Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia
[2025] FCA 490
•15 May 2025
FEDERAL COURT OF AUSTRALIA
Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490
File number(s): WAD 3 of 2024 Judgment of: HORAN J Date of judgment: 15 May 2025 Catchwords: NATIVE TITLE – right to negotiate – expedited procedure – proposed grant of exploration licences under Mining Act 1978 (WA) – where State of Western Australia gave notice of future acts under s 29 of the Native Title Act 1993 (Cth) – where notices included statement under s 29(7) that State considered the act was an act attracting the expedited procedure – where native title parties lodged objections against inclusion of s 29(7) statement with the National Native Title Tribunal – where native title parties and representative Aboriginal/Torres Strait Islander body applied for judicial review of alleged decisions by State to include expedited procedure statements in the s 29 notices – where applicants alleged that State failed to give active consideration to definition of “act attracting the expedited procedure” in s 237 of the Act – where applicants alleged that State’s policy for including expedited procedure statements in s 29 notices was inconsistent with requirements of the Act – application by State for summary judgment against applicants – whether applicants had reasonable prospect of successfully prosecuting the proceeding – whether proceeding was an abuse of the process of the Court – whether alleged decisions by State to include expedited procedure statements in s 29 notices are reviewable decisions under Administrative Decisions (Judicial Review) Act 1977 (Cth) or are otherwise amenable to judicial review
Held: alleged decisions are not reviewable – summary judgment application allowed
Legislation: Constitution s 51(xxvi)
Administrative Decisions (Judicial Review Act) 1977 (Cth) s 11(1)(c)
Evidence Act 1991 (Cth) s 191
Federal Court of Australia Act 1976 (Cth) ss 31A, 37M, 43(2)
Income Tax Assessment Act 1936 (Cth)
Judiciary Act 1903 (Cth) ss 39B, 213(2)
Native Title Act 1993 (Cth) ss 3, 4, 10, 11, 24AA, 24AB, 24LA, 24MD, 24OA, 25, 26, 26A, 28, 29, 30, 31, 32, 35, 36, 36A, 36B, 36C, 38, 39, 43, 43A, 75, 85A, 139, 141, 142, 143, 144, 145, 147–149A, 150–159, 162, 169, 213, 213A, 226, 227, 233, 237, pt 2 div 3
Native Title Amendment Act 1998 (Cth)
Racial Discrimination Act 1975 (Cth) s 8(1)
Federal Court Rules 2011 (Cth) rr 8.21, 16.53, 26.01(1)(a), 26.01(1)(d), 31.01(3), 31.05, 40.51
Native Title (Recognition as Representative Body – Kimberley Land Council) Instrument 2023 (Cth)
Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth)
Explanatory Memorandum, Native Title Bill 1993
Native Title Bill 1993 (Cth)
Native Title Legislation Amendment Bill 2019 (Cth)
Aboriginal Heritage Act 1972 (WA)
Criminal Code 1899 (Qld) s 672A
Mining Act 1980 (NT)
Mining Act 1978 (WA)
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 196 (entered into force 4 January 1969) Art 1(4)
Cases cited: Adani Mining Pty Ltd (No 2) (2019) 271 FCR 423
Advanced Holdings Pty LtdvCommissioner of Taxation (2020) 281 FCR 149
Agar v Hyde (2000) 201 CLR 552
Akiba v Queensland (2010) 184 FCR 406
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Babscay Pty Ltd v Pitcher Partners [2019] FCA 480
BHP Billiton Nickel West Pty Ltd v KN (Deceased) (2018) 258 FCR 521
Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361
Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257; 78 IPR 586
Byrne v Marles (2008) 19 VR 612
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378
Cheedy v Western Australia (No 2) (2011) 199 FCR 23
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 2 ALD 1
Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864
Corunna v South West Aboriginal Land and Sea Council (No 2) (2015) 235 FCR 53
Danthanarayana v Commonwealth [2016] FCAFC 114
DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth [2020] FCA 958
Duncan v Chief Executive Officer Centrelink (No 2) [2008] FCA 667
DZY v Trustees of the Christian Brothers [2025] HCA 16
East Rockingham RRF Project Co Pty Ltd as Trustee for the East Rockingham RRF Project Trust v Acciona Construction Australia Pty Ltd [2024] FCA 759
Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176
Green v Daniels (1977) 51 ALJR 463
Griffith University v Tang (2005) 221 CLR 99
Guss v Deputy Commissioner of Taxation (2006) 152 FCR 88
Holt v Manzie (2001) 114 FCR 282
Holzinger v Attorney-General (Qld) (2020) 5 QR 314
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Houston v New South Wales [2020] FCA 502
J F Keir Pty Ltd v Sparks [2008] FCA 611
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372
Keasey v Director of Housing (2022) 66 VR 45
Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2) [2018] FCA 2058
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401
Lardil Peoples v Queensland (2001) 108 FCR 453
Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd [2017] FCA 1223
Mabo v Queensland (No 2) (1992) 175 CLR 1
McAleer v University of Western Australia (No 3) (2008) 171 FCR 499
McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278
Minister for Home Affairs v G (2019) 266 FCR 569
O’Mara v Minister for Lands (2008) 167 FCR 145
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33
Portframe Enterprises ATF Gnaraloo Station Trust v Western Australia [2020] FCA 1622
Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Shafran v Secretary of the Department of Veterans’ Affairs [2024] FCA 621; 183 ALD 375
SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Spencer v Commonwealth (2010) 241 CLR 118
Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1
Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507
Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1628
UBS AG v Tyne (2018) 265 CLR 77
Walton v Gardiner (1993) 177 CLR 378
Western Australia v Ward (1996) 70 FCR 265
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Yanunijarra Aboriginal Corporation RNTBC v Western Australia (2020) 276 FCR 53
Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 195 Date of hearing: 16 and 17 May 2024 Counsel for the Applicants: E Nekvapil with T J Hermann Solicitor for the Applicants: Kimberly Land Council Counsel for the Respondent: C I Taggart Solicitor for the Respondent: State Solicitor’s Office of Western Australia ORDERS
WAD 3 of 2024 BETWEEN: YANUNIJARRA ABORIGINAL CORPORATION RNTBC (ICN: 7478)
First Applicant
WALALAKOO ABORIGINAL CORPORATION RNTBC (ICN: 8041)
Second Applicant
MALARNGOWEM ABORIGINAL CORPORATION RNTBC (ICN: 9510)
Third Applicant
KIMBERLEY LAND COUNCIL ABORIGINAL CORPORATION (ICN: 21)
Fourth ApplicantAND: STATE OF WESTERN AUSTRALIA
Respondent
ORDER MADE BY:
HORAN J
DATE OF ORDER:
15 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), summary judgment be given for the respondent against the applicants in relation to the whole of the proceeding.
2.The proceeding is dismissed.
3.Each party is to bear its own costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HORAN J:
INTRODUCTION
This proceeding arises from notices given by the respondent, the State of Western Australia, under s 29 of the Native Title Act 1993 (Cth) (NTA) of the proposed grant of mining tenements over land in respect of which the first to third applicants hold native title rights and interests, and within the area for which the fourth applicant, the Kimberley Land Council (KLC), is the representative Aboriginal/Torres Strait Islander body under Pt 11 of the NTA. Each of the notices relates to the proposed grant of an exploration licence under the Mining Act 1978 (WA).
The proposed grants are future acts that are subject to the “right to negotiate” under Subdiv P of Div 3 of Pt 2 of the NTA. In each case, the notice given by the State under s 29 of the NTA included a statement that the State considers that the grant of the exploration licence is a future act that attracts the expedited procedure (a s 29(7) statement or expedited procedure statement). The inclusion of such a statement in a notice under s 29 of the NTA has the effect that, unless the native title parties lodge an objection with the National Native Title Tribunal (NNTT) within the period of four months after the notification day specified in the notice, the State may proceed to grant the licences without engaging in the “normal negotiation procedure” under Subdiv P. If an objection against the inclusion of the statement is lodged within the four month period, the NNTT must determine whether or not the proposed grant is an “act attracting the expedited procedure” within s 237 of the NTA.
The applicants seek judicial review of alleged decisions made by the State to include in each of the relevant notices a statement under s 29(7) that the State considers the act is an act attracting the expedited procedure. In essence, the applicants contend that, in making a decision to include such a statement in each of the notices, the State was required by s 29(7) to consider and apply the definition of “act attracting the expedited procedure” in s 237 of the NTA, by giving active consideration to the criteria set out in paragraphs (a) to (c) of that definition — namely, that the act is not likely to interfere directly with the carrying on of the community or social activities of the native title holders, nor to interfere with areas or sites of particular significance to native title holders in accordance with their traditions, nor to involve (or create rights whose exercise is likely to involve) major disturbance to any land or waters concerned. The applicants allege that the State failed properly to perform the requisite statutory task, and that the s 29(7) statement in each of the notices therefore has no lawful or legal effect. The relief claimed by the applicants includes orders setting aside each of the decisions to include an expedited procedure statement in the notices given under s 29 of the NTA, and declarations that those statements had no lawful effect.
The applicants also allege the existence of a policy of the State in relation to the inclusion of expedited procedure statements in notices given under s 29 of the NTA since 1 June 2022, and claim that the alleged policy is inconsistent with the applicable provisions of the NTA.
There are two interlocutory applications before the Court for determination.
First, by an interlocutory application filed on 5 April 2024, the applicants seek leave to amend their originating application and concise statement, principally in order to add claims for relief in respect of a notice given by the State under s 29 of the NTA in respect of a further proposed grant of an exploration licence, in circumstances where an objection against the inclusion of the s 29(7) statement in that notice was not lodged in the NNTT within the four month objection period. The applicants also apply for a “maximum costs order” to cap the costs as between party and party that may be recovered for the proceeding to $100,000.
Second, by an interlocutory application filed on 12 April 2024, the State seeks summary judgment to dismiss the proceeding under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) on the ground that the applicants have no reasonable prospect of success, or under r 26.01(1)(d) of the Rules on the ground that the proceeding is an abuse of the process of the Court.
For the reasons set out below, the application by the State for summary judgment against the applicants under s 31A(2) of the FCA Act is allowed, as a result of which the proceeding must be dismissed. I have concluded that the alleged decisions by the State to include an expedited procedure statement in each of the s 29 notices is not amenable to judicial review. In so far as the applicants dispute that the proposed acts attract the expedited procedure, an objection against the inclusion of the s 29(7) statement may be lodged with the NNTT, which must then inquire into and determine whether or not the act is an act attracting the expedited procedure within the meaning of s 237 of the NTA.
I acknowledge the evidence adduced by the applicants that was directed to the additional burdens placed on native title parties and common law holders in having to lodge and maintain objections to the inclusion of expedited procedure statements in s 29 notices given by the State in relation to the grant of exploration licences. In order to obtain the “full” right to negotiate in respect of such future acts, native title parties must lodge objections before the statutory deadline and, unless a satisfactory outcome can be reached by agreement with the grantee party, must then participate in inquiries before the NNTT into the impact of the acts on the native title holders and the land or waters concerned. It is to be hoped, if not expected, that a Government party will only include an expedited procedure statement in a notice given under s 29 of the NTA if it considers the proposed future act “to be suitable for the expedited procedure” on the basis that “it is likely to have no, or only minimal impact on matters of significance to native title holders”: Yanunijarra Aboriginal Corporation RNTBC v Western Australia (2020) 276 FCR 53 (YAC v WA) at [12] (Rares, White and Banks-Smith JJ).
Nevertheless, the inclusion of such a statement in a notice under s 29(7) of the NTA is not a final and operative decision of a substantive nature, nor does it involve a decision or an exercise of power under the NTA. The relevant provisions of Subdiv P operate on the fact that an expedited procedure statement is included in the s 29 notice, and not on any anterior decision by the Government party. Accordingly, the inclusion of an expedited procedure statement for the purposes of s 29(7) is not a reviewable decision, and the applicants’ challenge to the “lawful effect” of such statements in the relevant notices must fail. In the absence of any reviewable decision, the applicants are unable to obtain declaratory relief in relation to the alleged policy of the State regarding the inclusion of s 29(7) statements and the alleged inconsistency of that policy with the requirements of the NTA. Further or alternatively, s 29(7) of the NTA does not itself impose any substantive requirements governing the content of the State’s policy on whether or when to include an expedited procedure statement in a s 29 notice.
FACTUAL BACKGROUND
The applicants
Each of the first to third applicants is a registered native title body corporate (RNTBC) in relation to land or waters in respect of which there are determinations of native title under the NTA.
(a)The first applicant, Yanunijarra Aboriginal Corporation RNTBC (YAC), holds native title rights and interests on trust for the common law holders in relation to an area of land and waters of approximately 100,000 square kilometres in a remote area of Western Australia extending south from the Fitzroy River into the Great Sandy Desert. The common law holders identify as Ngurrara people.
(b)The second applicant, Walalakoo Aboriginal Corporation RNTBC (WAC), holds native title on trust for the common law holders in relation to an area in the Kimberley region of Western Australia, who identify as Nyikina Mangala people. WAC is also the nominated prescribed body corporate in relation to a native title determination application made on behalf of the Boorroola Moorrool Moorrool people.
(c)The third applicant, Malarngowem Aboriginal Corporation RNTBC (MAC), holds native title on trust for the common law holders in relation to an area in Western Australia that is covered by the Malarngowem native title determinations.
The fourth applicant, the KLC, is the native title representative body for the Kimberley area in Western Australia: see the Native Title (Recognition as Representative Body – Kimberley Land Council) Instrument 2023 (Cth) dated 26 June 2023.
The s 29 notices
By a letter dated 30 June 2023 (the Malarngowem notice), the State gave notice to MAC pursuant to s 29 of the NTA of the grant of an exploration licence (E80/5754) to Argyle Corridor Resources Pty Ltd over land or waters in respect of which MAC is the RNTBC. The “notification day” for the purposes of s 29(4)(a) of the NTA was specified as 7 July 2023. The Malarngowem notice contained the following statement for the purposes of s 29(7) of the NTA:
[The Department of Mines, Industry Regulation and Safety] considers that the grant of the lease/licence is a future act that attracts the expedited procedure pursuant to section 32(1) of the NTA. The expedited procedure applies if the grant of the lease/licence in relation to land or waters concerned is an act not likely to:
•interfere directly with the carrying on of the community or social activities of the persons who are holders of native title;
•interfere with areas or sites of particular significance, in accordance with the traditions of the persons who are holders of native title; and
•involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance.”
…
If no objection is lodged then the lease/licence application/s can be granted. If an objection is lodged the NNTT will hold an inquiry to determine whether the act is an act attracting the expedited procedure. In the latter event the NNTT will advise you of the procedures that must be followed by the parties.
By letters dated 8 September 2023 (the Yanunijarra and Walalakoo notices), the State gave notice to YAC and WAC pursuant to s 29 of the NTA of the grant of an exploration licence (E04/2725) to Swiim Holdings Pty Ltd over land or waters in respect of which each of YAC and WAC is the RNTBC. The “notification day” for the purposes of s 29(4)(a) of the NTA was specified as 15 September 2023. The Yanunijarra and Walalakoo notices each contained a s 29(7) statement in identical terms to that contained in the Malarngowem notice (set out above).
On 6 November 2023, MAC lodged with the NNTT an objection under s 32(3) of the NTA against the inclusion of the s 29(7) statement in the Malarngowem notice. In accordance with the prescribed form at that time for an objection to inclusion in an expedited procedure application, the objection included a statement why MAC believed that the proposed grant of the exploration licence was not an act attracting the expedited procedure, and an outline of the type of evidence that MAC would produce to the NNTT, including historical, anthropological, archaeological, genealogical, linguistic and environmental evidence relevant to one or more of s 237(a), (b) and (c) of the NTA. Under the heading “Any other relevant information”, the objection stated:
This objection is made under protest as to the jurisdiction of the Tribunal. The s 29 notice does not comply with the requirements of the NTA, and the s 29(7) statement included within the s 29 notice is ineffective, such that the Tribunal does not have jurisdiction to conduct an inquiry.
On 20 and 21 December 2023 respectively, each of WAC and YAC lodged with the NNTT an objection against the inclusion of the s 29(7) statement in the Yanunijarra and Walalakoo notices. Each of those objections contained a similar statement explaining why WAC and YAC believe that the proposed grant is not an act attracting the expedited procedure and an outline of the type of evidence that WAC or YAC will produce to the NNTT, and each objection contained a paragraph in identical terms indicating that the objection was made “under protest as to the jurisdiction of the Tribunal”.
In respect of the proposed act the subject of the Yanunijarra and Walalakoo notices, Swiim Holdings later withdrew its application for the grant of exploration licence E04/2725. On 8 May 2024, after having been informed by the State that the grantee party had withdrawn the tenement application, the NNTT advised the parties that “the related objection application is also taken to be withdrawn as there is no longer a future act proposed” and that “[a]ll Tribunal records for the matter/s are now finalised”.
On or around 19 June 2023, Uro Western Pty Ltd made an application under the Mining Act for an exploration licence (E80/5931). By letters dated 22 September 2023 (the Second Yanunijarra notices), the State gave notice to YAC pursuant to s 29 of the NTA of the grant of exploration licence E80/5931 to Uro Western over land or waters in respect of which YAC is the RNTBC. The “notification day” for the purposes of s 29(4)(a) of the NTA was specified as 29 September 2023. The Second Yanunijarra notices contained a s 29(7) statement in identical terms to that contained in the Malarngowem notice (set out above).
In contrast to the other s 29 notices, YAC did not lodge an objection with the NNTT against the inclusion of the s 29(7) statement in the Second Yanunijarra notices within the four month objection period. The explanation for this failure to lodge an objection under s 32(3) of the NTA is the subject of evidence from Mr Peter Murray, the former Chief Executive Officer of YAC, and Mr Kevin Tromp, the current Acting General Manager of YAC. It will be necessary to address this evidence in the context of the application for leave to amend the originating application and concise statement in order to seek relief in relation to the Second Yanunijarra notice.
Originating application and concise statement
By an originating application filed on 22 December 2023, the applicants commenced this proceeding under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), s 213(2) of the NTA, the Administrative Decisions (Judicial Review Act) 1977 (Cth) (ADJR Act) and the FCA Act.
Each of the first to third applicants seeks relief under the ADJR Act or the FCA Act including:
(a)an extension of time to lodge the application pursuant to s 11(1)(c) of the ADJR Act;
(b)certiorari or an order “quashing or setting aside the decision of the [State] to purport to include in the [s 29 notice] … a statement that the State considered the act was an act attracting the expedited procedure … purportedly pursuant to s 29(7) of the [NTA]”;
(c)a declaration that the s 29(7) statement “has no lawful effect”, that the NNTT has no jurisdiction to conduct an inquiry in relation to the objections lodged by the applicants against the inclusion of the s 29(7) statement, and that the applicants have the right to negotiate in respect of the grant of the relevant exploration licence “in accordance with s 31(1) of the [NTA]”.
The relief sought by KLC in the originating application includes a declaration that “the policy adopted by the [State] on 1 June 2022, as implemented and applied from that time, including in making the [decisions challenged by the first to third applicants] and other decisions purportedly made from time to time pursuant to s 29(7) of the [NTA] from 1 June 2022 (the 2022 Policy) was inconsistent with the requirements of the [NTA] concerning the inclusion of a statement under s 29(7) of the [NTA]”, and an injunction restraining the State from applying that policy in making any future decision to include a statement under s 29(7) of the NTA.
In their concise statement accompanying the originating application dated 22 December 2023, the applicants contend that the inclusion of a s 29(7) statement in a notice under s 29 of the NTA “switches the procedural track for the particular future act from section 31 (normal negotiation procedure) to section 32 (expedited procedure)”. The applicants contend that s 29(7) and s 237 of the NTA require the Government party, in making a decision to include a s 29(7) statement, to consider whether the future act is an act attracting the expedited procedure in accordance with the definition in s 237 of the NTA, and that this “requires active consideration, on material reasonably available to the Government party”. Accordingly, the applicants contend that the requisite state of mind (i.e. that the Government party considers the act is an act attracting the expedited procedure) must be formed “reasonably, on a correct understanding of the law, and on the basis of some material”.
The applicants relevantly allege that, on or about 1 June 2022, the State adopted the 2022 Policy “concerning its approach to making section 29(7) decisions”, which is alleged to be partly in writing, partly as set out in internal written or oral instructions, and partly as implemented in practice”. The applicants allege that the 2022 Policy involves “an assessment process by the State directed towards identifying future acts comprising mining tenement applications at high risk of a determination by the [NNTT] (as arbitral body, were an objection to be lodged under section 32(3)) under section 32(4) that the act is not an act attracting the expedited procedure”, and that the policy does not otherwise require the State to consider whether a future act is one attracting the expedited procedure in accordance with the requirements of ss 29(7) and 237 of the NTA.
The “primary legal grounds” on which the applicants seek the relief in the originating application are identified as follows in the concise statement:
(a)the alleged 2022 Policy is inconsistent with the task conferred on the State by ss 29(7) and 237 of the NTA;
(b)the decisions to include the s 29(7) statement in the notices given to each of the first to third applicants were decisions to which the ADJR Act applies (decisions of an administrative character made under an enactment);
(c)the State failed to perform the task required by ss 29(7) and 237 of the NTA, and in particular failed to give active consideration to each of the criteria in s 237 on material reasonably available to it, or failed to do so reasonably, on a correct understanding of the law, and on the basis of some available material;
(d)accordingly, the s 29(7) statement in each of the notices has no effect for the purposes of the NTA, including for the purpose of ss 31(1) or 32(1) of the NTA;
(e)the State has acted unlawfully in making s 29(7) decisions since 1 June 2022 in accordance with the alleged 2022 Policy and, unless restrained from doing so, will continue to make such decisions in accordance with the alleged 2022 policy resulting in the unlawful inclusion of s 29(7) statements in s 29 notices; and
(f)the alleged harms suffered by the applicants as a consequence of s 29(7) decisions affecting native title parties represented by or within the representative body area of the KLC include the requirement to participate in inquiries before the NNTT “should the native title party wish to retain the right to negotiate procedure under section 31, and ensure that the Government and grantee parties are required to negotiate in good faith with a view to obtaining the native title party’s agreement”, and that this involves the use of resources (including time and money) and can be taxing and distressing for the native title parties and individuals involved.
Objection to competency
On 22 January 2024, the State filed a notice of objection to the competency of the application. Such a notice is relevantly required by r 31.05 of the Rules, which is principally concerned with applications under the ADJR Act. However, as such applications can be joined with applications for relief of a kind mentioned in s 39B of the Judiciary Act that arises out of, relates to or is connected to the same subject matter (r 31.01(3)), a notice of objection to competency can encompass threshold objections to jurisdiction in relation to the judicial review proceeding more generally. A failure to file a notice of objection to competency may have the consequence of depriving the respondent of an entitlement to costs in the event that the application is ultimately dismissed as incompetent: r 31.05(4).
In the present case, the grounds of the State’s objection to competency are directed to whether the alleged decisions to include s 29(7) statements in the notices were decisions to which the ADJR Act applies, and to the applicants’ standing to seek relief in relation to the alleged decisions or the alleged 2022 Policy.
No application has been made for the question of competency to be heard and determined separately: cf. r 31.05(3). To some extent, the matters raised by the objection to competency are either encompassed within, or otherwise overtaken by, the State’s interlocutory application for summary judgment.
Interlocutory applications
On 5 April 2024, the applicants filed an interlocutory application seeking:
(a)leave to amend the originating application and concise statement; and
(b)an order that, subject to any order the Court may make that each party bear their own costs, the maximum costs as between party and party that may be recovered for the proceeding be $100,000 (maximum costs order).
By the proposed amended originating application, YAC seeks to add a claim for relief in relation to an alleged decision to include a s 29(7) statement in the Second Yanunijarra notices given in respect of exploration licence E80/5931. The amended concise statement pleads that alleged decision and the s 29(7) statement have no effect on the ground that the State failed to perform the task required by ss 29(7) and 237 of the NTA in making the decision. Further, each of the first to third applicants seek to add claims for declarations that the alleged 2022 Policy, “as implemented and applied in making” the decisions to include an expedited procedure statement in each of the relevant notices, was inconsistent with the requirements of the NTA.
On 12 April 2024, the State filed an interlocutory application seeking summary judgment against the applicants under s 31A(2) of the FCA Act and rr 26.01(1)(a) or (d) of the Rules. The State also applied for orders that the applicants pay its costs. In the alternative, the State sought summary judgment separately against each of the applicants, with separate costs orders requiring each of them to pay a proportionate share of the State’s costs.
A considerable volume of evidence has been filed on the interlocutory applications. In so far as this evidence addresses the basis on which the State decided to include s 29(7) statements in the Malarngowem notice, the Yanunijarra and Walalakoo notices and the Second Yanunijarra notices, or the policies and procedures generally followed by the State when issuing notices under s 29 of the NTA, it is unnecessary and inappropriate to resolve any contested factual issues for the purposes of the interlocutory applications. The evidence before the Court on the interlocutory applications is not necessarily complete or exhaustive, nor has the evidence on which each party relies been properly tested by the opposing parties. If the matter were to proceed to trial, there may well be additional evidence, including as the result of discovery or other interlocutory processes. Accordingly, while much of the evidence about the background facts and the State’s policies was not controversial or the subject of significant dispute between the parties on the present applications, I must proceed on the basis that this evidence is not necessarily comprehensive as to the existence or content of any policy developed or followed by the State, or the basis on which the State included an expedited procedure statement in each of the notices.
The applicants relied on the following affidavits:
(a)two affidavits of Justine Toohey, Principal Legal Officer of the KLC and solicitor for the applicants, affirmed on 5 April 2024 and 21 April 2024 respectively, with annexures JMT1 to JMT63;
(b)two affidavits of Kevin Tromp, Acting General Manager and Country Manager of YAC, affirmed on 4 April 2024 and 17 April 2024 respectively, with annexures KT1 to KT10;
(c)two affidavits of Peter Murray, interim Chief Executive Officer of the Kimberley Aboriginal Law and Culture Centre and former Chief Executive Officer of YAC, affirmed on 5 April 2024 and 23 April 2024 respectively (noting that the applicants did not rely on paragraphs 10 and 11 of the first Murray affidavit in the light of the Statement of Agreed Facts referred to below);
(d)an affidavit of Robert Watson, Executive Chair of WAC, affirmed on 18 April 2024;
(e)an affidavit of Tiffany Labuc, General Manager of WAC, affirmed on 19 April 2024, with annexure TL1;
(f)an affidavit of Desley Rogers, a Director of MAC, affirmed on 18 April 2024 with annexures DR1 to DR5; and
(g)an affidavit of Russell Gregory, a Director of MAC, affirmed on 19 April 2024.
The State relied on the following affidavits:
(a)two affidavits of Constance Cocksey, Manager of the Resource Access Branch of the Department of Energy, Mines, Industry, Regulation and Safety, sworn on 29 February 2024 and 11 April 2024, with annexures CEC-1 to CEC-42;
(b)an affidavit of Alicia Nowak, a solicitor at the State Solicitor’s Office, affirmed on 12 April 2024, with annexures ALN-1 and ALN-2; and
(c)an affidavit of Martin Wiedemann, Principal Tenement Consultant at MKII Consulting, sworn on 12 April 2024; and
(d)an affidavit of Sheila Begg, a solicitor at the State Solicitor’s Office, affirmed on 13 May 2024, with annexures SB-1 to SB-5.
In addition, the parties filed a brief Statement of Agreed Facts for the purposes of s 191 of the Evidence Act 1991 (Cth) in relation to the receipt by YAC of the correspondence comprising the Second Yanunijarra notices.
LEGISLATIVE FRAMEWORK
The NTA commences with a Preamble that “sets out considerations taken into account by the Parliament in enacting the law that follows”. Among other things, the Preamble recognises that “the people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement”, and the consequences of their progressive dispossession of their lands. As is acknowledged in the Preamble, the NTA was enacted in response to the High Court’s decision in Mabo v Queensland (No 2) (1992) 175 CLR 1, as a special law for peoples of the aboriginal race within s 51(xxvi) of the Constitution. The Preamble declares the intention of the people of Australia “to rectify the consequences of past injustices by the special measures contained in this Act … for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders” and “to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire”. The Preamble also states that the NTA is intended, for the purposes of Art 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 21 December 1965, 660 UNTS 196 (entered into force 4 January 1969)) (ICERD) and the Racial Discrimination Act 1975 (Cth) (RDA), to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders.
Foreshadowing the future act regime that is established Div 3 of Pt 2 by the NTA, the Preamble relevantly states:
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.
These two purposes of protecting native title and providing certainty for acts affecting native title are reflected in the statutory objects set out in s 3(a) and (b) of the NTA, which provide:
233 Objects
Main objects
The main objects of this Act are:
(a)to provide for the recognition and protection of native title; and
(b)to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; …
Sections 10 and 11 of the NTA provide that native title is recognised, and protected, in accordance with the Act, and is not able to be extinguished contrary to the Act. As North, Dowsett and Jagot JJ said in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (2018) 258 FCR 521 at [22]:
The provisions of the NTA thus govern how the object of the Act specified in s 3(a) (to provide for the recognition and protection of native title) is to be achieved. Similarly, the provisions of the NTA govern how the object in s 3(b) (to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings) may be achieved. The objects are not free-standing. They are not to be achieved other than in accordance with the provisions of the NTA.
Division 3 of Pt 2 of the NTA deals with “future acts”, which are defined in s 233(1) as follows:
233 Future act
Definition
(1)Subject to this section, an act is a future act in relation to land or waters if:
(a) either:
(i)it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or
(ii)it is any other act that takes place on or after 1 January 1994; and
(b) it is not a past act; and
(c) apart from this Act, either:
(i)it validly affects native title in relation to the land or waters to any extent; or
(ii)the following apply:
(A)it is to any extent invalid; and
(B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and
(C)if it were valid to that extent, it would affect the native title.
In other words, a future act is an act that affects native title (or would affect native title if it were valid): see also s 24AA(1). The term “act” is defined in s 226, and relevantly includes “the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument”, and “the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters”: s 226(2)(b), (c). Section 227 provides that an act “affects” native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
Under the NTA, future acts either validly affect native title or are invalid because of native title: see s 4(3)(b). The regime governing future acts contained in Div 3 of Pt 2 of the NTA “provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not”: s 24AA(2). Apart from validity under indigenous land use agreements (ILUA) (see s 24AA(3) and Subdivs B, C and D of Div 3), future acts are only valid if they are covered by the provisions of an applicable subdivision of Div 3 of Pt 2 which is specified in s 24AA(4).
Thus, s 24OA provides that, “[u]nless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title”. Essentially, a future act is valid (in the sense that it validly affects native title) if it is covered by an applicable subdivision in Div 3 of Pt 2 of the NTA. Generally speaking, Subdivs F–N and the provisions therein proceed in a descending order, so that a future act covered by a particular subdivision and section is not covered by a section that is “lower in the list” that is set out in s 24AA(4): see s 24AB(2). The hierarchical structure of Div 3 of Pt 2 culminates in the “finishing point” under s 24OA, which is a “residual provision” dealing with the situation where an act “is not covered by an earlier provision or an expressly stated condition of validity in such a provision (such as the operation of Subdiv P, where so identified as a condition of validity) has not been satisfied”: see BHP Biliton at [28]–[29], [34]–[35] (North, Dowsett and Jagot JJ).
For example, Subdiv M covers acts that pass the “freehold test”, including non-legislative acts that could be done in relation to the land concerned if the native title holders concerned instead held “ordinary title” (i.e. a freehold estate in fee simple or, in the case of land in the Australian Capital Territory or the Jervis Bay Territory, a lease granted by or on behalf of the Commonwealth): ss 24MB(1), 253. If Subdiv M applies to a future act, the act is valid, “subject to Subdivision P (which deals with the right to negotiate)”: s 24MD(1). As is provided by s 24AA(5):
Right to negotiate
(5)In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).
The right to negotiate is governed by Subdiv P, which applies to certain kinds of future acts done by the Commonwealth, a State or a Territory, including certain conferrals of mining rights: s 25(1)(c). By way of an overview of the subdivision, s 25 relevantly provides:
(2)Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. However, in certain circumstances, the Commonwealth, State or Territory can limit its participation in negotiations if the other parties consent.
(3)If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.
(4)If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.
The NTA also accommodates a State or Territory enacting their own laws containing alternative provisions to the right to negotiate regime under Subdiv P, provided that those laws address certain matters to the satisfaction of the Commonwealth Minister: see ss 25(5), 43 and 43A.
As Rares, White and Banks-Smith JJ stated in YAC v WA at [5], Subdiv P “contains a scheme by which future acts by the Commonwealth, a State or a Territory involving, generally speaking, mining activities, may be valid”, and “[t]he evident intention of Subdiv P is to provide a means by which future acts of this kind may be lawfully undertaken, despite their effect on native title, and to provide some certainty as to whether the acts are permitted”. Their Honours continued (at [6]):
The scheme in Subdiv P contemplates four such means: negotiated agreement; governmental decision when an expedited procedure is appropriate; arbitral determination; or ministerial determination. It puts particular emphasis on the parties negotiating an agreement with respect to the carrying out of future acts.
The right to negotiate under Subdiv P relevantly applies (with certain exceptions and exclusions) to future acts that involve the creation of a right to mine, whether by the grant of a mining lease or otherwise: s 26(1A)(c), (1)(c)(i). Such acts will be invalid to the extent that they affect native title unless they satisfy one of the “pathways” set out in s 28(1):
28 Act invalid if done before negotiation or objection/appeal etc.
(1)Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied:
(a)by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;
(b)after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act;
(c)subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;
(d)a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;
(e)native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);
(f)an agreement of the kind mentioned in paragraph 31(1)(b) is made;
(g)a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;
(h)a determination that the act must not be done is declared to be overruled in accordance with section 42.
The starting point is the requirement on the Government party to give notice of the proposed future act to any RNTBC in relation to any of the land or waters that will be affected by the act, along with any registered native title claimant (unless there are one or more RNTBCs in relation to all of the affected land or waters) and any representative Aboriginal/Torres Strait Islander body in relation to any land or waters that will be affected by the act: s 29(2)(a), (b). Any such RNTBC or registered native title claimant is referred to as a “native title party” (see also s 30). If a person has requested or applied for the doing of the act, the Government party must also give notice to that person, who is referred to as the “grantee party”: s 29(2)(c). Finally, the Government party must give notice of the proposed future act to the registrar or other proper officer of the applicable arbitral body, such as the NNTT (s 29(3)) and, unless there is a RNTBC in relation to all of the affected land or waters, either the Government party or the grantee party must notify the public of the act “in the determined way” (s 29(4)).
Notices given under s 29 of the NTA must specify a day as the “notification day” for the act, which “must be a day by which, in the Government party’s opinion, it is reasonable to assume that all notices under subsections (2) and (3) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those subsections”: s 29(4)(a), (6). The notification day is relevant for the calculation of time periods, including in particular the period within which a native title party may lodge an objection against the inclusion in the notice of an expedited procedure statement. The notice must also be accompanied by any prescribed documents and include any prescribed information: s 29(4)(c).
Section 29(7) deals with acts attracting the expedited procedure, and provides as follows:
Acts attracting the expedited procedure
(7)The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.
The phrase “act attracting the expedited procedure” is defined in s 237:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In broad terms, the expedited procedure provides an alternative “pathway” to the validity of a future act under Subdiv P.
The “normal negotiation procedure” applies “[u]nless the notice includes a statement that the Government party considers the act attracts the expedited procedure”: s 31(1). This involves the Government party giving all native title parties an opportunity to make written or oral submissions to it regarding the act: s 31(1)(a). The Government party, any native title parties and any grantee party (the “negotiation parties”) are then required to negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act, or the doing of the act subject to conditions to be complied with by any of the parties: s 31(1)(b). Mediation by the NNTT (or other applicable arbitral body) is available to assist in obtaining an agreement between the parties: s 31(4).
If at least six months have passed since the notification day without any agreement having been made in relation to the act, any negotiation party may apply to the arbitral body for a determination that the act must not be done, or may be done, or may be done subject to conditions to be complied with by any of the parties: ss 35(1), 38(1). The arbitral body must take all reasonable steps to make a determination in relation to the act as soon as possible: s 36(1). If an agreement or a determination has not been made by four months after the application to the arbitral body, the relevant Minister may give a written notice to the arbitral body requesting it to make a determination within a period specified in the notice (which must be at least six months after the application was made to the arbitral body): s 36(4). If there is still no agreement or determination by the end of that specified period, the relevant Minister may be able to make a determination in relation to the act: ss 36A, 36B, 36C. If the arbitral body is the NNTT and it does not make a determination within six months, it must provide the Commonwealth Minister with an explanation of the reasons for not doing so and give an estimate of when the determination is likely to be made: s 36(3).
In making a determination under s 38, the arbitral body must take into account the matters specified in s 39(1), which include matters such as the effect of the act on the native title parties’ enjoyment of their registered native title rights and interests; their way of life, culture and traditions; the development of their social, cultural and economic structures; their freedom of access to the land or waters concerned and their freedom to carry out traditional rites, ceremonies or other activities of cultural significance on the land or waters; any areas or sites of particular significance to the native title parties in accordance with their traditions; their interests, proposals, opinions or wishes in relation to the management, use or control of the affected land or waters; the economic or other significance of the act; and any public interest in the doing of the act.
The “expedited procedure” is set out in s 32 of the NTA, which provides as follows:
32 Expedited procedure
(1)This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).
Act may be done if no objection
(2)If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.
Kinds of objection
(3)A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.
Objections against inclusion of statement
(4)If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
Act not attracting expedited procedure
(5)If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.
Withdrawal of objection
(6)At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.
Withdrawal of statement about expedited procedure
(7)At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.
Salient points to be made in relation to the operation of s 32 of the NTA are:
(a)the expedited procedure applies “if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure”;
(b)the Government party may do the act if:
(i)the native title party or parties do not, within four months after the notification day, lodge an objection with the arbitral body against the inclusion of the expedited procedure statement in the s 29 notice;
(ii)any such objection is withdrawn by the native title party before the arbitral body makes a determination; or
(iii)the arbitral body determines that the act is an act attracting the expedited procedure;
(c)if one or more native title parties lodge an objection within the four month period and the arbitral body determines that the act is not an act attracting the expedited procedure, s 31(1) applies as if the s 29 notice “did not include a statement that the Government party considers the act attracts the expedited procedure” — that is, the “normal negotiation procedure” must be followed; and
(d)the normal negotiation procedure under s 31 must also be followed if the Government party withdraws the expedited procedure statement at any time before the arbitral body makes its determination.
In other words, putting to one side the absence or withdrawal of any objection by the native title parties or the withdrawal by the Government party of the s 29(7) statement, whether or not the normal negotiation procedure must be followed will ultimately turn on the determination made by the arbitral body as to whether the act is an act attracting the expedited procedure within the definition in s 237.
Division 2 of Pt 3 of the NTA deals with applications that may be made to the NNTT in relation to the right to negotiate. Section 75 relevantly provides that an “[e]xpedited procedure objection application” may be made to the NNTT by a native title party, and describes such an application as one “objecting as mentioned in subsection 32(3) against the inclusion of a statement that an act is an act attracting the expedited procedure”.
Section 139(b) requires the NNTT to hold an inquiry into a right to negotiate application covered by s 75. The parties to such an inquiry are the Government party, the grantee parties and, for an expedited procedure objection application, any native title party that has lodged an objection in accordance with s 32(3) and has not withdrawn the objection: s 141(2). Division 5 of Pt 6 of the NTA governs the conduct of inquiries by the NNTT, and includes provisions dealing with the opportunity of parties to present their case and to make submissions in relation to evidence (s 142), representation of parties (s 143), the determination of questions of law arising in an inquiry (s 144), the reference of questions of law to the Federal Court (s 145), powers to dismiss applications (ss 147–149A), the holding of conferences and hearings (ss 150–159). The Tribunal is required to make a determination about the matters covered by a right to negotiate application, and must state in the determination any findings of fact upon which it is based: s 162. A party to an inquiry in a right to negotiate application has a right of appeal to the Federal Court on a question of law from any decision or determination of the NNTT in that proceeding: s 169.
As considered further below, the prospect that a native title party can withdraw an objection against the inclusion of the expedited procedure statement provides a practical opportunity for native title parties and grantee parties to seek to reach an agreement about the manner in which the acts, or activities authorised by the act, are carried out.
It is apparent from the definition in s 237 that the expedited procedure is directed to future acts that are unlikely to involve direct interference with the community or social activities of native title holders, nor interference with areas or sites of particular significance to native title holders, nor major disturbance to any land or waters concerned.
For completeness, it is relevant to note other provisions of the future act regime contained in Div 3 of Pt 2 of the NTA that address future acts with minimal impact on native title rights and interests or on the land or waters in respect of which those rights and interests are held.
(a)First, s 24LA (contained in Subdiv L) deals with “low impact future acts” which take place before an approved determination of native title is made in relation to the land or waters, and do not consist of, authorise or involve matters such as: the grant of a freehold estate; the grant of a lease; the conferral of a right of exclusive possession; excavation or clearing; mining (other than fossicking by using hand-held implements); the construction or placing of buildings, structures or fixtures; or the disposal or storage of garbage or poisonous, toxic or hazardous substances.
(b)Section 26A confers power on the Commonwealth Minister to determine that an act or a class of acts is an “approved exploration etc. act”, where the act “consists of the creation or variation of a right to mine that is a right to explore, prospect or fossick” which is “unlikely to have a significant impact on the particular land or waters concerned”. Before making such a determination, the Commonwealth Minister is required to notify and invite submissions from relevant representative Aboriginal/Torres Strait Islander bodies and the public. The Commonwealth Minister must also be satisfied that RNTBCs, registered native claimants and representative Aboriginal/Torres Strait Islander bodies that will be affected by the act will be afforded the same rights to be notified and to be heard by an independent person or body about the doing of the act as other persons with an interest in the land or waters, and that RNTBCs or claimants will be consulted for the purpose of minimising the impact of the act on the exercise of native title rights and interests.
However, neither of those provisions have any operation in the circumstances of the present case.
APPLICATION FOR SUMMARY JUDGMENT
Section 31A(2) of the FCA Act provides:
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
There is no significant dispute between the parties as to the principles governing the State’s application for summary judgment. It is accepted that the State bears the onus of establishing that the applicants’ claims have no reasonable prospect of success. The relevant inquiry under s 31A(2) is whether there is a “reasonable” prospect of prosecuting the proceeding, as opposed to “whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer v Commonwealth (2010) 241 CLR 118 at [52] (Hayne, Crennan, Kiefel and Bell JJ), see also at [22] (French CJ and Gummow J). In other words, certainty of failure on the applicants’ part is not required in order for a respondent to succeed on an application for summary judgment: Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1628 at [2] (Bromwich J). Section 31A(3) expressly provides that the proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. Nevertheless, the power to dismiss an action summarily must be exercised with caution or “great care”: Spencer at [24] (French CJ and Gummow J), [60] (Hayne, Crennan, Kiefel and Bell JJ); see also Danthanarayana v Commonwealth [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ).
The present case is not one where there is “unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment”: cf. Spencer at [22] (French CJ and Gummow J). Although the State has put on substantial evidence about its policies and procedures in relation to the inclusion of expedited procedure statements in s 29 notices, it cannot be said that such evidence is unanswerable or beyond any challenge or elaboration at trial. Thus, in my view, there may remain real questions of fact about the alleged 2022 Policy and the basis on which the State included the s 29(7) statements in the relevant notices. The applicants would be entitled to take advantage of the “usual interlocutory processes” before any final determination of those facts at a trial in the proceeding: see Spencer at [24] (French CJ and Gummow J), referring to Agar v Hyde (2000) 201 CLR 552 at [57] (Gaudron, McHugh and Hayne JJ); cf. Spencer at [48] (Hayne, Crennan, Kiefel and Bell JJ).
However, that does not exhaust the possible scope of s 31A(2) of the FCA Act. Summary judgment may also be granted where it is clear that “the pleadings disclose no reasonable cause of action and their deficiency is incurable”, or where it is clear as a matter of law that the facts pleaded by a party do not entitle the party to the relief sought: see Spencer at [21]–[22] (French CJ and Gummow J), referring to Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1 at [94]–[95] (Lord Hope). Thus, irrespective of the facts that may ultimately be established in relation to the alleged s 29(7) decisions the subject of the originating application and the State’s policy in relation to the inclusion of expedited procedure statements in s 29 notices given under the NTA, there is a threshold question of law as to whether the case pleaded by the applicants involves any decisions that are amenable to judicial review.
Where the relief claimed by a party to a proceeding depends on their success on a question of law, the Court may be presented with a choice as to whether it is appropriate for that question to be resolved on an application for summary judgment.
In opposing the State’s interlocutory application in the present case, the applicants submit that there is a sufficient prospect of their preferred construction of s 29(7) of the NTA being accepted such that the matter ought to proceed to trial. There is some support in the authorities for such an approach, at least where the legal questions are sufficiently arguable. For example, in Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at [48], Reeves J said:
[A]s a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.
(Emphasis added.)
See also Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [29(d)] (McKeracher J).
In Spencer, French CJ and Gummow J (at [25]) appeared to contemplate that summary dismissal would be more suited to cases in which the legal position is clear, and that existing authority at first instance or even at intermediate appellate level might not be determinative:
Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
However, any such resort to “the development of the law” may only be taken so far — see Advanced Holdings Pty LtdvCommissioner of Taxation (2020) 281 FCR 149 at [74], where Steward J (with whom Allsop CJ and Bromwich J agreed) said:
Nor can an applicant avoid summary judgment in every case by making a simple proclamation that it wishes to develop the law before the High Court. If such a submission were to be made to a primary judge, in applying s 31A that judge would still need to assess the probability of that development taking place in determining whether the applicant had reasonable prospects of success.
As addressed below, the State submits that the present case is one in which the questions raised by the proceeding are “well settled on authority” such that the question whether the applicants have a reasonable prospect of success can be readily determined without the necessity for a full trial. On the other hand, the applicants submit that any existing authorities against them either can be distinguished or are plainly wrong. On the applicants’ submissions, the questions of law on which their success depends are difficult, serious and important and their resolution requires lengthy argument.
Even accepting for present purposes that there are arguable questions of law concerning the construction of s 29(7) of the NTA and the amenability to judicial review of expedited procedure statements in s 29 notices, it remains necessary to consider whether the arguments are sufficiently strong to warrant the matter going to trial, or whether the legal issues can be resolved at a summary hearing “in the interests of saving costs and time”: see Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257; 78 IPR 586 at [28] (Emmett J).
In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [131], Gordon J recognised that it may be appropriate to determine an arguable question of law in order to exercise the power to give summary judgment against a party. After having noted that it is unlikely that a proceeding or part of a proceeding will have no reasonable prospect of success where there is a real issue of fact relevant to the pleaded cause of action, Gordon J continued:
By contrast, the existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, “argument, perhaps even of an extensive kind” was permitted “to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed”: [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125] at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.
Similarly, Rares J in Jefferson Ford (at [73]) appeared to acknowledge the Court’s discretion to determine a question of law as a qualification on the principle that a matter ought to be allowed to go to trial if the applicant can establish that there is a real issue of fact or a real issue of law capable of being decided in its favour. The existence of such a judicial discretion was also supported by Finkelstein J (at [23]), who said:
On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done — see Rosser v Austral Wine & Spirit Company Pty Ltd [1980] VR 313 at 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.
The observations of Finkelstein J and Gordon J respectively in Jefferson Ford were synthesised as follows by Emmett J in Bradken Resources at [28]:
The object is not simply to determine whether the argument is hopeless, but whether the argument is sufficiently strong to warrant the matter going to trial. If the Court can resolve contested legal issues at a summary hearing, without undue delay, it may be preferable to do so in the interests of saving costs and time. Where there is a real issue of law, the Court can hear and decide it without the need for a trial or evidence. Once the issues of law are resolved, it may be clear, one way or the other whether the matter should be allowed to go to trial.
The approach of Gordon J in Jefferson Ford in relation to the resolution of disputed issues of law on an application for summary judgment has not received universal agreement: see e.g. J F Keir Pty Ltd v Sparks [2008] FCA 611 at [52] (Graham J). In this regard, it remains open to a party to apply for the separate hearing and determination of a question that, if it substantially disposes of the proceeding or renders unnecessary the further trial of the proceeding, may found an application for judgment or an order dismissing the whole or any part of the proceeding: see rr 30.01 and 30.02 of the Rules.
Nevertheless, the comments made by Gordon J in Jefferson Ford have been endorsed and applied in several recent decisions of this Court: see Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361 at [11] (Kennett J); Shafran v Secretary of the Department of Veterans’ Affairs [2024] FCA 621; 183 ALD 375 at [76] (Banks-Smith J); see also East Rockingham RRF Project Co Pty Ltd as Trustee for the East Rockingham RRF Project Trust v Acciona Construction Australia Pty Ltd [2024] FCA 759 at [95] (Feutrill J); Portframe Enterprises ATF Gnaraloo Station Trust v Western Australia [2020] FCA 1622 at [59], [63] (Griffiths J); Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd [2017] FCA 1223 at [10] (Gleeson J).
The approach of determining a contested question of law on an application for summary judgment may in some cases be analogous to a proceeding by way of demurrer, in which the legal merits of a claim or defence are finally determined on the basis of the material facts alleged by the pleadings. However, as Rares J pointed out in Jefferson Ford (at [69]–[70]), a demurrer can be distinguished from the determination of a question of law on a summary judgment application under s 31A of the FCA Act, which turns on whether there is a reasonable prospect that the relevant claim or defence will be successfully prosecuted or defended.
Accordingly, in circumstances where it is generally accepted that the exercise of the power to give summary judgment under s 31A of the FCA Act is “not limited to simple cases” (see Babscay Pty Ltd v Pitcher Partners [2019] FCA 480 at [14] (Middleton J); SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 at [115] (Flick J)), it is open to the Court to consider the merits of an issue of law in determining whether or not it is appropriate to give summary judgment under s 31A of the FCA Act. While there are cases in which it may be preferable to defer the resolution of the issue to a final hearing, there are other cases in which “a pure question of law can often be decided just as conveniently and authoritatively on a summary dismissal application as on any other occasion”, particularly where the question does not depend on any evidence that may be adduced at the final hearing: Binqld Finances at [11] (Kennett J). In such circumstances, “the fact that the arguments on the point are complex and require detailed review of the case law does not prevent a firm view as to the correct answer being reached and given effect”: ibid. Ultimately, it remains a matter in the exercise by the Court of its discretion under s 31A of the FCA Act, having regard to all of the circumstances of the case, including “whether the point or question is novel, what is at stake for the parties, and the cogency of the parties’ arguments on each side of the question”: DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth [2020] FCA 958 at [52] (Mortimer J); see also Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [31] (Spender, Graham and Gilmour JJ).
In the circumstances of the present case, I am satisfied that it is appropriate to resolve the questions of law as to the proper construction of s 29(7) of the NTA for the purposes of determining the application for summary judgment. This encompasses the threshold questions as to whether the alleged decisions by the State to include an expedited procedure statement in the relevant notices given under s 29 are amenable to judicial review on the grounds contained in the originating application, and whether the applicants have any reasonable prospect of obtaining the relief sought in the originating application. These questions were fully argued on the hearing of the interlocutory applications, and their resolution does not depend on the evidence that may ultimately be adduced at the trial of the proceeding nor any findings of fact that might be made based on such evidence. To borrow the words of Siopis J in McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 at [40], “I have had the benefit of full argument on the points of law in issue”, and “I am in no worse a position to determine those points of law than I would be at the end of a trial”. I note that this is consistent with the approach taken in Holt v Manzie (2001) 114 FCR 282, in which Olney J upheld an objection to competency in a judicial review proceeding that raised similar issues to the present case. Accordingly, I do not accept that it is sufficient to dispose of the summary judgment application simply to determine whether the questions of law are arguable or have some prospect of being resolved in favour of the applicants.
Evidence on the summary judgment application
The following is intended to summarise key aspects of the evidence that was relied on by the parties on the application for summary judgment under s 31A of the FCA Act. As discussed above, I consider that the threshold questions of law concerning the construction and application of s 29(7) of the NTA can be resolved independently of this evidence, and without determining any contested issues of fact. Nevertheless, it is useful to address the factual context in which the issues that the applicants seek to agitate in the proceeding arise.
It appears that, prior to 1 June 2022, the State adopted a “blanket” approach under which expedited procedure statements were generally included in all notices given under s 29 of the NTA for exploration licences proposed to be granted in Western Australia. Such an approach was referred to in the KLC’s written submissions dated 29 November 2019 to the Senate Legal and Constitutional Affairs Committee Inquiry into the Native Title Legislation Amendment Bill 2019 (Cth), which asserted that “in Western Australia it has been the practice of the State since 1998 to apply the expedited procedure statement to all exploration licences issued in the State without undertaking the consideration required by s 29(7)”. The KLC had submitted to the Committee that this had the practical effect of shifting to native title parties the cost of determining whether or not the expedited procedure did in fact apply to the particular grant, including by objecting to the inclusion of the expedited procedure statement.
Although the KLC’s submissions to the Committee are not direct evidence of any policy on the part of the State, the historical existence of a “blanket” approach by the State to the inclusion of an expedited procedure for “exploratory titles” granted prior to 1 June 2022 is recognised in the documents evidencing the new policy that was adopted by the State with effect from that date.
The 2022 Policy as alleged by the applicants is comprised in a number of documents published by the Department of Mines, Industry Regulation and Safety (DMIRS), as it was then known, on behalf of the State.
On 30 May 2022, DMIRS issued a news release entitled “New expedited procedure process”, which stated as follows:
The Department of Mines, Industry Regulation and Safety (DMIRS) has published the new expedited procedure process, which will be implemented on 1 June 2022.
Prior to 2022, State policy on the inclusion of the expedited procedure statement in notices issued under section 29 of the Native Title Act 1993 (Cth) applied a ‘blanket approach’ to the application of the expedited statement to particular kinds of tenements. These were prospecting licences, exploration licences, and retention leases [sic] (exploratory titles).
The new process allows DMIRS greater discretion in the application of the expedited statement to such tenements.
In particular, the new expedited procedure process involves:
a.The introduction of an early risk assessment and triage process to identify tenement applications that are at high risk of a determination by the National Native Title Tribunal (NNTT) that the expedited procedure does not apply, should an objection to the assertion of the expedited procedure statement be lodged with the Tribunal.
b.The implementation of a case management approach to encourage applicants and native title parties (NTPs) to achieve early agreement making.
c.Education and engagement with NTPs about the reforms (on request).
d.Clear engagement protocols for applicants and NTPs to promote early engagement and agreement making between industry and NTPs.
e.Ongoing discussions with the NNTT regarding the operation of the expedited procedure process.
f.Ongoing discussions with the Chief Magistrate regarding matters to be resolved in the Warden’s Court.
The purpose of the new process is to encourage early agreement making between parties and reduce delay to the grant of exploratory titles.
More information on the new expedited procedure process is available on the department’s website …
In the present case, the alleged 2022 Policy is not required or authorised by or under the NTA. The question whether the 2022 Policy is consistent with the requirements of Subdiv P does not itself give rise to a matter arising under the NTA: cf. s 213(2); see also Judiciary Act, s 39B(1)(c). In so far as the 2022 Policy may have been followed or applied by the Government party in making decisions to give notices under s 29 that include an expedited procedure statement, those decisions are not reviewable under the ADJR Act or the Judiciary Act.
Conclusion — no reasonable prospect of success
Accordingly, I am satisfied that the applicants have no reasonable prospect of successfully prosecuting the proceeding within the meaning of s 31A(2) of the FCA Act. The interlocutory application by the State is therefore granted, and judgment must be given for the State against the applicants in relation to the whole of the proceeding, which will be dismissed.
Abuse of process
Under r 26.01(d) of the Rules, a party may apply for an order that judgment be given against another party because the proceeding is an abuse of process of the Court.
The State submitted that the proceeding was an abuse of process on the basis that the first to third applicants had made a “forensic decision” to lodge objections with the NNTT against the inclusion of the expedited procedure statement in the Malarngowem notice and the Yanunijarra and Walalakoo notices. The jurisdiction of the NNTT having been enlivened, the NNTT is able to deal with the substantive issue whether each of the identified acts is an act attracting the expedited procedure. Indeed, the State submitted that the NNTT is under a duty to determine the applicants’ objections, if they are not withdrawn. The State also argued that the proceeding is unfairly oppressive and would bring the administration of justice into disrepute if it were allowed to proceed, relying on their arguments about the construction of the relevant provisions in Subdiv P and the evidence that had been adduced as to the State’s process concerning the inclusion of expedited procedure statements in notices given under s 29 of the NTA.
As Kiefel CJ, Bell and Keane JJ stated in UBS AG v Tyne (2018) 265 CLR 77, the circumstances in which the use of the Court’s processes will amount to an abuse “do not lend themselves to exhaustive statement”: at [1]. They include cases where “the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute”: ibid.; see also Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507 at [25] (French CJ, Bell, Gageler and Keane JJ). In Walton v Gardiner (1993) 177 CLR 378 at 392–393, Mason CJ, Deane and Dawson JJ stated that “[t]he inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness”. Their Honours gave examples of proceedings that “can be clearly seen to be foredoomed to fail”, proceedings in relation to which the court is “a clearly inappropriate forum”, or proceedings whose “continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings”: ibid. It may also include cases involving unreasonable or unjustifiable delay, or proceedings that are instituted for an improper purpose: see e.g. Walton at 410–411 (Brennan J).
The question whether a proceeding is an abuse of process requires an evaluation of all of the circumstances of the particular case. The power rests upon public interest considerations including “preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes” and “the necessity of maintaining confidence in, and respect for, the authority of the courts”: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [69]–[70] (French J).
In the light of my conclusion above that the proceeding should be dismissed under s 31A(2) of the FCA Act, it is strictly unnecessary for me to determine the State’s application for judgment against the applicants under r 26.01(d) of the Rules. Nevertheless, if it were otherwise established that the applicants had a reasonable prospect of success in the proceeding, I would not have been satisfied that the commencement or continuation of the proceeding was an abuse of the process of the Court.
The applicants lodged their objections with the NNTT largely for protective purposes, under protest as to the NNTT’s jurisdiction, in circumstances where s 32(3) of the NTA requires any objection to be lodged within the period of four months after the notification day. Although I do not accept the applicants’ submission that the jurisdiction of the NNTT is conditioned on the legal validity or efficacy of the expedited procedure statement included in the notices under s 29(7) of the NTA, I am not satisfied that the applicants are attempting to litigate the issues raised by this proceeding in a different forum nor to pursue inconsistent avenues to contest the inclusion of the expedited procedure statement. The applicants sought the adjournment of their objections before the NNTT pending the outcome of this proceeding. While the availability of an alternative means of challenging the inclusion of the expedited procedure statements under Subdiv P might be relevant to the exercise of the Court’s discretion to grant the relief sought in this proceeding, I do not consider that the claims raised by the applicants in this proceeding are vexatious or oppressive or would otherwise bring the administration of justice into disrepute.
Further, I note that the proposed amendment to the originating application would include a claim in relation to the inclusion of an expedited procedure statement in a s 29 notice in circumstances where the first applicant failed to lodge an objection within the four-month period. Accordingly, these proceedings would be the only means by which the first applicant can agitate its challenge to the legal efficacy of the expedited procedure statement in order to displace the operation of s 32(2) of the NTA.
On the other hand, there no longer appears to be a live issue in relation to the proposed grant of exploration licence E04/2725, which was the subject of the Yanunijarra and Walalakoo notices, in circumstances where Swiim Holdings as the grantee party has since withdrawn its tenement application and the expedited procedure objection application has now been finalised by the NNTT. This might have warranted the dismissal of that part of the proceeding on the grounds that it had become moot and no longer raised any live controversy between the parties. There would nevertheless have remained live issues concerning the Malarngowem notice and, subject to the grant of leave to amend the originating application, the second Yanunijarra notices.
APPLICATION FOR LEAVE TO AMEND
The outcome on the State’s application for summary judgment renders it unnecessary to determine the application made by the applicants for leave to amend the originating application and concise statement. However, if it had been necessary to do so, I would have been inclined to exercise the discretion to grant leave to amend.
The principal claim sought to be added by the proposed amendment concerned the relief sought by YAC arising from the inclusion of an expedited procedure statement in the s 29 notice for the proposed grant of exploration licence E80/5931 to Uro Western.
The applicants relied on evidence concerning the significance to the native title holders of the area covered by the exploration licence, which overlaps or is proximate to sites registered under the Aboriginal Heritage Act as well as an Aboriginal reserve and an Indigenous Protected Area. There was also evidence about the circumstances in which YAC had failed to lodge an objection in response to the second Yanunijarra notices. The objection period coincided with the recent resignation of Mr Murray as the full-time CEO of YAC, and his replacement by Mr Tromp as Acting General Manager. Each of Mr Murray and Mr Tromp gave evidence about their lack of awareness of the second Yanunijarra notices until after the expiry of the objection period, as well as the arrangements and practices in relation to the receipt by YAC of correspondence and communications both by mail and by email. It is unnecessary to make detailed findings on this evidence. It is common ground between the parties that the second Yanunijarra notices were in fact sent to and received by YAC, and that Mr Murray signed for the receipt of the notices which were sent by registered post.
The State relied on the evidence of Mr Weidemann, a tenement adviser who was retained by Uro Western as the grantee party for E80/5931. Mr Weidemann relevantly stated that he had checked the tenement register and confirmed that no objections had been lodged against the expedited procedure statement, upon which he had formed the belief that the application for the exploration licence would proceed to grant. He said that he had advised a director of the parent company of Uro Western, Mr Justin Orr, accordingly. On 2 April 2024, Mr Weidemann was informed by the State Solicitor’s Office that YAC were seeking to include E80/5931 in this proceeding, and that the State had agreed to provide the KLC with at least five business days’ notice prior to any grant of that exploration licence. Mr Weidemann deposed that, if E80/5931 was not granted imminently, Uro Western and its parent corporation would suffer prejudice in relation to its staffing and contractor arrangements, as well as in obtaining project funding.
Under rr 8.21 and 16.53 of the Rules, the Court has power to grant leave to amend an originating application or a pleading, including to add or substitute a new claim for relief arising out of the same, or substantially the same, facts as those already pleaded, or facts or matters that have occurred or arisen since the start of the proceeding. The grant of leave to amend is discretionary, and the power must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions in s 37M of the FCA Act. This includes the objectives of the just and timely determination of all proceedings before the Court, and the efficient use of judicial and administrative resources.
While I accept that the amendment would give rise to some prejudice to Uro Western, I consider that, on balance, it would be appropriate to grant the application for leave to amend the originating application and concise statement to include claims in relation to E80/5931. Although YAC was given notice of the proposed act under s 29 of the NTA and failed to lodge an objection within the four month period, it promptly took steps to agitate its claims in this proceeding. If those claims were accepted, the expedited procedure under s 32 of the NTA would not apply to the grant of E80/5931. Further, even if leave to amend were to be refused, YAC would have been entitled to commence a separate proceeding in which similar relief is claimed in relation to the proposed grant of E80/5931. It is more efficient for these claims to be brought in the present proceeding, together with the overlapping claims made in relation to the Malarngowem notice and the alleged 2022 Policy. This would also allow the issues raised by the applicants to be considered in a slightly different factual context, in which no objection was lodged against the expedited procedure statement nor are there extant proceedings before the NNTT in which the substantive issue can be determined whether the act is an act attracting the expedited procedure.
For these reasons, I would have granted the application for leave to amend.
COSTS
Finally, it is necessary to deal with the costs of the proceeding.
Except where otherwise provided, the award of costs is in the discretion of the Court: FCA Act, s 43(2).
Where it applies, s 85A of the NTA provides that each party to a proceeding must bear his or her own costs unless the Court orders otherwise, including where the Court is satisfied that any unreasonable act or omission of a party has caused another party to incur costs in connection with the institution or conduct of the proceeding. A provision such as s 85A operates to remove any expectation that costs will usually follow the event unless some “cause” is shown for a different order: see Akiba v Queensland (2010) 184 FCR 406 at [61] (Greenwood J); Cheedy v Western Australia (No 2) (2011) 199 FCR 23 at [9] (North, Mansfield and Gilmour JJ).
Section 85A is contained in Pt 4 of the NTA, the provisions of which apply “in proceedings in relation to applications filed in the Federal Court that relate to native title”: NTA, s 80. This covers applications for determinations of native title or for compensation, as well as appeals from first instance decisions in such matters: Cheedy at [10]–[11], [35]–[38] (North, Mansfield and Gilmour JJ). It might arguably also cover some other applications made under the NTA, such as an appeal from a determination of the NNTT in a right to negotiation application: Cheedy at [37]; cf. Lardil Peoples v Queensland (2001) 108 FCR 453 at [156] (Dowsett J); O’Mara v Minister for Lands (2008) 167 FCR 145 at [34] (Reeves J); Corunna v South West Aboriginal Land and Sea Council (No 2) (2015) 235 FCR 53 at [44]–[49] (Barker J).
More generally, the terms of s 85A can have a wider indirect effect in matters arising under or involving the interpretation of the NTA, as the Full Court noted in Cheedy at [12]:
In proceedings which are not “proceedings” under the [NTA] but nevertheless concern matters arising under the [NTA] and its interpretation, s 85A is relevant to the way in which the Court exercises its costs discretion but does not directly apply: Murray v Registrar, National Native Title Tribunal (2003) 132 FCR 402 …
Accordingly, where the central issues in a proceeding concern the interpretation of important provisions of the NTA, the Court can take into account the legislative intention of the NTA and, where appropriate, “‘follow the spirit’ of s 85A(1)”: Cheedy at [13].
It was common ground that s 85A of the NTA is not directly applicable to the present proceeding. Nevertheless, given that the subject matter of the proceeding concerns the proper interpretation of Subdiv P of the NTA and the legal effect of notices given under s 29 in relation to proposed future acts, I consider that it is appropriate to take into account the policy underlying s 85A when making orders in relation to costs. It is also relevant more generally to take into account the reasonableness of the applicant in bringing the application, and the general importance both of the clarification of the law for the State as a public authority, and of securing proper compliance with the law: Duncan v Chief Executive Offıcer Centrelink (No 2) [2008] FCA 667 at [4] (Finn J); see also Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176 at [22]–[26] (Logan J); Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2) [2018] FCA 2058 at [21]–[29] (Barker J).
Having regard to all relevant circumstances, including the legislative intention reflected in s 85A of the NTA, I consider that the parties should bear their own costs of the proceeding, including the State’s application for summary judgment. While the State has been successful in seeking judgment against the applicants, there has been no unreasonable conduct on the part of the applicants in either bringing or maintaining the proceeding to date. Further, there is a public interest in clarifying the meaning and application of the relevant provisions in Subdiv P of the NTA, and the question of whether and to what extent decisions by the Government party to include an expedited procedure statement in a s 29 notice are amenable to judicial review. I have also taken into account the matters addressed in the evidence relied upon by the applicants in support of their application for a maximum costs order. In all the circumstances, the appropriate order is that each party should bear its own costs.
Application for a maximum costs order
It remains only to deal with the applicants’ interlocutory application for an order capping the maximum party/party costs that may be recovered for the proceeding to $100,000.
Rule 40.51(1) of the Rules specifically provides that a party may apply for an order specifying the maximum costs as between party and party that may be recovered for the proceeding, other than costs that a party is ordered to pay in certain circumstances such as failure to comply with (or an extension of time for complying with) an order or the Rules, the grant of leave to amend pleadings or particulars, or a failure to conduct the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible.
The power conferred by r 40.51 is broadly concerned with “access to justice, public interest, and a desire to limit the costs of all parties, particularly in less complex and shorter cases”: McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 at [71] (Beach J). In exercising the discretion to make a maximum costs order under r 40.51, the Court may have regard to a range of factors, including the timing of the application, the complexity of the factual or legal issues raised, the strength of the claims, the undesirability of forcing an applicant to abandon the proceeding, whether the case involves a public interest element, the amount of costs likely to be incurred, and whether any opposing party has been uncooperative or has delayed the proceedings: see generally Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 at [6]–[13] (Bennett J); Houston v New South Wales [2020] FCA 502 at [17]–[20] (Griffiths J).
In support of their application for a maximum costs order in the present case, the applicants relied on evidence about the nature and functions of the KLC as the representative Aboriginal/Torres Strait Islander body for the Kimberley region, including the sources of its funding and the constraints on its resources. The KLC has indemnified the first to third applicants against any adverse costs orders, and those applicants would not have been able to commence the proceeding without such an indemnity. Ms Toohey gave evidence about the consequences for the KLC if the applicants were ordered to pay the State’s costs in the proceeding, including the potential impacts on the KLC’s other functions and activities in relation to the representation and protection of the rights and interests of native title holders. The applicants submitted (among other things) that the proceeding concerned matters of public interest, and that the proposed amount of $100,000 was reasonable in all the circumstances. In this regard, the proposed cap on costs recoverable by the parties would equally apply to the applicants in the event that a costs order in the proceeding were ultimately to be made in their favour.
Given the outcome of the State’s application for summary judgment and the disposition on costs as set out above, it is unnecessary to determine the application for a maximum costs order. In my view, it is not appropriate to form a view on this application on a hypothetical basis in which summary judgment had not been given. Accordingly, I do not propose to make any order on this aspect of the applicants’ interlocutory application.
CONCLUSION
For the reasons set out above, judgment is given for the State against the applicants in relation to the whole of the proceeding. It follows that the proceeding should be dismissed, with no orders as to costs.
I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. Associate:
Dated: 15 May 2025
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