The State of South Australia & Anor v Starkey & Ors

[2012] HCATrans 106

[2012] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A3 of 2012

B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

First Applicant

THE MINISTER FOR ABORIGINAL AFFAIRS AND RECONCILIATION

Second Applicant

and

ROBERT JOHN STARKEY

First Respondent

VINCE COULTHARD

Second Respondent

STRAITS EXPLORATION (AUSTRALIA) PTY LTD (ACN 061 614 695)

Third Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 MAY 2012, AT 11.29 AM

Copyright in the High Court of Australia

__________________

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR T.N. GOLDING, for the applicant.  (instructed by Crown Solicitor (SA))

MR B.R.M. HAYES, QC:   If the Court pleases, I appear with my learned friend, MR P. QUINN, for the first respondent.  (instructed by South Australian Native Title Services)

MR W.J.N. WELLS, QC:   If the Court pleases, I appear with my learned friend, MS T.D.M. HEUZENROEDER, for the second respondent.  (instructed by Norman Waterhouse Lawyers)

MR M.C.J. HOFFMANN, QC:   If the Court pleases, I appear for the third respondent.  (instructed by Finlaysons Lawyers)

FRENCH CJ:   Thank you.  Yes, Mr Solicitor.

MR HINTON:   If the Court pleases, in the time allotted to me, there are three things I need to do.  Firstly, I need to seek leave pursuant to rule 3.01 to amend our application for special leave and our draft notice of appeal.  I then will move to make submissions on why the judgment is attended by sufficient doubt as to warrant a grant of special leave, and thirdly, I will come to the question of why, despite there arising in this matter no question of general public importance, it is still a matter of importance in South Australia such that this Court, as the final Court of Appeal for South Australia, should grant special leave.

FRENCH CJ:   Yes.

MR HINTON:   If the Court pleases, I move to the application.  I seek leave to amend the application for special leave and the draft notice of appeal in the terms of the further amended application for special leave at application book page 82, and the amended draft notice of appeal at application book page 89.

FRENCH CJ:   Is that opposed?

MR HAYES:   If the Court pleases, we have opposed it in our submissions, but I have nothing further to say, and there is no argument that I can put in support of that, and that is the same view for the second respondent.

FRENCH CJ:   Very well.  Yes, you have leave to amend, Mr Solicitor.

MR HINTON:   I am grateful, your Honour.  Then, before moving to the judgment, can I make some submissions as to context?  In South Australia, licences to mine or to explore for minerals are granted under the Mining Act 1971. A licence does not permit one to damage, disturb or interfere with an Aboriginal site. An Aboriginal site is defined in the Aboriginal Heritage Act, and your Honours will find the relevant excerpt behind tab 2 of the applicant’s authorities, the second page, “Aboriginal site” meaning “an area of land”, and there is the definition.

Here, Kelaray was granted an exploration licence.  It entered into a joint venture agreement with the third respondent, pursuant to which the third respondent intended to conduct mineral exploration on the area subject of the exploration licence.  The exploration licence, 4296, is wholly contained within the area of Lake Torrens in the north of this State.  It is accepted ‑ ‑ ‑

FRENCH CJ: I think we are reasonably familiar with the factual framework, but coming to the core of it, as I understand the position, what the Full Court did was to say that the Minister’s exercise of the authorisation power under section 23 of the Act was vitiated because of the failure to accord procedural fairness to persons claiming to be traditional owners, and in that claimed capacity, seeking a delegation of the ministerial authority under section 23 in respect of the same lands, those persons having done so in the context of what was set up as a section 13 consultation, which itself conditions the exercise of a power under section 23.

MR HINTON:   Correct.

FRENCH CJ: And you are arguing, are you not, that the Full Court was wrong to condition the exercise of the power under section 23 on the requirement of procedural fairness in relation to the section 6 process, having regard to the fact that the section 6 delegation itself would not condition that power?

MR HINTON:   Correct, that is our primary argument; yes, your Honour.

CRENNAN J:   How are the special leave questions, questions of law of sufficient public importance to warrant a grant of special leave?

MR HINTON: Can I address that this way? The effect of the Full Court’s order is that before an authorisation can now be granted with respect to this exploration licence pursuant to section 23, not only must procedural fairness be afforded to those who made the request for section 6 purposes, but his Honour Justice Stanley also required that if there was some uncertainty as to the identity of the traditional owners, that the Minister was obliged to undertake reasonable investigation. When one looks at the definition of “traditional owner” ‑ ‑ ‑

FRENCH CJ:   That is as part of the process of responding to a request under section 6(2) for delegation?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   It was not in the context of 23, but in the context of section 6(2), was it not?

MR HINTON: That is right, your Honour, but until compliance with 6(2) there could be no exercise of the power in section 23. What I am attempting to do is show ultimately that what we now have is a practical situation where there is, and can be, considerable delay whilst the necessary inquiries are undertaken as to who potentially are the traditional owner?

FRENCH CJ: Am I incorrect in understanding that the Full Court held that the fact that there was a request for delegation pending under section 6(2) would not preclude the ministerial exercise of the power under section 23? The problem in this case had to do with the seven‑month delay and then the Minister saying, I still do not know who you are.

MR HINTON:   That is right, your Honour.

FRENCH CJ:   And that was a procedural fairness issue?

MR HINTON: Correct, a procedural fairness issue going to the section 6(2) request, because procedural fairness for the purposes of the exercise of the power in section 23 is dealt with by section 13 and the requirement to consult the classes of person there detected. So now we have an added component that requires that we not just advise of the uncertainty, but conduct necessary investigations, Justice Stanley tells us at application book 68, paragraph 126.

When we had to conduct necessary investigations as to who the traditional owners are – sorry, your Honours, the last six lines of paragraph 126, appeal book 68.  That is where we get the obligation now, not just to tell the applicants that there is this uncertainty, but to conduct necessary investigations.  The conduct of necessary investigations…..of the definition of “traditional owners” and “Aboriginal tradition” means that we are now in a process not unlike establishing connection for the purposes of native title, and that can require ‑ ‑ ‑

CRENNAN J:   There is a statutory obligation to delegate in certain circumstances.

MR HINTON:   There is, your Honour, yes, but the statutory obligation ‑ ‑ ‑

CRENNAN J:   Well, obviously whatever is required to undertake that statutory task needs to be undertaken.

MR HINTON: Indeed, your Honour, and if one looks at section 6(2) behind tab 2, it does not burden the Minister with having to establish who the traditional owners are. Those making the request bear the responsibility of establishing that they are the traditional owners to whom the power should be delegated, but now Justice Stanley has said, before you can exercise the section 23 power, you have got to undertake these necessary investigations. The practical outcome is that it has the consequence that we must now conduct the sort of inquiry, not the same, but similar to that necessary to establishing connection for the purposes of native title.

CRENNAN J:   Whether he is right or wrong about that, you have still got the issue in this particular case of the seven‑month delay.

MR HINTON: Whether he is right or wrong about that, if our primary submission is right, in that section 6 and its procedural fairness requirements are not in any way connected with section 23, if that is right, then the seven‑month delay does not matter and the section 23 authorisation is valid subject to his Honour’s second ground for holding that it was invalid. I may not be making myself very clear. Our primary submission is that the request under section 6(2) and the procedural fairness requirements for the purposes of that request are separate and distinct to those required for the purposes of section 23. So, section 23 is not in any way conditioned on section 6(2). So, the delay, with respect to the section 6(2) request does not infect the decision made pursuant to section 23.

As to the question of public importance in this State that merits this Court taking the matter, we are in the situation where, foreshadowed by his Honour Justice Stanley at application book 64, paragraph 109, of delay.  By virtue now of having to undertake these inquiries the very reason why his Honour held that the trial judge at first instance and the Chief Justice in Newchurch were correct in their construction has now arisen.  So, there is considerable delay in either the mining company being able to explore or the traditional owners having their delegation made.  In short, nothing happens whilst this inquiry must be undertaken, and if our submission ‑ ‑ ‑

CRENNAN J:   It is paragraph 113 in the judgment of his Honour, to be found at application book 65.  That is what you are attacking?

MR HINTON: Yes, your Honour, that is the error. Repeated at paragraph 121, “the essence of the failure to afford the appellants procedural fairness” identified, paragraph 125 at about line 27 of the page; the failure to inform. We then have over the page in a paragraph I have already taken your Honours to the burdening of the Minister with an obligation. In our submission, the constructional question in this case shows that there is no such obligation and the procedural fairness requirements for section 6(2) do not condition the exercise of the power in section 23. We find ourselves in a very ‑ ‑ ‑

FRENCH CJ:   You have a requirement of reasonable steps to consult with traditional owners under section 13(1), do you not?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   Well that presumably must involve some ascertainment or some inquiry as to whether the people with whom you are consulting are traditional owners.  I am not suggesting it requires a definitive determination, but ‑ ‑ ‑

MR HINTON:   Agreed, your Honour, and hence there was the mail out advising people whom the department considered would fall within the classes in section 13 of the meeting, the consultation meeting in Port Augusta on 19 December.  So we had a class ‑ ‑ ‑

FRENCH CJ:   Are these people who you thought were the ‑ well, it was good enough to consult with these people on the basis that they were within the class of traditional owners, for the purposes of section 13; they were the same people, were they not, who made the request for the delegation?

MR HINTON:   With respect, no.  It was good enough ‑ ‑ ‑

FRENCH CJ:   Was it not a resolution at that meeting?

MR HINTON:   The resolution was from that meeting, but the class was broader than just traditional owners.  For the purposes of section 13 it includes other Aboriginal persons, et cetera.  So the traditional owners, we still do not know who they are, but we set the net broad enough to ensure that at that meeting they were consulted, for the purposes of section 13.  In other words, some of those making the request may well have been traditional owners, some may not have been, but were all the traditional owners part of that request?  We do not know.  If the Court pleases, the practical consideration is the reason why this is a matter that warrants a grant of special leave to this Court, as the last Court of Appeal for the State of South Australia.

FRENCH CJ:   But is this not a problem which really has to do with a conjunction of the perhaps rather difficult interaction of the particular provisions of your statute, along with the particular circumstances of this case?

MR HINTON:   Yes, your Honour, but circumstances ‑ ‑ ‑

FRENCH CJ:   It is not enough to say that the Court of Appeal of the Full Court’s decision is attended by doubt, or sufficient doubt is not a statutory criterion for the grant of special leave.

MR HINTON:   It is not, your Honour, but of course I tell the Court nothing new, in that it sits as the final Court of Appeal for this State.  So it can grant special leave on a matter such as this, where there is that doubt to correct what we say, with respect to the Full Court, is an obvious error and leaves us in this position now where there will be delay.  That does not mean that the Aboriginal people, that they will necessarily have their heritage trodden upon, because ultimately there is still value in pursuing the application for the delegation because, of course, the power to provide an authorisation carries with it the power to revoke.  If the Court pleases, for those reasons and those in our written submissions, special leave should be granted.

FRENCH CJ:   Thank you, Mr Solicitor.  We will not need to call on the respondents. 

On appeal from a single judge of the Supreme Court of South Australia, the Full Court of the Supreme Court held that an authorisation granted by the Minister for Aboriginal Affairs and Reconciliation to a mining company under section 23 of the Aboriginal Heritage Act 1988 was invalid. The Full Court allowed the appeal and issued certiorari to quash the authorisation. The Court did so on the basis that the Minister had failed to accord procedural fairness to persons claiming to be traditional owners for the area affected by the authorisation who had, prior to the authorisation being given, requested that the power of authorisation be delegated to them pursuant to section 6(2) of that statute.

It is common ground that the resolution of a pending request for delegation by persons claiming to be traditional owners of an area is not a condition of the valid exercise of the Minister’s powers with respect to that area under section 23.

While this Court does not necessarily endorse all of the reasoning in the Full Court of the Supreme Court which underpinned the issue of certiorari, it is nevertheless of the opinion that the statute provides processes for the resolution of the present case without the intervention of this Court.  The questions raised on the application for special leave are based on the interaction of particular provisions of the South Australian statute with a particular set of local circumstances.  None of the matters raised by the State, in our opinion, disclose a question of sufficient general importance to warrant the grant of special leave.  Moreover, an appeal to this Court is unlikely to be of sufficient practical utility to warrant that grant.  Special leave will be refused with costs. 

The Court will now adjourn to reconstitute.

AT 11.47 AM THE MATTER WAS CONCLUDED