Straits Exploration (Australia) Pty Ltd v The Kokatha Uwankara Native Title Claimants

[2011] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v THE KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS

[2011] SASCFC 9

Reasons for Decision of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)

8 March 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

ABORIGINALS - NATIVE TITLE - CLAIMS AND DETERMINATIONS

ENERGY AND RESOURCES - MINERALS - MINING FOR MINERALS - INDIGENOUS RIGHTS AND INTERESTS

Application for permission to appeal in private - whether proposed grounds of appeal reasonably arguable - whether an appropriate case for a grant of permission - whether proposed grounds relate to questions of fact - application for permission to appeal allowed in part.

Mining Act 1971 (SA) s 63S, s 63S(1), s 63T; Environment, Resources and Development Court Act 1993 (SA) s 30; Supreme Court Civil Rules 2006 r 290, referred to.

STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v THE KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS
[2011] SASCFC 9

Full Court:  Doyle CJ, White and Peek JJ

1. THE COURT:      This is an application for permission to appeal against a decision by the Environment, Resources and Development Court (ERD Court) made on 14 January 2011.  The Court published detailed reasons for the decision:  Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Ors [2011] SAERDC 2.

2. In brief, the ERD Court considered and decided an application by the applicants under s 63S of the Mining Act 1971 (SA) (the Act). The applicants are corporations engaged in mineral exploration. They hold interests in an Exploration Permit which covers part of Lake Torrens in the northern part of South Australia and part of an island which lies within the lake. The first respondents to the application are registered native title claimants in respect of a large area including the whole of the area covered by the Exploration Permit.

3. Under the Act registered native title claimants have a right to negotiate in relation to proposed mining operations. That meant that the first respondents had a right to negotiate with the applicants. The Act provides by s 63S(1) that if agreement is not reached within the relevant period, any party to the negotiations can apply to the ERD Court for a determination.

4. The applicants applied to the ERD Court for a determination under s 63S that would permit mining operations to be conducted on the relevant land.

5. Section 63T of the Act sets out the criteria that the ERD Court was required to take into account in dealing with the application.

6. The matter proceeded to a hearing in the ERD Court, over some ten days.  The Judge published very detailed reasons.

7. The Judge decided that mining operations could not be conducted on the land.  A very brief summary of his detailed consideration is found in the following paragraphs of the Judge’s reasons:

   [255]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).

   [256]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.

   [257]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.

   …

   [263]In the final analysis there is a geological anomaly below Lake Torrens is [sic] worthy of further investigation.  It is marginally in the public interest to do so.  The potential has been overstated, at least on the basis of the relatively scant material available to the court.  The native title in the land of the traditional owners in preventing mining are significant and genuine.  The extreme significance of the area to the Kokatha has not been sufficiently appreciated and their struggle to have their views considered, have not been accorded adequate recognition, to date.  The fundamental shortcomings of the applicants in the field, the failure to secure adequate consents and the posture of avoiding scrutiny and accountability for precipitous decision making, tell heavily against the proposed mining operations going ahead.

8. Section 30 of the Environment, Resources and Development Court Act 1993 (SA) provides that an appeal lies against the decision to the Full Court of the Supreme Court. The appeal lies as of right on a question of law and with permission on a question of fact.

9. The applicants have filed a detailed Notice of Appeal.  We accept that most of the grounds raise either a question of law or a mixed question of law and fact that, for the purposes of the provision, is to be treated as a question of law. 

10. However, certain grounds of appeal raise issues that in our opinion are simply questions of fact, and require a grant of permission.  While the applicants do not concede that point, their written submissions are directed to these grounds, no doubt anticipating that the Court might conclude that these grounds do raise questions of fact.

11. The applicants argue that it will be artificial to separate these questions of fact from other grounds on which an appeal lies as of right.  They submit that permission should be given on these grounds.  They submit that the questions of fact are not matters within an established expertise on the part of the ERD Court.  We accept that point.  They submit that it should be enough that the proposed grounds are reasonably arguable.  We agree that that is a relevant consideration.  There are in reality two questions.  Are the proposed grounds reasonably arguable, and is it an appropriate case for a grant of permission?

12. The application has been considered by the Full Court pursuant to r 290 of the Supreme Court Civil Rules 2006 without hearing from the respondents.

13. Grounds 5.3 and 12 challenge a finding that relevant native title parties clearly and consistently opposed mining activities in the relevant area.  This is very much a question of fact.  The argument is that there was evidence that members of the native title group had not expressed opposition or had assented to such activities.  To some extent the proposed challenge turns on the manner in which the Judge expressed himself.  We do not read the Judge’s findings as excluding the possibility of different views being expressed on occasions by some individuals.  In our opinion it is not appropriate to grant permission to appeal on these grounds bearing in mind that they would involve the Full Court considering the factual evidence in close detail, and arguably only on a submission that the finding called for some qualification, which the Judge does not necessarily exclude in any event.

14. Grounds 6 and 7 relate to a finding that the proposed exploration activities were of limited economic significance.  The Judge considered both the economic significance of the exploratory drilling in question, and also the prospects of that drilling resulting in the establishment of a substantial mine that would be economically significant.  In relation to the latter point, the Judge considered the difficult question of the likely result of the drilling activity.  The applicants submit that the Judge underestimated the significance of the exploration phase of mining development, and undervalued the prospects of ultimate success.  The Judge’s reasons on this point are summarised at [220]-[236].  The relevant statutory provision posed a difficult issue for the Judge, because there is an obvious distinction between exploration activities and the development that might occur if those activities lead to the establishment of a substantial mine.  The Judge was necessarily grappling with an issue which could not be determined in any way definitively, because no‑one could say whether or not the mine would proceed.

15. We are not persuaded that it is appropriate to grant permission to appeal on this question of fact.  Once again, it was for the Judge to weigh the evidence.  We do not consider that the Judge’s approach to the exploration activity could arguably be said to be wrong.  As to the future, this is very much a matter of estimation and we do not consider it appropriate to grant permission to appeal with a view to persuading the Full Court to make a different forecast.  We emphasise that this issue, and the same can be said of the others, is not of itself decisive of the outcome in the proceedings.  We refuse permission to appeal.

16. Ground 10 relates to criticisms by the Judge of the conduct of the applicants.  These criticisms are alluded to in the Judge’s reasons at [257] and [263], which are set out above.  In one respect these findings are challenged on grounds involving a question of law in ground 9.  The challenge is that there was no relevant obligation under the Act on the part of the applicants.  If this ground succeeds, that is that there was no breach of any obligation as a matter of law, then the relevant findings lose much of their force.  But the applicants wish to argue that the Judge’s findings are wrong in fact.

17. With some hesitation we are prepared to grant permission to appeal on ground 10 because it appears that the Judge gave considerable weight to this issue, indeed this issue might have tilted the scales against the applicants.  We are influenced also by the fact that the Judge has made a finding that the applicants were in breach of their exploration licence, and that is a factual finding that might have some on-going significance.  The Judge’s findings on this topic led him at [253] to conclude that it was “difficult to place any confidence in the capacity of the applicants to comply with legal requirements in the future …”.  That also is a significant finding.

18. In considering the application we have borne in mind the fact that the applicants have already spent a substantial amount on exploration work in the relevant area, and the circumstance that on a most favourable view the exploration could give rise to a substantial mine. We have also borne in mind that the appeal raises issues of some public importance, this being the first application to the ERD Court under s 63S of the Act and the first appeal raising the issues raised. We realise that these issues are likely to be raised in future cases.

19. For those reasons the Court refuses permission to appeal on grounds 5.3, 12, 6 and 7.  The Court grants permission to appeal on ground 10.

20. Before the proposed appeal is set down for hearing, the Court directs that the applicants make application to the Chief Justice for directions to be given relating to the manner in which the exhibits and evidence will be dealt with on the appeal, and with a view to reducing as far as practicable the amount of material to be considered by the Court.