that question is ever arrived at ‑ is the defence that the Amendment Act is not inconsistent with the principal Act because it allows activities so long as they are finalised by a particular time?  It is only the timing issue.  But there is no inconsistency as between the operation of the two statutes otherwise.

MR DUNNING:   Your Honour, the way I think – I am not sure that quite is the answer.  The defendant’s case is that if the answer to the first question is yes, the ILUA did proscribe the grant of further leases, which is what the amending Act did, then it only has contractual force, it does not have anything beyond that, therefore there is no inconsistency point because there is no Commonwealth statute that is inconsistent with the amending Act, the fact that a contractual arrangement was brought into existence under it.

HER HONOUR:   We might be at cross‑purposes about what we mean by inconsistency here.  I am just talking about as between the principal ‑ not the section 109 question, but as between the principal Act and the amending Act, the Queensland Act.  As I had understood it in the past, the principal Act was said not to be inconsistent with and in accordance with the ILUA, and that both parties are, I thought, ad idem about that.  But I had understood the State of Queensland to say that the amending Act was in accordance with the principal Act as well, but there was a division there.  Is that right?

MR DUNNING:   That is right, your Honour, yes.  I am sorry, I misunderstood your previous question.  My first answer was not responsive to it.

HER HONOUR:   To what extent then do the claim and the defence depend upon the construction of the ILUA?

MR DUNNING:   In our submission, they do still depend on it because it is the only basis upon which the plaintiff contends that the amending Act or, indeed, that there is anything that is inconsistent with the obligations of the Native Title Act.

HER HONOUR:   Before I revert to Ms Pritchard, the mining leases themselves are not included in the bundle, the draft bundle, just reports on them?

MR DUNNING:   That is correct, your Honour.

HER HONOUR:   Do the mining leases, the terms of the mining leases themselves, not assume any relevance at all?

MR DUNNING:   No, in our submission, they do not, and at least as I am instructed there are some issues of some of the information that is contained in those mining leases that ‑ ‑ ‑

HER HONOUR:   Would not the activities that the mining leases allow be relevant?

MR DUNNING:   Not as we understand the plaintiff’s case.  We understand the plaintiff’s case is that any grant of mining lease ‑ that is, that the ILUA ‑ ‑ ‑

HER HONOUR:   Beyond a certain point of time?

MR DUNNING:   Correct.  The ILUA operated to say that there came a date after which there could be no grant of mining rights – perhaps other rights as well, but relevant to our inquiry, no grant of additional mining rights that did not exist at that day.

HER HONOUR:   I should hear Ms Pritchard.

MR DUNNING:   Thank you, your Honour.

MS PRITCHARD:   To deal with the second question first, your Honour.

HER HONOUR:   Yes.

MS PRITCHARD:   It is correct, as your Honour has observed, that the draft special case book does not include the mining leases, rather, the department’s mining lease report.  There has been extensive correspondence in relation to this matter and the plaintiff has repeatedly requested copies of the mining leases for confirmation in the first instance by the plaintiff of the accuracy of the matters pleaded concerning commencement renewals and the like.  Those requests have been resisted on the basis that the mining lease reports are adequate, but in correspondence the plaintiffs made it clear that if the Court were of the view that it was appropriate to have the mining leases in the draft special case book we would raise with the Court the history of correspondence in relation to this matter.

HER HONOUR:   Mr Solicitor, is there any reason why the mining leases should not be there?  I can just foresee somewhere during the hearing one Justice at least is going to ask where are the mining leases and for their terms because we are dealing with activities.  So is there any difficulty with them not being provided?

MR DUNNING:   There were concerns, your Honour, about there being confidential and commercially sensitive information contained in them.

HER HONOUR:   The Court deals with material like that on a regular basis.  If that is the case then the parties can either seek orders in relation to it or they can talk to the Registrar about how that is to be dealt with in the scheme of things.

MR DUNNING:   Certainly.  I understand your Honour’s intimation.  We will discuss the matter with the other side and we will come up with ‑ ‑ ‑

HER HONOUR:   I think they should be made available when you settle the bundle of documents for the special case.

MR DUNNING:   Thank you.  We will speak to our friends about sorting out a regime to protect any confidential information.

HER HONOUR:   Yes, thank you, Ms Pritchard.

MS PRITCHARD:   In relation to the special questions, again I apologise if the plaintiff perhaps too readily agreed to the defendant’s formulation of question 1.  Can I summarise the plaintiff’s ‑ ‑ ‑

HER HONOUR:   I do not wish to assert what might be a not completely well‑informed view of mine about this.  Obviously, the parties and their legal advisers are much closer to the issues and the questions that they wish stated for the Court and I will put them forward to the Full Court.  It is just that I have difficulty understanding it, but if the plaintiff is content for it to go forward on this basis – I just do not want it to become unstuck in the ‑ ‑ ‑

MS PRITCHARD:   I understand, your Honour.  Could I summarise the plaintiff’s argument for the defendant and for the Court in this way?

HER HONOUR:   Yes.

MS PRITCHARD:   There are three propositions.  The first concerns the status of indigenous land use agreements under the Native Title Act, and the Court will recall the important function of ILUAs in providing for the validation of future acts under the Native Title Act.

HER HONOUR:   Yes.

MS PRITCHARD:   This was a centrepiece of the 1998 amendments to the Native Title Act.  In Division 3 of Part II there are various means by which a future act can be validated and these include either by an ILUA or by operation of one of the mechanisms provided in sections 24FA to 24NA.  Section 87 provides in relation to ILUAs that in addition to any effect that it may have apart from this subsection as if it were a contract, so the language of section 87 is reasonably clear.  In our respectful submission, the other effect is contemplated and the Act certainly does not confine the effect of a contract.

Our analysis of the ILUA provisions leads us to submit that an ILUA is a regime or an instrument to which the Native Title Act (Cth) attaches and which binds all Quandamooka people, the plaintiff and the defendant pursuant to section 24EA. So that is how we place ILUAs in the realm of section 109 discourse. We invoke the analogy of industrial award cases most recently considered by this Court in Jemena Asset Management. 

That brings up for consideration the legal meaning effect of this particular ILUA, and the circumstances surrounding the negotiation of this ILUA and reflected in the language of the ILUA would lead to the submission that it was intended by the parties as a complete and permanent adjustment of the questions in dispute and that picks up on the language of Chief Justice Knox and Justice Gavan Duffy in Clyde Engineering.  This ILUA on its construction covers all future acts in relation to the agreement of the area and it provides an exhaustive list of those agreed acts.  That is a question of construction of the ILUA which arises, in our submission.

This brings us next to the section 109 question.  By the Amendment Act we submit that critical provisions of the ILUA are rendered largely ineffective by subsequent legislation which was not negotiated in accordance with the Native Title Act or the terms of the ILUA itself.  As your Honour is aware, the Amendment Act extends the period of mining leases and removes the restrictions on the mine path.  Avoiding perhaps unfashionable jargon, the summons and statement of claim use language of “direct and indirect inconsistency”; we accept that is not entirely fashionable in the Court.

Using the language of Jemena Asset the crucial motions of altering, impairing or detracting from the law of operation of a law of the Commonwealth are engaged here and the State law, in our submission, undermines the Commonwealth law and that is how we put our 109 argument and that alteration of impairment or detraction is significant and not trivial.  So they are the three steps to the argument, your Honour.  So we accept that there arise questions of construction of this ILUA, but as we have indicated to the State, we do not necessarily share the view that they need to be reflected in the questions stated for the Full Court.

HER HONOUR:   Well, the parties are content with the questions as stated.  In relation to the draft order itself the parties will probably appreciate that there has been a little bit of movement with the dates just as between the filing of the index and the special case.  I do not think that would cause any difficulty for the parties.

MR DUNNING:   No, thank you, your Honour.

MS PRITCHARD:   None whatsoever, your Honour.

HER HONOUR:   Has there been an order thus far that the case be referred into the Full Court?

MR DUNNING:   We believe not, your Honour.

MS PRITCHARD:   No, there has not, your Honour.

HER HONOUR:   No, I think we have perhaps overlooked a slightly essential order.

MR DUNNING:   Yes, it was on our list of to do today.

HER HONOUR:   Yes.  What are the terms of the order that should be made, that this matter be referred into the Full Court?

MR DUNNING:   Yes, your Honour, there does not seem to be anything that presumably deals with it in the rules and that ‑ ‑ ‑

HER HONOUR:   All right.  Well, if the parties could incorporate that in a draft order perhaps.  Perhaps I can sign off on that this afternoon.  In terms of when the matter could be heard, as you would probably appreciate, Mr Solicitor and Ms Pritchard, because of pending retirements of Justices a matter of this nature would normally require all available Justices or all Justices of the Court and it would therefore not be listed until June unless there was some pressing reason for it to be heard by only six Justices, which is not a course that the Court would usually want to take.  Is there any reason that it would need to be heard before June, Ms Pritchard?  The timetable itself takes the parties up to April anyway.

MS PRITCHARD:   No, your Honour, there is no reason.  Thank you.

HER HONOUR:   Thank you.  None from your point of view, I imagine, Mr Solicitor?

MR DUNNING:   No, there is not, thank you, your Honour.

HER HONOUR:   Is there any other difficulty with the just slightly managed altered draft timetable?

MR DUNNING:   Not on our side, thank you.

HER HONOUR:   Well, if the parties could then just formulate the substantive order and combine it with the draft order that has been circulated I will sign off on that later today.

MR DUNNING:   Thank you, your Honour.

MS PRITCHARD:   Thank you, your Honour.

HER HONOUR:   Thank you, Mr Solicitor, Ms Pritchard.  The Court will now adjourn.

AT 10.40 AM THE MATTER WAS ADJOURNED