Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants
[2012] SASCFC 121
•5 November 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS
[2012] SASCFC 121
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
5 November 2012
ABORIGINALS - NATIVE TITLE - CLAIMS AND DETERMINATIONS
ABORIGINALS - NATIVE TITLE - PROCEDURE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
Appeal against decision of the Environment, Resources and Development Court – appeal by way of judicial review heard at the same time – appellants submitted that the District Court Judge sitting on the Environment, Resources and Development Court misconceived the role that he was to perform – the Judge dealt with the issues at trial as if they required resolution by way of judicial determination – it was submitted that the Judge was only engaged in the process of making an administrative decision and that the appellants were denied procedural fairness.
It was further submitted that the Judge failed to adequately address provisions as required by the Mining Act 1971 (SA) and that the Judge failed to address the question of mining being on approved terms.
Held (Gray and Sulan JJ): Appeal allowed – Judge misconceived his role in that he was only engaged to make an administrative decision – the appellants were denied procedural fairness – decision of the Environment, Resources and Development Court set aside – Order remitting the matter to another Judge of that Court for determination.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS
Appellants submitted that the approach taken by the Judge in the Environment, Resources and Development Court was judicial and not administrative – the approach belayed the statutory purpose underlying Part 9B of the Mining Act 1971 (SA) – the Judge was required to make an administrative decision for the purposes of section 63S(2) – the Judge’s role is not to make a judicial determination of a factual dispute.
Held (Gray and Stanley JJ): It was agreed that the Judge misunderstood his role under the legislation causing him to embark on a judicial determination of fact – the appropriate question of whether mining should be allowed on terms was not considered – the Judge made various adverse findings that reflected seriously upon the appellants and the appellants’ officers and employees – in making a determination under section 63S, the Court must take into account matters specified in section 63T.
Held (Kourakis CJ): The Judge failed to consider whether mining should be allowed subject to conditions minimising its impact of mining on native title rights and interests.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEWABLE CONDUCT
Appellants submitted that the Judge misconstrued the substantive content of the criteria specified by the Mining Act 1971 (SA) in failing to recognise that there were no exclusive native title rights and interests that were capable of being exercised on the relevant land – also that the Judge misconstrued substantive content of criteria specified in the Mining Act by assuming a status quo established by a statutory presumption against mining, and by taking into account and according significant weight to “past conduct” without recognising the effect of such an approach on successors and without making findings about the likelihood of future conduct.
Held (Gray and Stanley JJ): Primary task of the Judge was to assess and determine whether and in what circumstances mining could take place – the Judge was not entitled to assume a status quo – the Judge did not embark on the appropriate enquiry of whether mining could exist alongside the proper protection of native title and on what terms – the statutory purpose of the Mining Act does not extend to the making of findings that penalise an applicant under Part 9B of the Mining Act – the Judge’s consideration of these matters and the use made of them in arriving at a determination was misplaced.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - DENIAL OF NATURAL JUSTICE
Appellants submitted that they were denied procedural fairness in that the Judge made adverse findings of fact and credit without any or adequate notice.
Held (Gray and Stanley JJ, Kourakis CJ concurring): the Judge fell into error in denying the appellants and their officers and employees procedural fairness – it is a fundamental rule of the common law doctrine of procedural fairness that when a person is deprived of some right or interest, that person is entitled to know the case sought to be made against that person and to be given an opportunity to reply – when a statue confers power to destroy or prejudice a person’s rights or interest, the principles of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment – the Mining Act 1971 (SA) has no such words of necessary intendment, therefore the appellants must be afforded the principles of natural justice – the impugned findings of the Judge under section 63T(1)(f) were in breach of the requirements of procedural fairness.
ABORIGINALS - NATIVE TITLE - EXTINGUISHMENT
Appellants submitted that in considering the effect of the mining operations on the respondent’s native title rights and interests in the land, the Judge failed to have regard to the extinguishing or limiting affect of a pastoral lease granted over the land and a Proclamation of the Lake Torrens National Park – whether the Judge erred by assuming the de jure existence of the native title rights and interest claimed by the Respondent when questions concerning their partial or total extinguishment were yet to be judicially determined.
Held (Kourakis CJ): Appeal allowed - Judge failed to discount the weight accorded to the claimed native title rights for the contingency that those claims may not be made good – the Judge ignored the strong evidence that the native title right to exclusively control all access to the land had been extinguished by the prior grant of a pastoral lease and the creation of the Lake Torrens National Park.
Mining Act 1971 (SA) Part 9B, s 6, s 33, s 63S, s 63F, s 63T, s 63W, s 63V, s 74; Native Title Act 1993 (Cth) s 3, s 23C, s 23G, s 28, s 36, s 39, s 41, s 42, s 43, s 61, s 61A, s 81, s 238, Subdivision P, s 251B; Aboriginal Heritage Act 1988 (SA) s 23; Environment, Resources and Development Court Act 1993 (SA) s 3, s 20, s 21, s 30, s 63W; Native Title (South Australia) Act 1994 (SA) s 4, s 13, s 18(3)(c), s 32, s 36I; Commonwealth of Australia Constitution Act 1900 (UK) Chapter III; Race Discrimination Act 1975 (Cth); Mining (Native Title) Amendment Act 1995 (SA); Racial Discrimination Act 1975 (Cth), referred to.
Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596, applied.
Straits Expoloration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, not followed.
Starkey & Anor v State or South Australia & Ors (2011) 109 SASR 223; Starkey & Anor v State or South Australia & Ors (2011) 111 SASR 537; Attorney-General (Cth) v Alinta Ltd (2008) 173 CLR 167; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373; Noth Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595; Western Australia v Ward (2002) 213 CLR 1, discussed.
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Western Australia v Thomas (1996) 133 FLR 124; Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; Pett v Greyhound Racing Association [1969] 1 QB 125; Ainsworth v Criminal Justice Commission (1992) 175 cLR 564; Sullivan v Department of Transport (1978) 20 ALR 323; Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213; Mabo v The State of Queensland (No 2) (1991-2) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; De Rose v South Australia [2002] FCA 1342, considered.
STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS
[2012] SASCFC 121Full Court: Kourakis CJ, Gray and Stanley JJ
KOURAKIS CJ: I gratefully adopt the summary of the facts and the history of the proceedings set out in the judgment of Gray and Stanley JJ.
The primary issue on this appeal is whether the Judge erred by, in general terms, assuming the de jure existence of the native title rights and interests claimed by the respondent, when very real questions concerning their partial or total extinguishment were yet to be judicially determined. For the reasons which I develop below I would hold that in the arbitration of a dispute, when the Federal Court of Australia has yet to exercise its exclusive jurisdiction to determine the native title rights and interests in issue, the weight they are to be accorded on the arbitral determination must reflect the relative strength of the evidence of the existence of those rights and interests. In this case the ERD Court Judge failed to discount the weight accorded to the claimed native title rights for the contingency that those claims may, ultimately, not be made good. In particular the Judge ignored the strong evidence that the native title right to exclusively control all access to the land had been extinguished by the prior grant of the Bosworth Pastoral Lease and the creation of the Lake Torrens National Park.
I would allow the appeal on that ground. I elaborate on my reasons below. I would also allow the appeal on the ground that the Judge failed to consider whether mining should e allowed subject to conditions minimising its impact on native title rights and interests. I give my reasons for so holding in paragraphs [58] to [60]. I would also allow the appeal on the ground of the denial of procedural fairness for the reasons given by Gray and Stanley JJ in paragraphs [143] to [167].
I doubt that this Court is empowered to perform the function conferred on the ERD Court by s 63S of the Mining Act 1971 (SA) (the Mining Act). In any event it is not appropriate that this Court do so in this case. I would therefore remit the matter to the ERD Court for reconsideration in accordance with these reasons.
The Native Title Statutory Scheme
In Mabo v The State of Queensland (No 2)[1] the High Court declared the common law of Australia to be that the vesting of radical title in the English Crown on its colonisation did not eradicate the native title and interests of the indigenous people of Australia. Indigenous Australians continued to enjoy their traditional connection to the land through the practice and observance of their customs and laws and held interests in the land which were recognised by the common law. The elements of the continuing connection which were necessary to sustain native title were further explicated in Members of the Yorta Yorta Aboriginal Community v Victoria.[2]
[1] (1991-92) 175 CLR 1.
[2] (2002) 214 CLR 422.
The High Court in Mabo also held that only such subsequent grants of land made by the executive acts of the Crown in its prerogative, or pursuant to the legislation of the Parliaments of the colonies, and, later, the States and the Commonwealth, as were inconsistent with a native title right or interest extinguished that right or interest. The meaning, in this context, of inconsistency and its legal effect, was further discussed and explained in Western Australia v Ward[3] and Wik Peoples v Queensland.[4]
[3] (2002) 213 CLR 1.
[4] (1996) 187 CLR 1.
The Commonwealth and State Parliaments responded to the declarations of the High Court in Mabo and its subsequent decisions with legislative schemes to regulate the anticipated judicial controversies over land tenure. Those controversies were further complicated by the legal effect of the Race Discrimination Act 1975 (Cth) which invalidated those executive acts and State statutes, made after its enactment, which discriminated against the holders of native title rights and interests.
The primary legislative enactment is the Native Title Act 1993 (Cth). It provided relative legislative certainty as to the nature of native title rights and interests and the validity of past and future legislative and executive acts which derogated from those interests. The Federal Court was given exclusive jurisdiction to determine and declare the continued existence of native title rights and interests.
The land over which native title rights and interest have both survived and not been extinguished in whole or in part, are largely in outback Australia. That land is also land on which great mineral resources have been, and continue to be, discovered. The common law, and later statutory, recognition of the land rights of indigenous Australians, and the judicial procedures established for their vindication, presented obstacles to the exploitation of those resources. Moreover, political, social and economic considerations militated against the relatively simple expedient of conferring legislative paramountcy on one interest over the other. Instead, the Native Title Act 1993 (Cth) enacted an arbitral scheme to resolve the competing claims which might arise.
The determination of any judicial controversy necessarily takes time, both so that the litigants might properly prepare to put their cases fully and fairly and because of the resources, judicial and otherwise, which must be devoted to the task. An arbitral scheme was necessary to regulate access to claimed native title land, primarily for exploration, in the intervening period.
Even after a judicial declaration of native title, an arbitral resolution of the competing rights of native title holders and miners in the broader public interest is required. That resolution necessarily requires striking a balance between the rights and interests of indigenous Australians and the public interest in the conservation and respect of native title rights over land on the one hand, and on the other hand, the public interest in allowing the exploitation of the mineral deposits beneath that land, in the interests of the economic advancement of the Australian community as a whole. The result of that competition of rights and interests was not pre-ordained by the Native Title Act 1993 (Cth) but was to be struck by agreement, or by an arbitrator, in the facts and circumstances of each case.
The Native Title Act 1993 (Cth) enacted a national framework which also contemplated State legislation under which the interested parties could negotiate a compromise. Any agreements which were successfully negotiated were given statutory force and made binding on the successors of the parties to the agreement. The legislative schemes also provided that, in the event of a failure to reach a negotiated settlement, an interested party could request an arbitrated settlement from an independent authority.
Part 9B of the Mining Act is this State’s component of the national scheme. It was enacted by the Mining (Native Title) Amendment Act 1995 (SA) pursuant to the legislative space for State enactments allowed by the Native Title Act 1993 (Cth) (the NTA) as originally enacted. It is necessary to explain in greater detail its operation by reference to its relationship to the NTA. I will refer to the NTA as it was first enacted as NTA(1). Substantial amendments, relevant to this appeal, were made to NTA(1) in 1998. I will refer to the NTA as it stood after those amendments as NTA(2). Where the provisions of the Native Title Act 1993 (Cth) have remained essentially the same notwithstanding the amendments I will refer to those provisions as provisions of the NTA without any numerical suffix to signify that they were not affected by the 1998 amendments.
In summary the NTA provides a scheme whereby the Commonwealth and the States may legislatively validate acts attributable to them which extinguish native title notwithstanding the provisions of the Racial Discrimination Act 1975 (Cth). Acts occurring after 1 January 1994 which extinguish native title are referred to as future acts. The NTA prescribes and limits the circumstances in which future acts may validly affect native title.
Section 23 of NTA(1) provided that permissible future acts were valid “subject to Subdivision B”. Subdivision B of Pt 2, Division 3 (ss 26-44) of NTA(1) applied if a State proposed a permissible future act falling within the scope of s 26(2) NTA, such as granting rights to mine or explore for minerals on shore. Section 28 NTA, provided that future acts which did not comply with Subdivision B were invalid. The requirements of Subdivision B included a determination made under s 38 of NTA(1), by a Commonwealth arbitral body that the act may be done, whether unconditionally or subject to conditions imposed by it. The National Native Title Tribunal (the Tribunal) was established for that purpose. The Commonwealth Minister was empowered to overrule a determination of the Tribunal by s 42 of NTA(1). An appeal was allowed against the determination of the Tribunal to the Federal Court on errors of law alone. The function of the Tribunal in making an award determining which of the conflicting legal rights and interest of the parties should prevail is an essentially arbitral one.
Section 43 of NTA(1) contemplated the enactment of alternative State legislative regimes for the validation of future acts which were to “have effect” if the Commonwealth Minister was satisfied that the alternative regime met the criteria prescribed by s 43(2) NTA(1).
In Western Australia v The Commonwealth (Native Title Act Case)[5] Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ described the operation of s 43 in these terms:[6]
Section 43(1) raises the same problem as that raised by sub-s (3)(b) of s 26. It provides, inter alia:
“If:
(a) a law of a State or Territory makes alternative provisions to those contained in this Subdivision in relation to acts covered by this Subdivision that are attributable to the State or Territory; and
(b) the Commonwealth Minister determines in writing that the alternative provisions comply with subsection (2);
the alternative provisions have effect.”
Sub-section (2) prescribes a list of requirements with which the “alternative provisions” must, in the opinion of the Commonwealth Minister, comply if the Subdiv B procedure and the s 28 conditions are not to apply. Section 43 states the Parliament's intention that acts covered by s 26(2) should not be governed exclusively by Commonwealth law when the Minister is of the opinion that State laws and executive action taken under them satisfy the requirements which the Parliament specifies. When the Minister makes a determination under s 43(1)(b), the Commonwealth law (Subdiv B) is withdrawn pro tanto and the State law is left with a corresponding field of effective operation. The Minister is not empowered to engage but to exercise a power to disengage the operation of s 109. Section 43 of the Native Title Act is valid.
[5] (1995) 183 CLR 373.
[6] (1995) 183 CLR 373 at 473.
The determination of the Commonwealth Minister that Pt 9B of the Mining Act complied with s 43(2) of NTA(1) was gazetted on 18 October 1995. The effect of that determination was to withdraw the operation of Subdivision B of NTA(1) over mining tenements in South Australia, allowing Pt 9B of the Mining Act to validly operate. It follows that the validity of future acts of this State, under the provisions of NTA(1), depended on compliance with Pt 9B of the Mining Act.
NTA(2) varied the distinction between permissible and impermissible future acts, but a future act remained invalid to the extent that it effected native title.[7] Subdivision B of NTA(1) was replaced by Subdivision P of Pt 2 Division 3 of NTA(2). However, the transitional arrangements as between NTA(1) and NTA(2) provided that Pt 9B of the Mining Act was to continue to have effect as if it were an alternative provision authorised by s 43 NTA(2).[8]
[7] NTA(2) s 240A.
[8] Native Title Amendment Act 1998 (Cth) Sch 5, item 14(4).
The provisions of Pt 2 Division 2B of NTA(2) confirmed the past total extinguishment of native title rights and interests by “previous exclusive possession acts” and the partial extinguishment of those rights and interest by “previous non-exclusive possession acts”. An example of an exclusive act is a grant of fee simple, and of a non-exclusive act a grant of a pastoral lease. Section 61A(3) of NTA(2) and s 18(3)(c) of the Native Title (South Australia) Act 1994 (NTSA) provide that no claim may be made for native title rights conferring exclusive possession in relation to any area which has been the subject of a previous non-exclusive possession act.
Under NTA(1) claims for native title could not proceed unless accepted by the Native Title Registrar. If the Registrar determined that the applicant had established a prima facie case[9] the claim was placed on the Register of Native Title Claims.[10] If a registered claim was not resolved by consent it was referred to the Federal Court for determination.[11] On registration the claimants acquired a right to negotiate with proponents of mining activity on the land covered by the registered claim. The right to negotiate entitled them to participate in the process prescribed by Subdivision B of NTA(1) or under an analogous approved State enactment. I consider the legal significance of the “right to negotiate” further in [32]-[39] below.
[9] NTA(1) s 63.
[10] NTA s 66(1).
[11] NTA(1) s 74.
Since the commencement of NTA(2) an application for a native title determination must be made to the Federal Court.[12] Registration continues to confer a right to negotiate even before a native title determination is made. The registration process commences with a referral of the claim to the Native Title Registrar.[13] The Native Title Registrar must assess the assertions of the claimant group to the claimed land by reference to their claimed rights, their origin in pre-sovereignty society and their relevant connection to the land. The Registrar must afford the claimants procedural fairness. From 30 September 1998 the phrase “registered native title rights and interests” in NTA(2) has referred to either judicially determined rights and interests or rights which the Native Title Registrar was satisfied could prima facie be established.[14]
[12] NTA(2) s 61.
[13] NTA(2) s 63.
[14] NTA(2) s 30(3), s 186(1)(g), s 190B(6).
Pursuant to NTA(2) the applicant for a Native Title declaration, who must be a person authorised by, and a member of the Native Title claim group, has statutory authority to “deal with all matters arising under this Act in relation to the application” including the right to negotiate.[15] Upon registration the applicant becomes the “Registered Native Title Claimant” (the native title claimant).[16] The native title claimant is not a separate legal entity but the agent of the unincorporated group of indigenous people who claim to hold the asserted native title rights and interests over the subject land. The members of the unincorporated group are by reason of the statutory agency created by NTA(2), bound by the outcomes of the processes it enacts.
[15] NTA(2) s 62A.
[16] NTA s 253.
The role of the Tribunal in arbitrating disputes between native title claimants and the holders of interests in the land which were subject to their claim was continued by NTA(2).
In the context of the Commonwealth statutory schemes for the determination and regulation of native title one would expect that the equivalent State body, which for South Australia is the Environment, Resources and Development Court (the ERD Court)[17], would, like its Federal counterpart, exercise arbitral or administrative power, and not judicial power, in discharging its function pursuant to s 63S of the Mining Act. The particular provisions of Pt 9B of the Mining Act show that that is so.
[17] The ERD Court is established by the Environment, Resources and Development Court Act 1993 (SA).
First, s 63F of the Mining Act provides that an exploration authority granted under the Mining Act confers no right to carry out mining operations affecting native title on native title land, unless the holder of the authority “acquires” the right to carry out mining operations on the land with that effect by an agreement or by determination of the ERD Court authorising those operations. Claimants in judicial proceedings do not generally “acquire” rights; their rights are determined or declared, and remedies are given for their denial by others.
Secondly, the determinations of the ERD Court may, like those of the Tribunal, be overruled by the Minister.[18] The conferral of that clearly executive power on the Minister to override the ERD Court’s determination is a strong indication that the ERD Courts function is arbitral because, it can be presumed that the legislature would not provide for the administrative overruling of a judicial decision by the executive government.
[18] Mining Act 1971 (SA) s 63W.
Finally, Pt 9B of the Mining Act provides that a determination of the ERD Court has no force or effect until it is registered.[19] On registration it has effect “as if it were a contract between the proponents of the activity and the native title parties”.[20] The contractual effect of the determination is extended beyond the original parties to the proceeding in the ERD Court to the holders, from time to time, of native title in the land to which the determination relates on the one hand and to the successors of the holder of the mining tenement on the other.[21] These provisions show that an award of the ERD Court made pursuant to Pt 9B of the Mining Act creates new rights which are given extended statutory force on registration.
[19] Section 63V(1).
[20] Section 63V(2).
[21] Section 63V(3).
The statutory indicia that the power exercised by the ERD Court is arbitral also suggest that its determinations are not final, not only in the sense that the Minister may override them, but also in the additional sense that they may be challenged collaterally notwithstanding the status of the ERD Court as a court. However, that question need not be further explored here.
The identification of the arbitral nature of the ERD Court’s function elucidates the proper approach to the considerations which it must take into account in making its determination. The duty of arbitrators expressed very generally, is to make an award which creates new rights and obligations reflecting a fair and reasonable resolution of the competing claims of the parties to the arbitration.
Section 63T of the Mining Act prescribes the claims and interests which must be balanced by the ERD Court. A number of the placita of that section refer to “native title rights and interests”. The critical question on this appeal is how the ERD Court should treat those rights and interests when they have not yet been declared by the Federal Court. It is necessary to consider more closely the concept of the “right to negotiate” before returning to answer that question.
The right to negotiate
In North Ganalanja Aboriginal Corporation v State of Queensland (Ganalanja)[22] the High Court considered the nature of the “right to negotiate” which a claimant enjoyed as an incident of the registration of his or her claim. The plurality observed: [23]
Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.
It is erroneous to regard the registered native title claimant's right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and the other rights to which Sub-div B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant's native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests.
[22] (1996) 185 CLR 595.
[23] (1996) 185 CLR 595 at 616.
The status quo to which the High Court refers in that passage is the existing legal position of parties even though there is yet to be a declaration of the rights and interests of native title claimants by the Federal Court in the exercise of its exclusive jurisdiction. The right to negotiate does not confer on native title claimants interests over and above those which can properly be declared to exist in the Federal Court proceedings. Nor, conversely, does it extend the powers granted by Commonwealth or State government mining authorities and licences so as to derogate from the interests of those who do hold native title in the land. In the absence of an agreement or arbitrated settlement the right to negotiate does not, of itself, effect any change in the legal rights and interests of the parties. The “right to negotiate” is, in its legal effect, not a substantive right or interest but a power to vary existing rights or interest, whatever they might be, by engaging the processes of the NTA and Pt 9B of the Mining Act. Part 9B of the Mining Act confers on the parties a power to “contractually” vary their respective rights and interests, and, in the absence of a mutually agreed variation, it empowers the ERD Court to do so. Absent any such variation the Federal Court’s determination of the native title claim will in time create a judicial charter settling the legal controversy over native title and declaring the rights of the native title claimants.
The right to negotiate allows the parties to agree as between themselves, or submit their dispute for arbitration, thereby creating new rights and interests by an agreement or award which resolves their competing claims and substitutes for the status quo a different charter of rights and interests.
In negotiating a settlement the parties, acting rationally, will have regard to the prospects that their respective and conflicting views of the status quo might be reflected in a judicial determination of native title rights and interests by the Federal Court. They will weigh up the strength of their respective cases and the importance to them of the right. If the dispute proceeds to arbitration the arbitrator will approach his or her task in a similar way.
In the context of the administrative power to register native title claims, the High Court in Ganalanja explained:[24]
The Registrar and the President were not exercising judicial power when they formed their respective opinions purportedly under s 63, yet they each formed an opinion adverse to the claim in reliance on the effect of the tenure history of the subject land. That involved the making of findings as to the tenure history and the application of an apprehended legal rule as to the effect of a pastoral lease on native title.
It is by no means foreign to the exercise of an administrative power that the repository of the power should make a finding of fact or act upon a rule of law in deciding whether or in what manner the power should be exercised [Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-414; 24 ALR 577 at 584-585].
[24] (1996) 185 CLR 595 at 622.
The High Court then cautioned against an exercise of the administrative power by the Registrar and President of the Native Title Tribunal to refuse to register a claim which would, in effect, summarily pre-empt a judicial determination. The same concern does not arise in proceedings under Pt B of the Mining Act, but the ERD Court in arbitrating a dispute should nonetheless keep in mind that, irrespective of his or her opinion of the contested issues of fact or law, they might be determined differently by the Federal Court in the exercise of its judicial power. The ERD Court should make an assessment of the strength of the respective cases, but the material before the ERD Court will rarely allow an arbitrator to reach a firm and final opinion on the question.
After forming a view about the strength of a pending native title claim the ERD Court must weigh those rights or interests against the rights and interests of the holders of mining authorities and licences. The ERD Court must find a balance which is in the public interest. In cases which come to the ERD Court for arbitration after the Federal Court has finally made a declaration of native title rights and interests, it is only this latter issue which must be arbitrated.
There is some analogy between the function of the ERD Court under Pt 9B of the Mining Act and the jurisdiction to grant interlocutory injunctions protecting the subject matter of litigation. In the exercise of that jurisdiction the Court will consider both the strength of the competing legal cases and the nature of the injury to their respective interests if the injunction sought were to be granted or refused.[25] The resulting order will reflect the “balance of convenience” between those competing considerations.
[25] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 81-85 [65]-[72].
Section 63T(1)(a)(i)
The first consideration which the ERD Court is required to take into account pursuant to s 63T of the Mining Act is the effect of the proposed mining operation on native title in the land. By s 6 of the Mining Act the expression “native title” has the same meaning it has in the NTSA. Section 4 of the NTSA defines native title to mean the communal group or individual rights and interests of Aboriginal peoples in relation to the land which are possessed under traditional laws and customs which connect the Aboriginal peoples to the land and which “have not been extinguished”.[26]
[26] Native Title (South Australia) Act 1994 s 4(1).
The appellants contend that in considering the effect of the mining operations on the respondent’s native title rights and interests in the land which was the subject of the Exploration Lease, the Judge failed to have regard to the extinguishing or limiting affect of two significant grants made over the native title land. The first was the grant of a pastoral lease granted over much of Andamooka Island on 10 July 1963. I will refer to that pastoral lease as the Bosworth Pastoral Lease.
The High Court in Western Australia v Ward[27] considered the effect of a pastoral lease granted by the State of Western Australia, on similar terms to the Bosworth Pastoral Lease, on native title rights and interests. It held that the grant was inconsistent with the continued existence of a claimed exclusive native title right to control all access to the land. The High Court held that the terms of the pastoral lease were not inconsistent with those of the claimed native title rights and interests which were usufructuary or related to the spiritual observances of the claimants. The High Court in Ward held that those native rights and interests were not extinguished by the grant of the pastoral lease but were subordinated to prevail them in the event of an operational inconsistency between the exercise of those native title rights or interests and the rights and powers held under the terms of the pastoral lease.
[27] (2002) 213 CLR 1.
In De Rose v South Australia,[28] the Federal Court held that the grant of pastoral lease will ordinarily extinguish native title and rights of access to those parts of a pastoral lease on which permanent improvements have been erected.
[28] [2002] FCA 1342 at [215]-[216].
Section 23G of NTA and s 36I of NTSA confirm the effect of the decision in Ward that native title rights and interests which are inconsistent with previous non-exclusive possession acts are extinguished.
The material before the ERD Court made a strong case that the native title right to exclusively control access to the Bosworth Pastoral Lease land had been extinguished. The Bosworth Pastoral Lease was granted before the Racial Discrimination Act 1975 (Cth) and was therefore likely to be an effective and valid land grant. The Bosworth Pastoral Lease is a previous non‑exclusive possession act as defined by the NTA.[29]Section 23C of the NTA and s 36I of NTSA therefore prima facie apply to the lease, and consistently with the decision in Ward, extinguish native title to the extent of any inconsistency.[30] Section 61A of the NTA and s 18(3)(c) of NTSA provide that no claim to exclusive possession may be made in these circumstances unless the act of extinguishment has been reversed.[31]
[29] NTA s 23F, s 4.
[30] See Western Australia v Ward (2002) 213 CLR 1.
[31] NTA s 47, s 47A or s 47B.
The second grant which the appellant contends affected native title rights and interests was the Proclamation of the Lake Torrens National Park (the National Park) on 19 December 1991. The Park was proclaimed pursuant to the National Parks and Wildlife Act 1972 (SA).
In Western Australia v Ward[32] the High Court explained the effect of dedication of land for a public purpose as follows: [33]
[B]y designating land as a reserve for a public purpose, even a purpose as broadly described as “public utility”, the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. … The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used.
[32] (2002) 213 CLR 1.
[33] (2002) 213 CLR 1 at 138 [219].
The establishment of the National Park appears to qualify as a Category D past act and is validated by s 32 NTSA. The non-extinguishment principle, which is defined by s 238 of NTA, would therefore be applicable. [34]
[34] NTSA s 36.
It follows that the material before the ERD Court also founded a strong case that the claimed native title right to exclusively control access to the land forming part of the National Park had been extinguished or placed into abeyance.
Failure to take into account extinguishment
In this case the ERD Court properly had regard to the registration of the respondent’s claims. Having regard to the statutory function exercised by the Registrar of the Tribunal the registration was good evidence of the existence of native title rights and interests. However, the registered interests were expressed to be subject to inconsistent grants including the Bosworth Pastoral Lease and the National Park. The ERD Court Judge accepted that it was not His Honour’s function to make a determination of native title. His Honour said:[35]
It can be accepted then, as Mr Jacobi submitted, that the present inquiry does not invite the court to engage in a determination of native title as such. This follows from the above cases, and because there would be procedural unfairness to other interested parties not joined in the present proceedings, as well as procedural unfairness to the applicants, who could not be expected to have the means or the knowledge of the facts, the land owner or occupier might be better placed to know.
[35] [2011] SAERDC 2 at [121].
The proposition in the first sentence is plainly correct. The enquiry in the ERD Court did not extend to a judicial determination of native title because the ERD Court was not exercising judicial power and because the jurisdiction to declare native title is exclusively vested in the Federal Court. No question of procedural fairness to parties who were not before the ERD Court arose because they would not be bound by the result. Nor would any opinion expressed by the ERD Court operate as a res judicata or issue estoppel between the parties because the ERD Court acts administratively in hearing matters pursuant to Pt 9B of the Mining Act.
The Judge went on to summarise the different contentions of the parties on the proper approach to the existence or otherwise of native title rights and interests:[36]
In effect they [the applicants] submit the inquiry is limited to the rights and interests recognised in the registration process. The Attorney’s submission went a step further by suggesting this court was not bound by the registration decision and therefore “might find it relevant in determining whether there are within the meaning of Thomas (above), “credible native title rights and interests”, and that it might take into consideration “such others as it finds are relevant” and proceed “on the basis of the claimed native title rights both registered and to a lesser extent, unregistered”. The Attorney submitted the court should “give greater weight to registered rights and interests”. The Kokatha support this wider view.
The applicants on the other hand contend the process of considering how the relevant native title rights will be affected by the proposed activity, should also encompass the legal consequences, for the enjoyment of claimed native title rights, of prior actions. Therefore questions of extinguishment or of the application of the “non-extinguishment principle”, are to be taken into account in determining the “effect” (if any) of the proposed action on the native title rights.
…
The resulting task for this court is to consider the effect of the mining operation actually proposed by reference to the evidence adduced with respect to native title in the land: Western Australia v Thomas, Australian Manganese Pty Ltd v Western Australia, Western Desert Lands Aboriginal Corporation v Western Australia. There is no presumption in favour of any one position. I accept greater weight is to be accorded to those interests gaining recognition by registration, but that wider claimed rights are not to be ignored, where there is credible evidence to support them.
Footnotes omitted
[36] [2011] SAERDC 2 at [123], [127].
The approach ultimately adopted by the Judge is evident in his findings on the native title rights claimed by the respondents. The applicant disputed the existence of a right to protect significant sites by excluding others because the Bosworth Pastoral Lease and the Lake Torrens National Park were inconsistent with that right. His Honour rejected that position for the following reasons:[37]
This court must take account of the extent to which native title rights and interests were recognised in the registration process and acknowledge that wider rights are pursued. To proceed to the step of finding such rights extend no further than that acknowledged by registration, would be to pre-empt the function of the Federal Court and widen the inquiry beyond its proper limits. It is sufficient to record for the present that it would be open to the Federal Court to accept an existing right of exclusive possession in the area around Crombie Ridge and Lake Torrens, on the basis of the limited evidence given in this proceeding. The content of that evidence is considered later.
[37] [2011] SAERDC 2 at [123]-[127].
The Judge then turned to the applicants’ contention on the extinguishment of native title rights and interest in the Lake Torrens National Park and said:[38]
The difficulty facing the applicants here is the same as it was when questions of limited rights of exclusion were discussed. To advance too far down the road of extinguishment, partial or non-extinguishment, is to embark upon decision making relating to native title rights and interests, beyond the limits contemplated by Part 9B. …
There is an additional layer of complexity supporting that conclusion owing to s 47B of the Native Title Act (Cth) which if it applies, operates to disregard prior extinguishment by proclamations over vacant crown land. This is a large question exclusively for the Federal Court to adjudicate. The question of partial extinguishment would necessarily entail evidence of prior use, subsequent use and occupation as a dedicated National Park, an examination of the validity and affect of the proclamation and declaration under s 38 and 43 of the National Parks and Wildlife Act, none of which have been the subject of evidence or addressed in these proceedings. Furthermore, the question would require careful legal examination, in light of successive statutory reservations relating to Aborigines.
It follows from this analysis, the fact that the Lake Torrens National Park was created and the nature of the uses and reservations thereunder, are relevant to this inquiry, whereas outstanding questions of extinguishment are not. …
Italics added
Contrary to the observation made in the first italicised passage, a consideration, for the purposes of the arbitration, of the possibility that native title rights of exclusive control had been extinguished, would not have involved a judicial determination of the question.
[38] [2011] SAERDC 2 at [140]-[142].
The Judge was wrong to put to one side, as he did in the second italicised passage, the prima facie case that exclusive possession rights were extinguished by the creation of the National Park. The manifest difficulty that the respondents faced in making out a right to exclude others necessarily, and substantially, reduced the weight which could properly be given to that right for the purposes of the arbitration.
The Judge took the same, with respect, erroneous, approach to the Bosworth Station Pastoral Lease:[39]
This submission suffers the same impediments as the earlier submissions relating to exclusivity and the creation of Lake Torrens National Park, for identical reasons, quite apart from statutory and leasehold reservations in favour of “Aborigines”. These are questions for the Federal Court to resolve. Once again the conclusion is inevitable that the granting of a pastoral lease over a portion of the land concerned and its subsequent uses, remain relevant to this inquiry, but questions of extinguishment, partial or otherwise, do not.
Italics added
[39] [2011] SAERDC 2 at [146].
As a result, the Judge entered upon the task of weighing the respective rights and interests of the applicant and respondents on the premise that the native title rights and interests included, as a matter of certainty, the right to exclude others, as the following passages show:[40]
In the result the proposed drilling will have an effect on the native title in the land to the extent that it will remove the capacity of the Kokatha to confine access and use of the land to those qualified according to their customary laws, compromise their capacity to enjoy and practice in privacy their spiritual beliefs and ceremonies thereon at will, for as little as possibly a year and as much as five. This is because the drill holes themselves constitute a fundamental irretrievable violation of the combined Wati Wilyaru Tjukurpa.
By the same token the extensive efforts to minimise damage, to offset rehabilitation and restore the landscape, together with Straits’ intention to co-operate with the Kokatha on access, the comparatively small area in question and accepting that the Kokatha retain access to enjoy ceremonial activities on this site of importance to them, the conclusion is inevitable that the impingement in the physical and practical sense on their native title to the land will be more than of nuisance value. It does however impinge the capacity to exclude others from the most significant of sites. The effect of the proposed mining operations in the spiritual sense is on the other hand, quite dramatic. What effect these activities will have in relation to the remaining s 63T(1) indicia, is a matter to be considered later.
The Judge was wrong to weigh the relative importance of the claimed native title right to exclude others on the assumption that it had been made good despite the grant of the Bosworth Pastoral Lease and the National Park.
[40] [2011] SAERDC 2 at [163]-[164].
A Further Error
The appellant also submits that the ERD Court Judge failed to have regard to whether an award allowing mining operation, on limited conditions, should be made.
The ERD Court is empowered to impose conditions by s 63S(2)(b) of the Mining Act. In the course of the arbitration, the appellant proposed conditions which addressed the respondent’s concerns about the effect of mining operations on their social, cultural and economic structures. The Judge expressed the view that the conditions were inadequate. The respondents did not accept that any conditions could adequately counter the adverse effect of the proposed operations and for that reason did not “engage in any debate as to conditions of mining”.[41] The Judge took the view that he could not, in light of the respondent’s position, take the matter any further.
[41] [2011 SAERDC 2 at [261].
The Judge erred in failing to consider the question of conditions any further. The strategic position adopted by the respondents could not relieve the Judge of his statutory responsibility to address the question of conditional permission. The Judge was bound to consider whether other conditions, in addition to those proposed by the appellants, might have sufficiently protected the social, cultural and economic structures of the respondent to allow some mining operations to proceed.
Conclusion
For the above reasons and the additional reasons given by Gray and Stanley JJ in paragraphs [143] to [167], I would remit the matter to another Judge of the ERD Court for determination in accordance with these reasons.
GRAY and STANLEY JJ.
The proceedings in this Court arise from a determination made on 14 January 2011 by a District Court Judge sitting as a Judge of the Environment, Resources and Development Court of South Australia.
Straits Exploration (Australia) Pty Ltd and its joint venturer,[42] Kelaray Pty Ltd, the applicants and appellants, initially proceeded by way of appeal from the decision of the District Court Judge. The defendants in the proceedings before the Environment, Resources and Development Court and the respondents are the Kokatha Uwankara Native Title Claimants.[43] The Adnyamathanha people were interveners in the Court below and were named as respondents. However, there was no appearance on behalf of the Adnyamathanha people. The Attorney-General for the State of South Australia intervened on the hearing.
[42] The evidence established that Straits and Kelaray are parties to a joint venture agreement in respect of Exploration Licence 4296. The terms of the agreement, while confidential, provide for Straits to assume a share in the ownership of Exploration Licence 4296 upon undertaking exploratory activities pursuant to Exploration Licence 4296 and bearing the costs of doing so.
[43] In these reasons, where convenient, the Kokatha Uwankara Native Title Claimants are referred to as the “Kokatha people” or “Kokatha”.
Following the lodging of the appeal, a question arose as to whether the matter should proceed as an appeal by way of judicial review. As a consequence, Straits and Kelaray issued judicial review proceedings. By agreement between the parties, both proceedings were heard at the same time and it was further agreed that the materials and submissions the subject of the proceedings could be used by this Court in its consideration of either set of proceedings. It is to be observed that comparable issues arise for consideration under both proceedings.
It was the submission of Straits and Kelaray that the District Court Judge in making his determination had proceeded under a serious misconception of the role that he was to perform. It was contended that he proceeded as though he was dealing with issues arising in a trial requiring resolution by way of judicial determination, whereas in fact he was engaged in the process of making an administrative decision. It was submitted that in the course of the hearing the Judge denied Straits and Kelaray procedural fairness, leading to an unfair hearing. It was also argued that the Judge failed to attend to a matter that he was required to address under the provisions of the Mining Act 1971 (SA) and, in particular, failed to address, either properly or at all, the question of mining being approved on terms.
Background
Straits and Kelaray wish to conduct mining exploration on and near Lake Torrens, South Australia. There are early indications that substantial mineral deposits lie beneath the lake’s surface. Lake Torrens occupies an area of about 5,700 square kilometres and, at most times, is a dry salt flat. The southern tip of Lake Torrens is about 60 kilometres north of Port Augusta and extends north for a further 240 kilometres. Lake Torrens is of significance to indigenous Australians and in particular, to the Kokatha people.
Straits and Kelaray, within the Mining Act regime, sought to negotiate a native title mining agreement with native title parties but were unsuccessful in that endeavour. On 2 August 2010, following the giving of appropriate notices, Straits and Kelaray made application to the Environment, Resources and Development Court of South Australia for a determination authorising mining operations and in particular, authorising exploration by drilling on Lake Torrens at a discrete site in the vicinity of Andamooka Island. The application was brought under Part 9B of the Mining Act.
Jurisdiction under Part 9B is vested in the Environment, Resources and Development Court. This jurisdiction is, inter alia, addressed by the terms of section 63S which relevantly provides:
Application for determination
(1)If agreement between the proponent and the native title parties is not reached within the relevant period, any party to the negotiations or the Minister may apply to the ERD Court for a determination.
…
Once made, a determination becomes enforceable in the manner provided for in section 63V:
Effect of determination
(1) A determination under this Division—
(a) must be lodged with a mining registrar; and
(b) must be registered two months after it was lodged for registration unless it has in the meantime been overruled by the Minister;1 and
(c) takes effect on registration.
(2)A determination registered under this Division has effect as if it were a contract between the proponent and the native title parties.
(3)A registered determination is (subject to its terms) binding on, and enforceable by or against the original parties to the proceedings in which the determination was made and—
(a) the holders from time to time of native title in the land to which the determination relates; and
(b) the holders from time to time of any exploration authority or production tenement under which mining operations to which the determination relates are carried out.
(4)If a native title declaration establishes that the native title parties to whom the determination relates are not the holders of native title in the land or are not the only holders of native title in the land, the determination continues in operation (subject to its terms) until a fresh determination is made, or for 2 years after the date of the declaration (whichever is the lesser).
(5)A determination under this Part that authorises mining operations to be conducted under a future mining tenement is contingent on the tenement being granted or registered.
Note—
1 See section 63W.
Under section 63V(1)(b), the determination of the Court is subject to Ministerial intervention:[44]
Ministerial power to overrule determinations
(1)If the Minister considers it to be in the interests of the State to overrule a determination of the ERD Court under this Part, the Minister may, by notice in writing given to the ERD Court and the parties to the proceedings before the Court, overrule the determination and substitute another determination that might have been made by the Court.
[44] Mining Act 1971 (SA) section 63W.
There is an equivalent power in section 42(2) of the Native Title Act 1993 (Cth), exercisable in “the National interest”.
The proposed exploration relates to the land encompassed by Exploration Licence 4296,[45] granted on 14 October 2009 to Kelaray. The exploration licence covers an area of approximately 295 kilometres, encompassing part of Lake Torrens and the shoreline around and on Andamooka Island to the south-west corner of the area the subject of the licence.
[45] Previously Exploration Licence 3195 and prior to that 2533.
The mining operations envisage seven specific zones, each with a 500 metre radius and occupying an area, in all, of about 0.78 kilometres. According to Straits and Kelaray, these operations will have “miniscule” effect on native title interest. Each drill hole is estimated to take four weeks to complete. The entire Lake Torrens site occupies almost 6,400 square kilometres.
The Kokatha people, at relevant times, have had a claim before the Federal Court of Australia seeking a native title determination over an area within that encompassed by the exploration licence held by Kelaray. This claim was registered by the Native Title Tribunal on 21 August 2010. The native title claim comprises an area bounded by the eastern shore of Lake Torrens itself, Stuarts Creek to the north, East Well Outstation to the centre west and Barker Range to the south. The claim has not been determined.
The History of the Proceedings
The District Court Judge traced the history of the native title process and mining activities in the course of his reasons for judgment. These matters were described as non-contentious and were not the subject of dispute before this Court. We have drawn on this history in the paragraphs that follow.
Since 4 April 1996 the area of Lake Torrens has been subject to native title claims. The area has been the subject of the overlapping native title claims, brought on behalf of the Barngarla, the Kokatha and the Kuyani/Adnyamathanha people. There are two significant mining towns within the claim area – Roxby Downs and Andamooka.
Between the years 1977 and 1982, Western Mining Corporation conducted exploration in the area of what is now exploration licence 4296. This involved drilling three holes; two on Lake Torrens and one on Andamooka Island.
In May 2004, a heritage survey was conducted by Kelaray pursuant to an agreement with the Kuyani claimants. On 30 August 2005, Straits entered into a “work area clearance agreement” with the Barngarla claimants. It appears that the Barngarla claimants approved non-obtrusive ground surveys, but no more drilling was to proceed without further consultation with the Kuyani and Kokatha claimants.
Later, the Andamooka Land Council Association Incorporated indicated that it did “not object to the proposed drilling program”. An Ethnographic Assessment and Consultation Report recommended surveys regarding the proposed drilling project on Lake Torrens.
By December 2006, Straits claimed to have organised site clearances over the region with members of the Clifton family.[46] On 24 August 2007, Straits made an application to the South Australian Minerals and Energy Resources Department for approval to carry out exploration operations pursuant to Schedule C of Exploration Licence 3195. This was approved on 27 September 2007. Meanwhile, Straits was advised with some reservations that “[the Andamooka Land Council Association] is happy to endorse the proposed drill hole on Andamooka Island and two diamond drill holes as described on Lake Torrens”.
[46] Mr Clifton is one of two applicants in the Kokatha native title claim.
By October 2007, Straits had begun drilling operations in conjunction with rehabilitation of the area – notably the collection and disposal of rubbish. It completed a first drill hole on Andamooka Island on 3 December 2007. Straits continued drilling and by 21 January 2008 it had completed a second hole and by 25 February 2008 it had completed a third hole. Straits then ceased drilling operations.
On 19 and 20 April 2008, Kokatha claimant representatives met with Straits in Port Augusta and attended a site inspection at Lake Torrens. On 25 July 2008, they wrote to Straits seeking an explanation for the drilling on Andamooka Island and expressing the claimants’ opposition to it. That letter relevantly provided:
We remind you that the sanctity of Lake Torrens has long been a major concern of Kokatha. Indeed it was the catalyst for the initial native title claim over the area being lodged at the time and in the manner in which it was lodged. We also remind you that this position has been consistently communicated to your clients over recent years.
Straits responded indicating that it was deferring any future negotiations until a proposed new claim was registered by the Native Title Tribunal. At about the same time, the original native title claim over the area encompassing Lake Torrens and Andamooka Island was withdrawn.
On 4 September 2009, Straits sought to negotiate an agreement pursuant to Part 9B of the Mining Act and convened a meeting at Port Augusta.
By 13 October 2009, it was apparent that Straits was contemplating making an application pursuant to section 23 of the Aboriginal Heritage Act 1988 (SA) seeking Ministerial approval to damage, disturb or interfere with an “Aboriginal site” of significance according to “Aboriginal archaeology, anthropology or history”.
By 27 October 2009, Straits had served documents initiating the process under Part 9B of the Mining Act. Between 14 October and 11 December 2009, Straits consulted with various supposed claimants in Port Augusta and Coober Pedy. On 27 November 2009, Straits wrote to the Department of Primary Industries and Resources for South Australia seeking approval for exploration operations.
At a meeting on 19 December 2009, it was made clear that the Kokatha claimants continued to express their strong opposition to the Aboriginal Heritage Act application made by Straits. On 8 January 2011, the Kokatha claimants confirmed their position that any meeting to discuss a Part 9B agreement should be deferred until the Minister had made a decision with respect to the section 23 application.
On 2 March 2010, the exploration program developed by Straits was approved by the Department of Minerals and Energy Resources and on 7 July 2010, by the Minister for Aboriginal Affairs and Reconciliation. These approvals authorised Straits to “damage, disturb or interfere with any Aboriginal sites, objects or remains that may exist on Lake Torrens and a portion of Andamooka Island designated for mining exploration activity” pursuant to section 23 of the Aboriginal Heritage Act.
The Kokatha claimants continued to maintain that, absent a Part 9B agreement, Straits held “no authority under the Mining Act to affect [their] native title rights and interests”. They wrote to the Minister for Aboriginal Affairs and Reconciliation seeking reasons for her decision. Straits continued to seek a further meeting with the Kokatha claimants.
On 2 August 2010, Straits and Kelaray applied in the Environment, Resources and Development Court of South Australia for a determination authorising the mining operations. The Kokatha claimants opposed the application. They claimed that Lake Torrens and the area known as Andamooka Island were of “religious significance” both for them as well as for the wider Western Desert people. This area was said to be the most significant of all sites to the Kokatha people.
On 20 October 2010, the Department of Minerals and Energy Resources approved a further application by Straits to carry out the revised exploration operations pursuant to Schedule C of Exploration Licence 4296.
In Starkey & Anor v State of South Australia & Ors,[47] Robert John Starkey, representing the Kokatha Wati people, and Vince Coulthard, representing the Adnyamathanha people, sought judicial review of the decision of the Minister for Aboriginal Affairs and Reconciliation to review her authorisation made pursuant to section 23 of the Aboriginal Heritage Act. On 17 March 2011, a Judge of the Supreme Court made a finding that the Minister had denied Straits procedural fairness, but declined to grant any substantive relief. On 22 December 2011, this decision was reversed by the Full Court.[48] An order was made in the nature of certiorari quashing the authorisation purportedly given by the Minister to Straits pursuant to section 23 of the Act on 7 July 2010. On 11 May 2012, the High Court refused an application for special leave.
[47] Starkey & Anor v State of South Australia & Ors (2011) 109 SASR 233.
[48] Starkey & Anor v State of South Australia & Ors (2011) 111 SASR 537.
Procedural Issues
Before turning to address the relevant provisions of the Mining Act, it is convenient to discuss several procedural issues. We have drawn on the unchallenged reasons of the District Court Judge in the discussion that follows.
In the Environment, Resources and Development Court, the Adnyamathanha people were given leave to intervene as a third party in order to protect their continued assertion of native title rights over the Lake Torrens area. They formed the Lake Torrens Agreement with the Kokatha Uwankara claim group. The Adnyamathanha people contended that this agreement was one of the “other matters” the Court is entitled to take into account under section 63T(i)(f) of the Mining Act, partly because it may form the basis of a registered consent determination within the meaning of section 63V(3). Accordingly, the thrust of the Adnyamathanha submission in the Environment, Resources and Development Court was that if mining operations were allowed, that should occur “in a manner consistent with the Lake Torrens Agreement”. Effectively they were seeking “reciprocal rights” to those of the Kokatha claimants in the event that conditional mining was approved.
The Attorney-General for the State of South Australia was granted leave to intervene in the Environment, Resources and Development Court proceedings. The Attorney-General sought, inter alia, to protect the decision of the Minister for Aboriginal Affairs and Reconciliation to grant the authorisation pursuant to section 23 of the Aboriginal Heritage Act.
Section 63S of the Mining Act obliges the Court to make its determination on an application within four months “from when the application is made … unless there are special reasons why it cannot do so.”[49] As the application to explore was lodged on 2 August 2010, this “deadline” of 3 December 2010 was passed during the course of the hearing. Nonetheless, the District Court Judge decided that for “a trial of this complexity and consequence”,[50] matters had proceeded expeditiously. The Judge observed:[51]
Although the statutory prescription was breached, it is clear enough from the wording of s 63S and inherent in the expression “special reasons”, that such failure does not invalidate this subsequent determination. Clearly there were “special reasons” why the court could not comply, given the uncontrollable fall of events. The parties accepted this was the position. As the High Court noted in Project Blue Sky Inc v Australian Broadcasting Authority,[52] it is only when it is a purpose of the legislation in question to invalidate an act done in breach of a statutory condition, that such an act would be so rendered.
However this conclusion does not mean the imperative imposed by s 63S had no further influence, no matter how unrealistic or impractical the time specified might appear. On the contrary, the requirement to adhere to a strict time limit, placed the court under a continuing obligation to produce a timely determination, as soon as the circumstances reasonably permitted. The court has therefore proceeded in any case with no less than “all convenient speed”: s 27(3) Acts Interpretation Act 1915 (SA).
[49] The equivalent directive in s 36(1) of the Native Title Act (Cth) is “as soon as practicable”.
[50] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [32].
[51] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [32].
[52] (1998) 194 CLR 355
The jurisdiction and powers exercised under Part 9B of the Mining Act attract the procedures and processes set out in the Environment, Resources and Development Court Act 1993 (SA). These are in a familiar form for specialist courts. They include the facility to conduct hearings with the minimum of formality, unbound by the rules of evidence, and without regard to legal technicalities and forms.[53] There is also the capacity to permit hearings in private, by reason of the confidential nature of the evidence.[54]
[53] See section 21 of the Environment, Resources and Development Court Act 1993 (SA).
[54] See section 20(2) of the Environment, Resources and Development Court Act 1993 (SA).
The Native Title (South Australia) Act 1994 (SA) adds an additional complexity. Both the Supreme Court and the Environment, Resources and Development Court have jurisdiction to determine native title questions. It is undisputed that these proceedings involve such questions. Both Courts have identical general powers to those found in sections 20(1) and 20(2) of the Environment, Resources and Development Court Act.
However, in informing itself about a native title question, the Court must, if there is an established evidentiary practice in the Federal Court for dealing with similar questions, follow the practice of the Federal Court.
The District Court Judge made the following observations in respect of section 13:[55]
Obviously there was no intention to change the rules of evidence, and having grafted applications under Part 9B onto the existing ERD framework, there was obviously no intention to drastically alter established procedures. Thus ss 13(1) and (2) of the Native Title Act (SA) are caste in precisely the same familiar terms as s21 of the ERD Act. Rather, Parliament must have had in mind drawing on the years of collective experience of the Federal Court, as the specialist court exercising “exclusive ... jurisdiction of all other courts except the High Court” in Native Title determinations,[56] as providing the most appropriate model in cases involving “native title questions” of the kind contemplated by s 13.
Clearly then it was intended that the ERD Court should adopt such Federal Court procedures as deal with the management of evidence gathered in native title cases, that is to say as to modes of taking, giving, receiving and dealing with evidence peculiar to native title litigation…
[55] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [37]-[38].
[56] Section 81 Native Title Act 1993 (Cth).
Judicial or Administrative
Earlier in these reasons, we have set out relevant extracts from Part 9B of the Mining Act. It is to be noted that the application of Straits and Kelaray was made pursuant to section 63S. In the event of the Environment, Resources and Development Court making a determination, section 63V provides for the effect of the determination and pursuant to this section, the determination made under Part 9B must be lodged with a Mining Registrar, must be registered two months after it is lodged for registration and takes effect on registration. This is subject to a determination of the Court not being overruled by the Minister charged with the administration of the Mining Act. Section 63V further provides that once registered, the determination has effect as if it were a contract between the proponent and the native title parties. Further, a registered determination is, subject to its terms, binding on and enforceable by or against the original parties to the proceedings and additionally, against the holders from time to time of native title and the holders from time to time of any relevant exploration authority or production tenement.
As earlier noted, section 63V(1)(b) provides that the determination of the Environment, Resources and Development Court is subject to Ministerial intervention. The Minister may have regard to the interests of the State in overruling a determination. The Minister is empowered to substitute another determination that might have been made by the Environment, Resources and Development Court.
These provisions give rise to an inquiry as to the nature of the process being undertaken by the Environment, Resources and Development Court. In the present proceeding, the District Court Judge proceeded with the hearing as though it were a judicial process. All parties to the appeal agreed that the Judge was not performing a judicial function in his determination of the application, rather that he was exercising purely administrative power.
In making this submission, Straits and Kelaray described the District Court Judge as acting as an administrative decision maker creating new rights. The following reasons were advanced in support of this submission. Section 63F of the Mining Act provides for a right being “acquire[d]” by an agreement or determination “authorising” the operations. The natural or ordinary meaning of these words accords with the acquisition or creation of new rights. Pursuant to section 63V of the Mining Act, a determination does not take effect as an order of a court. This may be contrasted with a determination made in the exercise of judicial power.[57] Any breach of the conditions imposed by the determination would constitute a breach of a deemed contract which is enforceable as such, as opposed to proceedings alleging a contempt of court. Accordingly, section 63V replicates the effect given to a determination by the arbitral body under the Native Title Act.[58] Therefore, it was said that in making the determination the Environment, Resources and Development Court created new rights being those embodied in the new deemed contract. Further, it was emphasised that in contrast with an exercise of judicial power, the determination does not derive its binding character from the fact that it was made by a court.
[57] See for example Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 268-269.
[58] See section 41(1) of the Native Title Act 1993 (Cth).
It was further submitted that Parliament cannot validly vest Commonwealth judicial power in a body other than a Chapter III court by virtue of the implied separation of judicial power under the Constitution. Subdivision B of the former Native Title Act and subdivision P of the present Native Title Act vest arbitral power in the arbitral body which is not a Chapter III court. The context in which Part 9B of the Mining Act was enacted suggests, it was said, that the Environment, Resources and Development Court was intended to exercise essentially the same function as the arbitral body under the Native Title Act. To support this submission, Straits and Kelaray highlighted the fact that the criteria prescribed by section 63T of the Mining Act, which the Court must consider, are to the same effect as those prescribed by section 39(1) of the Native Title Act. They also emphasised the intention that Part 9B of the Mining Act would confer on the Court equivalent functions to those otherwise exercised by the arbitral body under the Native Title Act in compliance with section 43(1).
Finally, it was submitted that the power vested by Part 9B of the Mining Act in the Environment, Resources and Development Court is not one which would be characterised as judicial if conferred on a court and would be characterised as executive power if conferred on a body other than a court. It was pointed out that a determination under section 63S is to be made by balancing certain impacts and interests, including broad policy considerations, the economic significance of the proposed act and the public interest. In particular, Straits and Kelaray pointed to the decision of the High Court in Attorney-General (Cth) v Alinta Ltd[59] where the open-ended nature of similar policy considerations was a critical factor that led the Court to find that the power conferred on the Takeovers Panel was non-judicial.
[59] Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542.
Kokatha argued that the issue as to the nature of the Environment, Resources and Development Court’s function was unclear. Attention was drawn to the decision in Precision Data Holdings Ltd v Wills where the High Court observed:[60]
The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.
It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.
Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power. In Re Ranger Uranium Mines the Court said:
“The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.”
The Court was then speaking with reference to an arbitral function of the Conciliation and Arbitration Commission but, as the judgment shows, the remarks apply with equal force to determinations made for administrative, executive or legislative purposes.
[Footnotes omitted.]
[60] Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188.
Kokatha accepted, however, that the better view was that the District Court Judge, in making a determination under section 63S, was exercising administrative rather than judicial power. It was suggested that several factors supported this conclusion. The Environment, Resources and Development Court does not determine existing rights or obligations; controversy about the existence of a right or obligation is the hallmark of the exercise of judicial power;[61] the Court does not make an order that is immediately enforceable or binding of its own effect;[62] the Court’s determination involves the application of broad policy considerations, including the public interest;[63] and finally, determination under section 63S may be overruled by the Minister.[64]
[61] See, Attorney-General for the Commonwealth of Australia v Alinta Ltd (2008) 233 CLR 542, 592; Precision Data Holdings Ltd v Willis (1991) 173 CLR 167, 189.
[62] See, Attorney-General for the Commonwealth of Australia v Alinta Ltd (2008) 233 CLR 542, 599.
[63] See, Attorney-General for the Commonwealth of Australia v Alinta Ltd (2008) 233 CLR 542, 553; Precision Data Holdings Ltd v Willis (1991) 173 CLR 167, 189.
[64] See, section 63W of the Environment, Resources and Development Court Act 1993 (SA).
Sections 63T(1)(b)(i) and 63T(1)(b)(ii) – the effect on the natural environment made by the Court or other bodies – was next considered by the District Court Judge. In this respect the Judge concluded:[79]
These approvals must be given due effect under s 63T(1)(b), bearing in mind that the respective Ministers (or the Minister’s delegate), exercise administrative discretions, according to specific statutory powers, and that those functions are not as wide, diverse or policy free as those exercised by the court in the s 63T(1) process.
The approvals referred to by the Judge were the approvals to the current drilling program of Straits by the Minister for the Environment, Conservation, Mineral Resources and Development and the Minister for Aboriginal Affairs and Reconciliation.
[79] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [215].
The District Court Judge next addressed section 63T(1)(c) – any interests, proposals, opinions or wishes of native title parties in relation to management, use or control. In this respect, the Judge concluded:[80]
Viewed collectively, these convey a clear, consistent, longstanding and explicable message of strong opposition to mining activities in the Lake Torrens vicinity, thus constituting relevant “proposals, opinions or wishes” of relevant native title parties. This consideration weighs significantly in favour of refusing the application.
[80] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [219].
The District Court Judge then turned to section 63T(1)(d) – the economic or other significance to Australia and the State:[81]
Stripped to its essentials, all that has been revealed is that earlier results were hardly promising, whereas the recent results “were very encouraging”, without more. The raw data underpinning this conclusion is not self evident. No analysis of the core samples were referred to by Dr Hanneson, so that his opinion is of value only to the extent that the underlying facts on which it is have been proved: Paric v John Holland (Constructions) Pty Ltd.[82] It has not been possible for the respondent to analyse the worth of such predictions for the very reason that there is no such proof. That also means the court cannot make an informed assessment of worth of the “encouraging results”, because the evidence supporting that conclusion, is not available to it. It is accordingly near impossible to measure the potential National or State dimensions of this project, longer term. Hence the conclusion that the economic or other significance to South Australia or to the Nation, is presently rather slight.
[81] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [236].
[82] (1985) 59 ALJR 844, 846.
The next consideration was section 63T(1)(e) – the public interest in proceedings. In this regard, the District Court Judge concluded:[83]
The reference to Ministerial support and approvals, the Government’s plans for accelerating exploration and the money it has contributed, are relevant manifestations of public interest. Given the size of the Lake Torrens gravity anomaly – that is speaking quantitatively - there is clearly a not insubstantial public interest in testing and assessing the potential, even though quantitatively speaking, there is little to go on at present. As against that there is a substantial public interest in protecting the Kokatha culture and interests by preventing undue intrusions upon their capacity to practice in peace their law and ceremonies on a site most sacred to them. These two opposed aspirations are more or less even, but on balance lean marginally in favour of mining.
[83] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [239].
The District Court Judge then considered section 63T(1)(f) – other matters that the Environment, Resources and Development Court considers relevant. The Judge noted that the terms of this subsection incorporated a wide residual discretion. The Judge described this subsection as a catch all provision. In considering the exercise of this discretion, the Judge was highly critical of the conduct of Straits. The Judge reviewed the drilling that had occurred on the land in question and in particular, the failure to obtain authority and the failure to explain why drilling continued. This led the Judge to conclude:[84]
Either way it is difficult to place any confidence in the capacity of the applicants to comply with legal requirements in the future, despite its plea of having “since 2008 followed the process”.[85] Their position is compounded by the failure to make Departmental enquiries in relation to the site. To allow these significant areas of mis-judgment to pass uncritically, would be to allow Straits to gain from its own indiscretions. The fact is that it was in the period of unauthorised drilling that it acquired the so called data justifying their decision to explore further.
[84] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [253].
[85] T575.16-.17
The District Court Judge then considered what he described as misstatements in declarations of environmental factors, concluding:[86]
Relevant excerpts from the subject documents are quoted extensively above. To a large extent the three versions are template documents, substantially repeating in precisely the same words, identical information each time. At their core, is the unmistakable representation to Government that there were no Aboriginal heritage issues of any concern that should trouble the Government. This was, as we have seen, far from the case. One is forced to contemplate what the Ministerial attitude might have been if the full extent of Kokatha opposition, the failed endeavours to obtain requisite Kokatha consent, and the extent of unauthorised exploration been faithfully reproduced in these documents. Unfortunately they were not. They were incomplete at best and decidedly misleading at worst. This too, is a serious matter.
[86] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [254].
The District Court Judge drew the following conclusions from the above discussion of the factors in section 63T(1):[87]
A considered analysis of the entire gamut of s 63T(1) factors, produce in sum, the following conclusions. The sustained effort to reduce environmental impact and plans for restoration favour approval: (ss(1)(a)(vi)). The economic significance of the project is not all that great either locally or Nationally, but it is a consideration favouring exploration: (ss(1)(d)). The public interest cuts both ways, but in the wash leans towards exploration, if only because the Lake Torrens anomaly remains a tantalising unmasked mystery: (ss 63T(e)). The assessment by Ministers of the Crown also weigh in that direction: s 63T(1)(b)(ii).
The nature of the considerations raised by ss 63T(1)(a)(i) and (iv)), count against approval. Those falling under ss 63T(1)(ii), (iii), (iv) and (v) are more weighty and when combined, tend to outweigh those favouring approval, because of the genuine longstanding and consistently voiced opposition to mining, founded on the undoubted prime importance of the land to the Kokatha and to a lesser extent the Western Desert Bloc people.
If that were not enough, the applicants’ breach of the exploration licence together with their violations of the rights and interests of the Kokatha, especially Straits unacceptable, unforgivable and unaccountable resolve to continue the drilling to further its own ends at the expense of other interests, tell heavily against it: s 63T(1)(f). Their case was not helped by a somewhat jaundiced presentation of the evidence and the affront inherent in the failure to explain why mining continued, compounded by the failure to make those in responsible executive positions accountable.
[87] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [255]-[257].
The District Court Judge finally turned to discuss what he deemed to be “miscellaneous issues”, and in that respect observed:[88]
When it comes to the proposed conditions of mining, the draft proposed by Straits is far too general and much too vague to be enforceable and workable. The regime would have to be tightened to specify time limits for notice to be given by the Kokatha for access to the land and to specify the outer limits thereof. The draft also fails to deal with “the notices to be given … before the land is entered for the purposes of mining operations”, as demanded by s 63S(3)(a) of the Mining Act. It further fails to establish a regime giving the Kokatha the necessary seclusion to conduct ceremonies, such as abandoning the camp during that period of time for instance.
There is an overriding need for automatic forfeiture of the exploration lease in light of Straits and hence Kelaray’s breach of the licence terms requiring compliance with Part 9B, should they stray outside their proposals, or breach the undertakings given regarding the extent of the drilling in general and under or on Crombie Ridge in particular, given the poor track record so far. Further conditions for the dismantling and removal of the campsite on Lake Torrens between Target Zones 2 and 7 are additionally appropriate. Questions of restrictions on alcohol consumption on the campsite should also be agitated. Regrettably the Kokatha refused to engage in any debate as to conditions of mining, so it has not been possible to be any more specific than this.
[88] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [260]-[261].
The above considerations led the District Court Judge to order:[89]
On the application filed on 2 August 2010 for a determination authorising the mining operations referred to therein on the land comprised in Exploration Licence 4296, the court determines that these may not be conducted, pursuant to s 63S(2)(a) of the Mining Act 1971 (SA).
[89] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [264].
The Appeal
Three primary contentions were advanced by Straits and Kelaray that were said to give rise to fundamental problems undermining the determination made by the Judge. It was contended that each alone was sufficient to lead to the setting aside of the determination and the remittal of the matter for reconsideration.
Administrative Not Judicial
It was submitted, as discussed above, that the approach taken by the District Court Judge in his determination was judicial and not administrative. It was said that this approach did not accord with the statutory purpose underlying Part 9B of the Mining Act. That purpose is through an administrative process to make a determination for the purposes of section 63S(2). It is not a judicial determination of a factual dispute.
As earlier discussed, all parties agreed that the District Court Judge had misunderstood his role under the legislation. This misapprehension caused the Judge to embark on a judicial determination of fact, when this was not his role. Had the Judge approached his task in a manner akin to that of an administrative decision maker and addressed the issues arising in the context of the making of an administrative decision, an entirely different resolution to the issues under consideration may well have resulted.
It was argued that the failure of the District Court Judge to consider the exercise of the power conferred by section 63S(2)(b) on the basis that one party would not countenance mining on conditions, evidenced a failure on the part of the Judge to appreciate the unique function it was performing under Part 9B of the Mining Act.
In our view the District Court Judge’s approach to his determination did involve error. In particular, he did not consider adequately or at all the question of whether mining should be allowed on terms.
A review of the Judge’s reasons discloses many adverse findings which reflected seriously upon Straits and its officers and employees, and to a lesser extent, Kelaray and its officers and employees. These findings related to the past conduct of Straits and Kelaray and their officers and employees.
In making these findings, the District Court Judge misunderstood the statutory purpose underlying the balancing exercise to be undertaken under section 63T(1). That purpose cannot extend to the making of findings which, in effect, penalise an applicant under Part 9B of the Mining Act for past conduct, in light of the provisions of section 63V(3)(b). In making its determination pursuant to section 63S, the Court must take into account the matters specified in section 63T(1).
Accordingly, the Judge’s consideration of these matters, and the use made of them in arriving at its determination, was misplaced.
Procedural Fairness
It was submitted that the District Court Judge denied Straits and Kelaray procedural fairness. The substance of this complaint was that the Judge made adverse findings of fact and credit without any notice, or any adequate notice, to Straits or Kelaray or their officers that such matters were under consideration. We consider that the Judge fell into error in denying Straits and Kelaray and their officers and employees procedural fairness.
The contemporary approach to the application of the principles of procedural fairness may be traced to the High Court’s decisions in Kioa v West[90] and Annetts v McCann.[91]
[90] Kioa v West (1985) 159 CLR 550.
[91] Annetts v McCann (1990) 170 CLR 596.
Since the High Court’s decision in Kioa v West,[92] it has been accepted that it is a fundamental rule of the common law doctrine of procedural fairness that, generally speaking, when an order is to be made which will deprive a person of some right or interest, or the legitimate expectation of a benefit, the person is entitled to know the case sought to be made against that person, and to be given an opportunity of replying to it.[93] A “right or interest” in these formulations is to be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. In Kioa v West,[94] Mason J said the concept of “legitimate expectation” extends to expectations which go beyond enforceable legal rights provided that they are reasonably based.[95] Subsequently, however, the High Court has questioned whether, given the development in the Australian common law of the requirements of procedural fairness, the doctrine of legitimate expectations is left to perform any distinct role. In Minister for Immigration and Ethnic Affairs v Teoh, McHugh J observed:[96]
I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker "to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it". If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?
[Footnote omitted.]
[92] Kioa v West (1985) 159 CLR 550.
[93] Kioa v West (1985) 159 CLR 550, 582.
[94] Kioa v West (1985) 159 CLR 550.
[95] Kioa v West (1985) 159 CLR 550, 583.
[96] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 311 – 312.
In Annetts v McCann,[97] it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, the principles of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
[97] Annetts v McCann (1990) 170 CLR 596, 598.
Accordingly, where an administrative decision is made in the exercise of statutory power which affects rights or interests, the person affected is to be afforded procedural fairness subject only to a clear manifestation of a contrary statutory intention.
Where the administrative decision is empowered by statute, the application and content of the requirements of procedural fairness turn on the construction of the statute. The statutory power must be exercised fairly; that is, in accordance with procedures that are fair to the individual considered in light of the statutory requirements, the interests of the individual, and the interests and purposes, whether public or private, which the statute seeks to advance or protect, or permits to be taken into account as legitimate considerations.[98] The statutory framework encompasses the express and implied provisions of the relevant legislation and the inferences of Parliamentary intention to be drawn from the circumstances to which the Act was directed, and from its subject matter.[99]
[98] Kioa v West (1985) 159 CLR 550, 584 – 585.
[99] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 503 – 504.
The precise content of the requirements of procedural fairness which must be observed by a particular administrative decision maker is controlled by any relevant statutory provisions, and may vary according to the circumstances of the particular case.[100]
[100] Kioa v West (1985) 159 CLR 550, 633.
Relevantly, in the context of this matter, the High Court held that procedural fairness requires a decision maker to identify for a person affected, any critical issue to be considered which is not apparent from the nature of the decision or the terms of the statutory power. The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material. Where the decision maker identifies apparent inconsistencies, contradictions or weaknesses in the case of the party before him or her, the decision maker may be obliged to invite the applicants to respond and make supplementary submissions.[101]
[101] Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594, 598.
In Kioa v West,[102] Brennan J described the procedural fairness rule as an implication to be drawn from legislation conferring decision making authority. The implication being that observance of the principles of natural justice conditions the exercise of any statutory power which affects rights and interests.[103] It follows that a breach of the requirements of procedural fairness will constitute a jurisdictional error that will invalidate the administrative decision.
[102] Kioa v West (1985) 159 CLR 550.
[103] Kioa v West (1985) 159 CLR 550, 615; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82, 100 (Gaudron and Gummow JJ with whom Gleeson CJ agreed); Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, 69 (Gleeson CJ and Hayne J); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 353-354.
Straits and Kelaray are persons whose interests are the subject of a determination under section 63S of the Mining Act. There are no plain words of necessary intendment in Part 9B to negative the proposition that natural justice regulates the exercise of the power vested in the Environment, Resources and Development Court. Accordingly, Straits and Kelaray were entitled to procedural fairness in the course of the Court deciding how it would exercise the administrative power contained in section 63S.
Straits and Kelaray complain that a number of the findings of the District Court Judge were made in breach of the requirements of procedural fairness. These findings were all made when the Judge was considering section 63T(1)(f) – any other matter which the Environment, Resources and Development Court considers relevant.
The question of Straits and Kelaray having acted in breach of the terms of their exploration licence so as to be exposed to criminal penalty was not directly raised in the proceedings. Straits and Kelaray were not put on notice that the Judge was considering making such findings. It is to be understood that a party to be charged with a breach of the law involving a criminal sanction should be put on express notice that such a charge is under consideration. For the matter to be raised late in a civil or administrative process without any adequate notice gives rise to a serious want of procedural fairness.
The findings of the Judge in this respect included the following:[104]
…the applicants’ breach of the exploration licence together with their violations of the rights and interests of the Kokatha, especially Straits unacceptable, unforgivable and unaccountable resolve to continue the drilling to further its own ends at the expense of other interests, tell heavily against it: s 63T(1)(f). …
The gravity of these findings is clear. The finding of a breach of exploration licence, although not spelt out by the Judge, may lead to criminal sanctions.
The Judge concluded there to be a violation of the rights and interests of the Kokatha. It is to be appreciated that these findings in respect of the activities of the publically listed corporations have serious legal and commercial implications. Straits and Kelaray should have been on explicit notice that such allegations were being made by another party or being raised by the Judge on his own motion.[105]
[104] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [257].
[105] The findings the subject of complaint are referred to as the impugned findings.
These problems were compounded by the Judge’s use of emotive language including the words “unacceptable, unforgivable and unaccountable”.[106] A review of the proceedings does not reveal that Straits and Kelaray were on any notice or any adequate notice that such findings were under consideration. They should have been made so aware. They should have had the opportunity to know of the allegations and had the opportunity to present evidence and make submissions. These matters gave rise to a serious want of procedural fairness.
[106] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [257].
Given the broad terms of section 63T(1)(f), which the Judge described as “the catch-all” provision,[107] procedural fairness required the Judge to identify any such other matters and the way in which such matters were considered relevant to the refusal of authorisation. The Judge was under an obligation to do so in circumstances and terms which would afford Straits and Kelaray a fair opportunity to be heard. The seriousness of the impugned findings made by the Judge demonstrate the necessity for Straits and Kelaray to have been given a reasonable opportunity to be heard. This would have enabled Straits and Kelaray to address the potential of such adverse findings in advance. This was particularly important as the impugned findings made by the Judge reflected adversely on the reputation of Straits and Kelaray, their officers and employees. It is relevant to record that the findings related to breaches of Part 9B of the Mining Act and the terms of the exploration licence. These breaches, as found by the Judge, had the potential to attract criminal liability[108] and to lead to the cancellation or suspension of the exploration licence.[109] These matters have an obvious and significant consequence for the financial interests of Straits and Kelaray and the future livelihoods of their officers and employees.
[107] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2 at [241].
[108] See section 74 of the Mining Act 1971 (SA): Pett v Greyhound Racing Association [1969] 1 QB 125 per Denning MR at 132 – 133, Davies LJ at 134 and Russell LJ at 135; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 and 592.
[109] See section 33 of the Mining Act 1971 (SA).
The impugned findings of the District Court Judge made in breach of the requirements of procedural fairness, as noted above, were all made under section 63T(1)(f). The seriousness of the impugned findings underscores the necessity for Straits and Kelaray to have been given a reasonable opportunity to address the potential of such adverse findings in advance. The findings reflect upon the reputation of Straits and Kelaray and their officers and employees. The findings also concerned breaches of Part 9B of the Mining Act and of the terms of the exploration licence and, as a consequence, the findings had the potential to attract criminal liability,[110] or, at least, to lead to the cancellation or suspension of the exploration licence.[111] The findings also had obvious consequences for the financial interests of all concerned. By finding that Kelaray was vicariously liable for Straits, the Judge visited upon Kelaray responsibility for the contraventions it found had been committed by Straits. Understandably, Kelaray complained that the issue of its vicarious liability for Straits’ conduct had not been raised in the proceedings prior to the Court delivering its reasons for decision.
[110] See section 74 of the Mining Act 1971 (SA): Pett v Greyhound Racing Association [1969] 1 QB 125, 132 – 133 (Denning MR), 134 (Davies LJ) and 135 (Russell LJ); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 578, 592.
[111] See section 33 of the Mining Act 1971 (SA).
The Kokatha people submitted that Straits and Kelaray were given a reasonable opportunity to address the Environment, Resources and Development Court with respect to the factual issues which gave rise to the adverse findings made in respect of Straits and Kelaray’s past conduct. They submitted that the factual issues which gave rise to the Court’s adverse findings were raised in the evidence and the submissions. In those circumstances, Straits and Kelaray were given a reasonable opportunity to address the Court with respect to those issues.
The Kokatha people submitted that Straits and Kelaray were put on notice through the conduct of the hearing, in particular, by the terms of cross-examination of the witnesses and the Kokatha people’s written submission, that the conduct of Straits in continuing to drill after December 2007 was the subject of criticism and formed a basis for the Judge to refuse to grant the mining authorisation for which it had applied. Furthermore, the Kokatha people’s written submissions contended that the failure to call evidence from those responsible for the drilling demonstrated Straits’ lack of trustworthiness. They submitted that if any of this took Straits and Kelaray by surprise, they had the opportunity to call further evidence and to seek an adjournment for the purposes of addressing these matters. They pointed to the fact that Straits adduced further evidence by filing an affidavit. In short, they submitted that Straits was afforded a “reasonable opportunity” to address the matters raised in the sense identified in Minister for Immigration and Multicultural Affairs v Bhardwaj.[112]Providing a party with a reasonable opportunity to address matters potentially adverse to the party’s case should not be held to “impose the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”.[113]
[112] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611.
[113] Sullivan v Department of Transport (1978) 20 ALR 323, 343; see also Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213, 219-220.
In our view, however, these submissions are not a sufficient answer to complaints of Straits and Kelaray.
Straits and Kelaray were given notice that the Kokatha people were putting in issue the past conduct of Straits, especially its continuation of drilling but they were not given fair notice or a reasonable opportunity to address the trenchant criticisms of their conduct made by the Judge in terms of their “breach of the exploration licence together with their violations of the rights and interests of the Kokatha, especially Straits’ unacceptable, unforgivable and unaccountable resolve to continue the drilling to further its own ends at the expense of other interests.”[114] Nor were they given fair notice or a reasonable opportunity to address damning findings such as Straits’ “consciously” choosing not to reveal its explanation for continuing drilling beyond December 2007,[115] or that representations made by Straits and Kelaray to the government in the declarations of environmental factors were “incomplete at best and decidedly misleading at worst”,[116] or that “it is difficult to place any confidence in the capacity of Straits and Kelaray to comply with legal requirements in the future”.[117] The Court failed to give Straits and Kelaray any indication that its reasons would include findings or conclusions in these terms. Fairness required that it should have done so.
[114] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [257].
[115] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [252].
[116] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [254].
[117] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [253].
In addition, we have referred earlier to the failure of the Environment, Resources and Development Court to give notice to Kelaray that it could be held vicariously liable for the contraventions of Straits. Again, it should have done so.
Furthermore, while it is the case that Straits and Kelaray could have adduced further evidence or sought an adjournment to do so, the Kokatha people’s submission has to be placed in context. While Straits and Kelaray had taken the opportunity late in the proceedings to file a further affidavit of Mrs Jones dated 30 November 2010, this occurred a week prior to the receipt of the final submission of the Kokatha people. This submission was received only the day before closing addresses. There was some urgency to finalise the hearing. It was only upon receipt of the Kokatha people’s final submission that Straits and Kelaray would have been properly put on notice of the terms of the criticisms made of past conduct and the use the Kokatha people invited the Environment, Resources and Development Court to make of them.
Fair notice was not provided by the evidence of the Kokatha people’s witnesses or the cross-examination of witnesses of Straits and Kelaray. We consider that Straits and Kelaray were not afforded sufficient notice. Straits and Kelaray were not given the opportunity to address the terms of the findings and conclusions of the Judge referred to above, some of which the Judge had not been invited to make and some of which were made in terms far more robust than the submissions advanced by the Kokatha people.
As explained earlier, the nature of the impugned findings were so serious, affecting as they did the reputation of Straits and Kelaray and their officers and employees and their financial interests and future livelihoods, that the Judge’s failure to accord procedural fairness constitutes a jurisdictional error which, by itself, invalidates the determination.
In our view, the requirements of procedural fairness necessitated that the District Court Judge should have given Straits and Kelaray fair notice that it had contemplated making findings in the impugned terms, and afforded Straits and Kelaray a reasonable opportunity to address them before the matter was decided. This did not occur.
Inadequate Consideration of Statutory Criteria
It was submitted that the District Court Judge misconstrued the substantive content of the criteria specified in sections 63T(1)(a)(i) and 63T(1)(a)(iv) in failing to recognise that there were no exclusive native title rights and interests that were capable of being exercised on the relevant land. It was said that the Judge also misconstrued the substantive content of the criteria specified in section 63T(1)(e) by assuming a status quo established by a statutory presumption against mining. It was further contended that the Judge misconstrued the substantive content of the criteria specified in section 63T(1)(f) by taking into account and according significant weight to “past conduct” without recognising the effect of such an approach on successors and without making findings about the likelihood of future conduct.
The primary task of the District Court Judge was to assess and determine whether and in what circumstances mining could take place on Lake Torrens. In reaching a determination of the issues, the Judge was not entitled to assume a status quo. The Judge was to have regard to the nature of the claimed native title rights and to examine the nature of the proposed mining and in particular, to look to balance the two. If the Judge reached the view that mining per se could exist along side the proper protection of native title rights, he would then embark on a consideration of the terms on which the mining could take place. The Judge did not embark on such an inquiry adequately or at all. It appears that he reasoned that as the claimants to native title were not prepared to agree to mining on any terms, there was no point in considering mining on terms.
The District Court Judge was highly critical of the bona fides of Straits and Kelaray. He, as noted above, expressed those criticisms in emotive terms. The Judge reasoned that Straits and Kelaray could not be trusted to comply with any conditions that might be imposed in respect of mining. Even if the Judge was correct to conclude that the conduct of Straits and Kelaray was “unforgiveable”,[118] terms could be imposed with respect to future mining with appropriately strict conditions to ensure compliance.
[118] Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2, [257].
As discussed above, in making the above findings, the District Court Judge misunderstood the statutory purpose underlying the balancing exercise to be undertaken under section 63T(1). That purpose does not extend to the making of findings which, in effect, penalise an applicant under Part 9B of the Mining Act for past conduct.
Accordingly, the District Court Judge’s consideration of these matters, and the use he made of them in arriving at his determination, was misplaced.
Conclusion
For these reasons, we would set aside the judgment and orders of the Environment, Resources and Development Court and remit the matter to another Judge of that Court for determination in accordance with these reasons.
5
29
1