"S43 CATCHWORDS Administrative Law (Natural Justice) - Mining companies holding mining rights in part of Kakadu National Park - decision by Executive to submit Stage 2 of park for listing pursuant to World Heritage Properties Conservation Act 1983, ss.3, 6, 7, 8 and 10 without giving applicants opportunity to be heard. Administrative Law (Jurisdiction) - whether judicial review available in respect of a decision made under a statute but in the context of an international convention. Injunctions - Interim injunction ~ test to be applied. PEKO-WALLSEND LIMITED & ORS. (Applicants), THE HONOURABLE BARRY COHEN, MINISTER FOR ARTS, HERITAGE AND ENVIRONMENT (First respondent), THE HONOURABLE LIONEL F. BOWEN, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA (Second respondent) AND THE COMMONWEALTH OF AUSTRALIA (Third respondent). No. NTG 9 of 1986 Beaumont J. Sydney 26 November 1986 RECT Itty 26 NOV 1986 FEDERAL COUR T AUSTRALIA OF PRINCIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY) No. NTG 9 of 1986 ) ) GENERAL DIVISION BETWEEN: PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC CO. OF AUSTRALASIA LIMITED Applicants THE HONOURABLE BARRY COHEN MINISTER FOR ARTS, HERITAGE AND ENVIRONMENT ig First respondent THE HONOURABLE LIONEL F. BOWEN, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA E Second respondent THE COMMONWEALTH OF AUSTRALIA Third respondent Judge making orders: Beaumont J. Date orders made : 24 November 1986 Where made : Sydney SHORT MINUTES OF ORDERS Upon the applicants giving the usual undertaking as to damages: l. Order that the respondents forthwith inform the World Heritage Committee ("the Committee") referred to in the World Heritage Properties Conservation Act 1983 ("the Act"), 1n respect of the application on behalf of the Commonwealth of Australia that the area of approximately 7,000 square kms. known as the Stage II extension of the Kakadu National Park ("the Stage II extension") be placed upon the World Heritage List as provided by the Convention referred to in the Act ("the listing"), the Federal Court of Australia has directed the respondents to inform the Committee of the following: (a) that the applicants claim to be entitled to certain mining rights over an area of approximately 65 square kms. situated within the boundaries of the Stage II extension, which area is described in the schedule hereto; (b) that the applicants have recently commenced proceedings in the Federal Court of Australia seeking to restrain the consent of the Commonwealth of Australia to the Listing and to require that consent to be withdrawn: (c) that the proceedings have been fixed for a final hearing to commence on 8 December 1986; 2. 3. (d) (e) any, that it is anticipated that the proceedings will conclude on 12 December 1986 and that the judgment of the Court will be given shortly thereafter; that, with a view to preserving the status quo until judgment in the proceedings in respect only of the area described in the schedule (and not otherwise), the Federal Court of Australia has directed the respondents to request the World Heritage Committee to defer, until further notice, its consideration of so much of the application for the listing as includes the area described in the schedule. Reserve general liberty to apply on such notice, if as a judge of the Court may allow. Reserve costs. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY) No. NTG 9 of 1986 ) ) GENERAL DIVISION BETWEEN: PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC CO. OF AUSTRALASIA LIMITED Applicants THE HONOURABLE BARRY COHEN MINISTER FOR ARTS, HERITAGE AND ENVIRONMENT is First respondent THE HONOURABLE LIONEL F. BOWEN, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA ig Second respondent THE COMMONWEALTH OF AUSTRALIA Third respondent CORAM BEAUMONT J. DATED 26 November 1986 REASONS FOR JUDGMENT (on application for interlocutory relief) Before the Court is a notice of motion by the applicants for interlocutory relief. There is no dispute about the facts for present 2. purposes. For many years, the applicants have held mineral leases and mineral lease applications under the mining legislation in force in the Northern Territory over areas of the Territory including the Alligator Rivers region of the Territory; in particular, the applicants hold 14 mineral leases and 397 mineral lease applications having a total area of approximately 65 square kms. in the region known as the Munmarlary project area. In a news release published on 5 February 1978, the then Minister for Environment, Housing and Community Development, Mr. Ray Groom, said that: ",..the Government had made it clear that the whole of the area in the Alligator Rivers Region recommended by the Ranger Uranium Environmental Inquiry is to become a National Park, with the Stage 1 area to be proclaimed as soon as the necessary legislation is passed in the Parliament. ° The plan for the Stage 2 area will cover land use, conservation, and protection of Aboriginal interests in sufficient detail to enable the four controlling Departments -- Environment, Housing and Community Development; Aboriginal Affairs; Northern Territory; and Trade and Resources -- to prepare environmental conditions for exploration. As announced by the Government in the Uranium Statements of August last year, the Stage 2 area of the Park will be proclaimed under the National Parks and Wildlife Conservation Act as soon as the mineral resources of the area have been reasonably identified..." On 23 June 1978, the Commonwealth of Australia gave notice of the compulsory acquisition of two parcels of land the subject of pastoral leases 739 and 737 known as Mudginberri and Munmarlary Pastoral leases containing areas of approximately 427 3. square miles and 390 square miles respectively. In the notice of acquisition, it was declared that the land was acquired: "for the following public purposes approved by the Governer=@eneral: The establishment, in relation to the Northern Territory, of a park or parks pursuant to the National Parks and Wildlife Conservation Act 1975, as amended and, as to part of the land, the development of uranium mining in the Northern Territory." On 29 June 1978, the Commonwealth gave notice under s.70(2) of the Northern Territory (Self-Government) Act 1978 of the acquisition of the fee simple in land then known as the Alligator Rivers Stage 2 region for the purpose of a "National Park". The land was in two parcels - an area of approximately 162,090 hectares and an area of 19,857 square kms. On 5 April 1979, by a Proclamation made pursuant to s.7(2) of the National Parks and Wildlife Conservation Act 1975, the Governor-General declared an area of approximately 5,700 square kms. to be a park, assigned to the park the name "Kakadu National Park" and specified the depth of 1,000 metres below the eurface of any land within the area so declared to be a park as the depth below that surface to which sub-soil beneath that land shall be taken to be within the park. In 1980 and 1981, Toohey J., as the Aboriginal Land Commissioner, heard an application by the Northern Land Council under the Aboriginal Land Rights (Northern Territory) Act 1976. In his report, presented on 2 July 1981, Toohey J. said: "307. In Commonwealth of Australia Gazette No. S116 of 29 June 1978 (Exhibit 3), the 4. Commonwealth gave notice under the Northern Territory (Self-Government) Act 1978 that the Governor-General had authorised the acquisition of the fee simple interest in land (including the land within Mudginberri and Munmarlary) for the purpose of a = national park. That authorisation under 8.70(2) of the Self-Government Act may not have effected an actual acquisition; however, retrospective legislation, the Northern Territory (Commonwealth Lands) Act 1980, operated to give the notice of 29 June 1978 the full effect of vesting the land in the Commonwealth pursuant to s.70(4) of the Self-Government Act. Vesting is subject to s.70(6) of the Self-Government Act, which reads: 'Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory.' By the combined operation of ss.69 and 70 of the Self-Government Act, the Northern Territory (Commonwealth Lands) Act and the relevant gazettals, the Commonwealth now holds- the freehold interest in the land formerly known as Mudginberri and Munmarlary pastoral leases, save for any interests preserved by s.70(6). 308. The question, then, is whether the mining leases and mining lease applications approved by the Mining Warden before the acquisition of the leasehold property and subsequent acquisition of freehold interest are 'interests' for the purposes of s.70(6). 'Interest' is defined in s.56 of the Self-Government Act to include "any right, title, estate, power, privilege, claim, demand, charge, lien or encumbrance, whether, at law or in equity'. Although s.145 of the Mining Act provides that 'every mining tenement...shall be deemed and taken in law to be a chattel interest', it is the definition of 'interest' in the Self-Government Act that is at issue here (Commonwealth v. Maddalozzo (1980) 29 ALR 161 at p-168, also Adamson v. Hayes (1972-1978) 130 CLR 276). There can be no doubt that a mineral lease falls within the definition. An applicant for a mineral lease may take possession of and hold the land applied for pending determination of the application (8.62). Entry by an unauthorised person is a trespass, the applicant having the right to recover damages (8.63). The granting of a mineral lease is in the absolute discretion of the Minister (6.70) but a lessee or applicant may, with approval, deal with the lease or application (8.75). There is a register of leases and applications (8.76). In my view, the rights conferred on the holder of an application for a mineral lease meet the definition of °interest' in the Self Government Act; hence, the applications are, by force of e.70(6), held from the Commonwealth. This view cannot bind the interested parties or the courts; I express it to pave the way for a consideration of detriment." Toohey J. then dealt with the mining of uranium as follows: "309. Whereas leases to mine for uranium were granted by the Administrator under the Mining Ordinance (8.47A; see also s.41(4) of the Atomic Energy Act 1953), the effect of self-government was to vary the responsibility for the executive administration of the Mining Act (8.35). By Reg.4 of the Northern Territory (Self-Government) Regulations, a minister of the Territory has executive authority in respect of mining and minerals but not for the mining of uranium or other prescribed substances within the meaning of the Atomic Ener Act 1953 Under s.7A of the Mining Act (inserted by Act No. 3 of 1979) the Northern Territory minister can only exercise his powers under that Act in relation to prescribed substances in accordance with the advice of the Commonwealth Minister responsible for the administration of the Atomic Energy Act. Consequently,the Northern Territary Government, while administering the granting of mining titles for the exploration and mining of uranium, must have the concurrence of the Federal Minister to specific grants of title. The fact that the mineral leases and applications for leases under discussion lie on Commonwealth land would not, it seems, alter their leasehold status..." On 30 October 1981, Stage 1 of Kakadu National Park, as proclaimed on 5 April 1979, was included on the World Heritage 6. List established by the World Heritage Committee ("the Committee") pursuant to the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention") adopted by the UNESCO General Conference on 16 November 1972. The Convention came into force on 7 December 1975 and was ratified by Australia in August 1974. As at December 1985, the Convention has been ratified or acceded to by 89 countries. (See generally Commonwealth of Australia v. State of Tasmania (1983) 46 A.L.R. 625.) In inscribing Kakadu National Park in October 1981, the Committee observed: "The Committee noted that the Australian Government intended to proclaim additional areas in the Alligator Rivers Region as part of Kakadu National Park and recommended that such areas be inscribed on the World Heritage List and that in the Region the environmental protection measures specified in the relevant legislation continue to be enforced." It is common ground that the additional areas referred to include the area known as Stage 2 of Kakadu National Park and that the relevant legislation is the National Parks and Wildlife Conservation Act. In a news release dated 19 November 1983, the first respondent, referring to the above comments of the Committee, said : "Consultations are expected to start soon with the relevant Federal and Northern Territory authorities with the view to proposing the inclusion of Stage Two in the World Heritage List. Stage Two includes wetlands of major international significance, mangroves that are of great scientific interest, extensive archaeological sites and places of considerable recreational importance." 7. On 28 February 1984, the area known as Stage 2 of Kakadu National Park, comprising a further 7,000 square kms., including the Munmarlary project area, was declared by Proclamation a park under the National Parks and Wildlife Conservation Act. In a news release dated 29 February 1984, the first respondent said: "Proclamation will enable Stage 2 to _ be considered by the Government for nomination for the World Heritage List as an extension to Kakadu National Park as already listed." On 17 September 1986, in circumstances to be elaborated later, Australia submitted the area known as Kakadu Stage 2 to the Committee for inclusion on the World Heritage list. The consideration of Australia's request is on the agenda for the meeting of the Committee scheduled to be held in Paris on 24-28 November 1986. The meeting will conclude on or prior to 28 November 1986 and will not reconvene for the purpose of considering listings for approximately 12 months. Mention should be made of the relevant provisions of the Convention. Each State Party recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end (Art.4). To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party shall endeavour to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage (Art.5(d)). Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property rights provided by national legislation, the States Parties recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate (Art.6). The Committee may at any time invite public or private organizations or individuals to participate in its meetings for consultation on particular problems (Art.10.2). Article 11 provides: "1. Every State Party...shall, in so far as possible, submit to the...Committee an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion in the list provided for in paragraph 2 of this Article. This inventory, which shall not be considered exhaustive, shall include documentation about the location of the property in question and its significance. 2. On the basis of the inventories submitted by States in accordance with paragraph 1, the Committee shall establish, keep up to date and publish, under the title of 'World Heritage List', a list of properties forming part of the cultural heritage and natural heritage, as defined in Articles 1 and 2 of this Convention, which it considers as having outstanding universal value in terms of such criteria as it shall have established. An updated list shall be distributed at least every two years. 3. The inclusion of a property in the World 9. Heritage List requires the consent of the State concerned. The inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute..." The Convention is referred to in the World Heritage Properties Conservation Act 1983,some of the provisions of which were held invalid in the Franklin Dams Case. For present purposes, the World Heritage Properties Conservation Act relevantly provides as follows. A Proclamation may be made under s.6(3) in relation to "identified property" that is not in any State (s.6(1)). A reference in the Act to "identified property" shall be read as a reference to: "(a) property forming part of the cultural heritage or natural heritage, being property that - (i) the Commonwealth has, under Article 11 of the Convention, submitted to the World Heritage Committee, whether before or after the commencement of this Act, as suitable for inclusion in the World Heritage List provided for in paragraph 2 of that Article; or (ii) has been declared by the regulations to form part of the eultural heritage or natural ~ heritage; or (b) any part of property referred to in paragraph (a)" (46.3(2)). Where the Governor-General is satified that any property in respect of which a Proclamation may be made under s.6(3) is being or is likely to be damaged or destroyed, he may, by Proclamation, declare that property to be property to which s.9 10. applies (8.6(3)). Except with the consent in writing of the Minister, it is unlawful for a person, if an act is prescribed for the purposes of this paragraph in relation to particular property to which this section applies, to do that act in relation to that property (8.9(1)(h)). Where the Governor-General is satisfied that any identified property is being or is likely to be damaged or destroyed, he may, by Proclamation, declare that property to be property to which s.10 applies (s.7). It is unlawful for, inter alios, a trading corporation to carry out mining operations on any property to which s.10 applies (s.10). On 8 September 1986, Senator the Hon. Gareth Evans Q.C., Minister for Resources and Energy, wrote to the first applicant as follows: ll. ; fee Ay AUSTRALTA ut SENATOR THE HON GARETH EVANS 0 C MINISTER FOR RESOURCES AND ENERGY PARLIAMENT HOUSE CANBERRA ACT 2600 - §SeP 1986 Mr G.H. Sherrington Manager - Special Projects Geopeko PO Box 217 GORDON NSW 2072 Dear Mr Sherrington, I refer to your letter of 15 May 1986 and enclosures concerning mineral activity in the Kakadu Region. I am conscious of the concern in the mining industry over proposals for future land use in the Kakadu Region including the new Plan of Management for Kakadu National Park. My Department has provided comments on the proposed Plan to the Director, National Parks and Wildlife which seek inclusion in the Plan of provisions for operations for the recovery of minerals similar to those in the first Plan. Such an approach is necessary to give effect to the Plan's key management objective of developing an inventory of all renewable and non renewable resources in the Park. You can be assured that I am following this issue carefully with the long term objective of establishing a multiple land use policy for the Region which balances the interests of the mining industry with those of other land users. GARETH EVANS : 12. On 16 September 1986, the first respondent wrote to the Hon. Barry Coulter, M.L.A., Minister for Mines and Energy in the Northern Territory Government as follows: 'Thank you for your letter of 16 June 1986 concerning the status of the former Stage 2, Kakadu National Park. In accepting the recommendation of the Ranger Uranium Environmental Inquiry that a major national park be established in the Alligator Rivers Region, the previous Commonwealth Government accepted that it would need to be proclaimed in stages. Stage 1 of Kakadu National Park was proclaimed on 5 April 1979. When the present Government moved to proclaim Stage 2, technical legal reasons required that it be proclaimed as a separate national park rather than be incorporated in the existing park, as had been the intention all along. Consequently Kakadu (Stage 2) National Park was proclaimed on 28 February 1984. Subsequent amendments to the National Parks and Wildlife Conservation Act, which received Royal Assent on 2 September 1985, enabled Stage 2 to be incorporated into Kakadu National Park. The necessary proclamation was gazetted on 20 December 1985.. There was no addition to the total area of national park, nor any change in status of any of the land involved. Amalgamation of the two areas simply provided administrative advantages, allowing the whole park to be operated under the name "Kakadu National Park" and under one plan of management. This achieves the Government's long term intention for the areas concerned. Conditions applying to any operations for the recovery of minerals were unchanged by the amalgamation of the two areas. . In relation to the possible inclusion of Kakadu Stage 2 on the World Heritage List, procedures for nominating possible future Australian sites for World Heritage listing were agreed at the July 1984 meeting of the Council of Nature Conservation Ministers (CONCOM) and included, inter alia, a commitment by the Commonwealth to full consultation with State and Territory Governments. Should the Commonwealth decide to pursue World Heritage listing of the former Stage 2 area, your Government will be consulted in accordance with the CONCOM agreement prior to any approach being made to the World Heritage Secretariat in Paris." 13. On 16 September 1986, Senator Evans and the first respondent issued a joint statement as follows: "The Government agreed today to endorse a revised Plan of Management tor the Kakadu National Park wnich would exclude the possibility of any new mining activity taking place within the Park bounaaries. The Government also agreed that immeciate steps should be taken tS nominate Stage II of the Park for anclusion on the World Heritage List. Stage I, covering 6144 6q kn, was declared in 1979 and listed as a wWorla Heritage site in 1981; Stage II, covering 6929 sa km was declared part ot tne Kakagu National Park in 1984. The World Heritage List identifies areas of "outstanding universal vaiue", tne disappearance or destruction of which would constitute a "harmful aumpoverishment of the neritage of all nations ot tne woria". Stage II of Kakadu National Park will be a fitting addition to the World Heritage List. It anciudes wetlands or major international significance, mangroves of great scientitic interest anu extensive arcnaeologicai anu rock art sites. The revisea terms ot tne Plan of Management for Stages I ana II to be submicteo to Pacliament will be along the lines ot the Draft Pian publicly circulatea by the Director of tne Australian National Parks ana Wilalife Service. The provisions in question differ from the Pcevious Plan, Now expires, wnicn enadleda exploration ana Mining to take Place SutSiue pre-existing leases with the Q@ypprovali of tne Governur-veneral. 14. The existing Gimbet anu Goodparla pastoral leases ate not part of tue Kakadu National Pack. In @ further major decision, the Government agreed to enlarge the vdoundaries ot tne Park ints the existing Gimvat ano Gooaparla leases, which between them cover 6726 sq km and incluge a larye area or tne catcnment or the Soutn Alligator River. Significant areas of these pastoraL leases - including the area covered by the BHP-1ea Coronation Hill eaploration project - have been the subject of previous maining activity, and at least a third of the toral area has been assesseaq py the Bureau of Mineral Resources as highly Prospective for minerals, especially gold and platinum. Under these circumstances, Cabinet haS agreea that the further extension or the Park snould be subject cto arrangements whicn will ensure that a full assessment of the resource potential ot the area takes place. Tne details of the Stage III extension, iunclucaing the mecnanisms to ensure the full environmental protection of the South Alligator River system, will be the subject of further consideration by the Cabinet and Caucus in the near future. Tne Government nas also given specific consiceration to the future of the Coronation Hill mineral lease, (located witnin tne Gimbat pastoral lease) which 1s presently tne subject of intensive exploration ana evaluation for gold ano platinum by a joint venture comprising BHP, Noranda Pty Ltd and £2 Inaustries. It has been agreea tnat the econauic potential or tnis project 1S sucn tnat Provision snoula be mace for the exclusion from any Nationat Pack EXTENSION OF Aan Appropriate wining leuwse area, ano tne project alloweu to procece Sudject ty nattral 2avironmental, Apytagi inal iericage anu related clearances. ' 15. An tmpurtant element 19 tne Government's YEeCrsivh nas eer Che assessments of tne mainerai putenclal of ChE varisus a+ areas - necessarily tentatave at this stage - that have been made by tne BMR on tne basis of all Known existing information. The present National Park area (Stages 1 ana II) has been assessea by tne BMR aS being very highly prospective for uranium,' but only moderately prospective for gold, platinum and base metals; in the proposea Gimbat/Gooaparla Stage III extension area, by contrast, the BMx's assessment is one ot hnign potential for gola and platinum, but only moderate prospectivity for uranium. There 1S no question, under ALP policy, of any new uranium deposit being mined - whether inside or outside National Park boundaries, in the Northern Tercitory or anywhere else. By contrast, there 1S no policy restriction on cola or platinum mining, subject only co environmental ena related considerations, ana prevailing world macket prices orfer a very strong uncentive, in the present economic climatey for tne development of new gola ana platinum projects. In the principal proceedings, the applicants seek declaratory and injunctive relief in relation to the proposal to submit Stage 2 of the Kakadu National Park for inclusion on the World Heritage List. The general nature of the case sought to be made by the applicants is sufficiently indicated for present purposes by paras.23-35 of their points of claim. After referring to the letters written by Senator Evans and the first respondent on 8 and 16 September respectively (para.23), the points of claim continue: 25. 26. 16. The effect of including in a submission for World Heritage Listing areas of land the subject of the Licences referred to in paragraph 6 hereof 1s: (a) to extinguish and render nugatory and valueless the raghts and interests of the Applicants set forth in paragraph 7 hereof; (b) to deprive the Applicants of the benefit of, and to render valueless, the expenditure referred to in paragraph 8 hereof; (c) to defeat, destroy and frustrate the reasonable and legitimate expectations of the Applicants of being permitted to mine the deposits discovered by them and any other deposits within the lands the subject of the Licences. . Prior to 17 September 1986 the Applicants made known to the Third Respondent their desire to be heard and make representations in respect of any proposed nomination of Stage II of the Kakadu National Park for listing on the World Heritage List. . By reason of the matters aforesaid the First Respondent and the Third Respondent were obliged to hear and consult with the Applicants and the Northern Territory Government prior to nominating Stage II of the Kakadu National Park for 27. 28. 29. 30. 17. listing on the World Heritage List. In breach of the said obligation and without any prior consultation with or knowledge of the Applicants or the Northern Territory Government the First Respondent or, alternatively, the Third Respondent on or about 17 September 1986 nominated Stage II of Kakadu National Park for listing on the World Heritage List. In the circumstances the decision to so nominate Stage II of the Kakadu National Park was ultra vires and void or, alternatively, voidable. Purther, or alternatively in making the said decision the First Respondent and the Third Respondent were bound and obliged to:- (a) take into account all relevant considerations including the rights and interests of the Applicants in lands comprised within the areas proposed to be nominated for World Heritage Listing and in the minerals lying on, in, and under the said lands in their natural state being interests of the kind referred to in Section 8B of the National Parks and Wildlife Conservation Act 1975; (b) consider the merits of excluding from the area nominated for such listing lands in respect of which the Applicants had such rights and interests. The area nominated for listing by the First Respondent or, alternatively, by the third Respondent included all areas of land within Stage II of the Kakadu National Park in which the Applicants had rights and interests pursuant to the 18. Licences referred to in paragraph 6 hereof. 31. In breach of the obligations specified in paragraph 28 hereof the First Respondent or, alternatively, the Third Respondent: (a) did not take into account the said relevant consideration; (b) did not consider the said merits. 32. In the circumstances the said decision was ultra vires and void or, alternatively, voidable. 33. Further or alternatively the decision to nominate Stage II of the Kakadu National Park was manifestly unreasonable in that it was so unreasonable in the circumstances that no reasonable person in the position of the First Respondent could have come to it. 34, In the circumstances the said decision was ultra vires and void or, alternatively voidable. 35. The Applicants fear that, unless restrained, the Governor— General will make Proclamations under section 6(3) or section 7 of the World Heritage Properties Conservation Act 1973 1n respect of the lands the subject of the nomination referred to in paragraph 26 hereof. The applicants then claim the following final relief: 19. 36. The Applicants claim:- (a) (b) (c) (d) (e) A declaration that the Governor~General is not presently entitled to make any Proclamation pursuant to sections 6 or 7 of the World Heritage Properties Conservation Act 1983 in respect of the land nominated for inclusion on the World Heritage List as set forth 1n paragraph 26 hereof; A declaration that the decision to make the nomination referred to in paragraph 26 hereof was ultra vires and void or, alternatively, voidable. An injunction restraining the First Respondent from taking any further steps to prosecute, support, promote or otherwise further the nomination of Stage II of the Kakadu National Park for inclusion on the World Heritage List. A mandatory injunction requiring the First Respondent to take all steps reasonably open and available to him to cause the said nomination to be withdrawn or deferred. A mandatory injunction requiring the First Respondent to fully consult and hear and properly consider the submissions of the Applicants prior to: (1) taking any further step to promote, support or further the nomination of Stage II of the Kakadu National Park for inclusion on the World Heritage List; (£) (9g) 20. (ii) taking any step to renominate Stage II of the Kakadu National Park for inclusion in the World Heritage List; An injunction restraining the Governor-General from making any Proclamation in respect of Stage II of the Kakadu National Park pursuant to section 6(3) or section 7 of the World Heritage Properties Conservation Act 1983. An injunction restraining the Governor-General from taking any steps to make a Proclamation pursuant to section 6(3) or section 7 of the said Act without first having fully consulted the Applicants and without first having fully listened to and considered their submissions about the making of such Proclamations. In their notice of motion for interlocutory relief, the applicants seek orders: An injunction pending the determination of these proceedings restraining the Respondents from giving the consent contemplated by Article 11.3 of the Convention for the Protection of the World Cultural and Natural Heritage in respect of the area known or formerly known as the Kakadu National Park Stage II. Alternatively, an injunction pending the determination of these proceedings restraining the Respondents from giving the consent contemplated by Article 11.3 of the Convention for the Protection of the World Cultural and Natural Heritage in respect of that part of the area known or formerly known as the Kakadu National Park Stage II which comprises or includes the land in respect of which the Applicants or any of them claim an interest by reason of the licences ceferred to in paragraphs 9-1l, 13-23, 35-40, 44, 45, and 55-57 of the longer affidavit of Geoffrey Harold Sherrington sworn on 13th November, 1986. An injunction requiring the Respondents to withdraw, pending the determination of these proceedings, any consent given by them or any of them pursuant to Article 11.3 of the Convention for the Protection of the World Cultural and Natural Heritage in respect of the area known or formerly known as the Kakadu National Park Stage II. Alternatively, an injunction requiring the Respondents to withdraw, pending the determination of these proceedings, 22. any consent given by them or any of them pursuant to Article 11.3 of the Convention for the Protection of the World Cultural and Natural Heritage in respect of that part of the area known or formerly known as the Kakadu National Park Stage II which comprises or includes the land in respect of which the Applicants or any of them claim an interest by reason of the licences referred to in paragraphs 9-11, 13- 23, 35-40, 44, 45, and 55-57 of the longer affidavit of Geoffrey Harold Sherrington sworn on 13th November, 1986. In order to obtain an =interim 9 injunction, the applicants must show: (a) there is a serious question to be tried; (b) unless the respondents are restrained, the applicants will probably suffer irreparable injury for which damages are not the adequate compensation; (c) the balance of convenience is in favour of the applicants (see, e.g. Castlemaine Tooheys Limited v. The State of South Australia, 3 October 1986, per Mason A.C.Jd. at pp.5-6).- 23. In my opinion, the applicants have established that a serious question arises for trial in the principal proceedings insofar as their case is put on the grounds of a denial of natural justice (see Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321 per Mason J. at pp.345-8; per Wilson J. at pp.359-61; per Brennan J. at p.373; per Deane J. at pp.383-4). In Kioa, Brennan J. said (at p.373): "When the repository is bound, or is entitled to have regard, to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to _ be exercised." The present legislative scheme consisting in part of Commonwealth legislation (see, e.g. ss.8B and 10 of the National Parks and Wildlife Conservation Act and Part III of the Atomic Energy Act 1953) and in part of Territory legislation (see, e.g. 8.176 of the Mining Act (N.T.) 1980) recognises the interest, in mining terms, of the applicants in that part of Stage 2 of Kakadu National Park known as Munmarlary project area. For instance, by 8.8B(1) and (2) of the National Parks and Wildlife Conservation Act: 24. "8B.(1) Where any land is within a park, reserve or conservation zone - (a) subject to paragraph (b), the prescribed provisions of this Act and of the regulations and, in the case of a park or reserve, the provisions of the plan of management do not affect - (i) any interest in respect of that land or in respect of any minerals on, in or beneath that land held immediately before that land was within the park, reserve or conservation zone by any person other than the Commonwealth or the Director; or (ii) the application of any law of a State or Territory in relation to such an interest; and (b) notwithstanding anything to the contrary contained in any law of the Commonwealth or of a State or Territory, an interest referred to in sub-paragraph (a)(i) (not being an interest in respect of minerals beneath the land concerned) shall not be renewed, and the term of such an interest shall not be extended, except with the consent in writing of the Minister and subject to such conditions as the Minister determines. (2) A person adversely affected by the refusal of the Minister to give consent, or by the imposition of conditions, under paragraph (1)(b) is entitled to be paid reasonable compensation by the Commonwealth." > It is contended on behalf of the applicants that if Stage 2 of the park were to be listed by the Committee, Australia would become bound, by virtue of the terms of Article 5(d) of the Convention, to take, inter alia, "the appropriate...legal... measures necessary for the...conservation of this heritage." The applicants say that it is likely that good faith in the exercise 25. of the powers available to the Commonwealth in the discharge of its international obligation would probably require the enactment of legislation to exclude the applicants from any mining operations in any part of Stage 2 of the park (see the Franklin Dams case per Mason J. at pp.696~-700; per Murphy J. at p.734; per Brennan J. at p.771; per Deane J. at pp.806-9). In those circumstances, it is said by the applicants that the making of the decision to submit Stage 2 of the Park for listing without affording them an adequate opportunity to be heard on the point was in breach of the rules of natural justice. It is unnecessary and, indeed, inappropriate at this stage that I say any more on the point than that I think that it raises a serious question to be tried. That being so, it is not appropriate that I now embark upon a consideration of the merits or otherwise of the other, alternative ways in which the applicants sought to put their case such as their contention that the decision-maker failed to take into account relevant considerations of the kind discussed in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 A.L.R. 299). It follows from what I have said on the issue whether there is a serious question to be tried that I am also of the view that if some interim restraint is not now granted, it is probable that listing will occur and that the Commonwealth will then proceed to enact legislation which, in accordance with the 26. international obligation imposed by Art.5(d) of the Convention, will have the effect of prohibiting the applicants from carrying on exploratory or mining operations ainStage 2 of the Park. Before going to the question of the balance of convenience, I should mention three specific submissions advanced on the part of the respondents. First, it was contended that the matters now in issue involved the exercise of the royal prerogative to make treaties with the consequence that the proceedings raised questions which were not justiciable (see Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 per Lord Roskill at pp.416-7). But the House of Lords there held that executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from the general law, including the prerogative. It may be a question whether the High Court will follow the reasoning of the House of Lords (see Kioa per Brennan J. at p-367; A.v. Hayden (1984) 156 C.L.R. 532 at p.590; Brennan J. "The Purpose and Scope of Judicial Review" (1986) 2 Aust. Bar Rev. at pp.102-3; G. Sawer The External Affairs Power (1983-1984) 14 FL. Rev. at pp.199-201). It is inappropriate to endeavour to resolve such a question at the interlocutory stage. In any event, the decision presently under challenge does not involve the prerogative: it is a statutory condition precedent to the exercise of the powers contained in ss.6 and 7 of the World Heritage Properties Conservation Act. 27. Second, it was argued on behalf of the respondents that the applicants' case was misconceived because it amounted to an attempt to assert that the Convention conferred private rights on them. In my view, the submission should be rejected. It is trite law that an international treaty to which Australia is a party forms no part of Australian law in the absence of legislation implementing it so that, the treaty, of its own force, cannot confer rights on subjects (see, e.g., Simsek v. MacPhee (1982) 148 C.L.R. 636 per Stephen J. at pp.641-2). But in the present case, the applicants' challenge is grounded upon executive action taken pursuant to the World Heritage Properties Conservation Act with a view to the exercise of the powers contained in ss.6 and 7 of that Act. True, the existence of the Convention is important both as to the context in which the executive action takes place (cf. Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 C.L.R. 290 per Mason J., Deane J. and Dawson J. at pp.302-3) and as bearing upon the probabilities as to whether the powers in ss.6 and 7 of the Act will be exercised. But that is a different matter. Third, it was suggested that the applicants were guilty of laches or delay. Since the submission for the listing of Stage 2 of the Park was made as recently as 17 September, there can be no suggestion of unreasonable delay on the part of the applicants. I turn next to the baiance of convenience. This issue 28. must be considered against the background that the final hearing of the proceedings has been expedited and is fixed to commence in Darwin on 8 December. It is anticipated that the final hearing will conclude on 12 December and that judgment will be given shortly thereafter. It is said on behalf of the respondents that Australia may suffer some loss of prestige in the international community if it were now ordered to withdraw its consent to the listing as is required by Article 11.3 of the Convention. Moreover, the applicants' only interest in the said lands comprising Stage 2 of the Park is an area of about 65 square kms. out of a total area of about 7,000 square kms. I therefore decline to order that the Commonwealth now withdraw its consent to the listing as a whole. On the other hand, the applicants face the real prospect that if no interim relief is now granted, the listing of Stage 2 will proceed and that consequential legislation will be enacted which will deprive the applicants of their existing mining rights (cf. the Franklin Dams case per Deane J. at p.800). In my judgment, the appropriate method of preserving the status quo in these circumstances is to grant limited relief directing the respondents to inform the Committee of the following: (a) that the applicants claim to be entitled to certain mining rights over an area of approximately 65 square kms. situated within (b) (c) (da) (e) 29. the boundaries of the Stage 2 extension, which area is described in the schedule to the orders made herein; that the applicants have recently commenced proceedings in the Federal Court of Australia seeking to restrain the consent of the Commonwealth of Australia to the listing and to require that consent to be withdrawn; that the proceedings have been fixed for a final hearing to commence on 8 December 1986; that it is anticipated that the proceedings will conclude on 12 December 1986 and that the judgment of the Court will be given shortly thereafter; that, with a view to preserving the status quo until judgment in the proceedings in respect only of the area described in the schedule (and not otherwise), the Federal Court of Australia has directed the respondents to request the World Heritage Committee to defer, until further notice, its consideration of so much of the application for the listing as includes the area described in the schedule to «5S oe 30. the orders. For these reasons, upon the applicants giving the usual undertaking as to damages, the orders dated 24 November 1986 were made. I certify that this and the twenty-nine preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont. Lhe 4 Vn Associate Dated: 26 November 1986. Counsel and Solicitors for Appé¢ ants: R.A. Conti Q.C. with Mr. A. Sullivan instructed by Clayton Utz. Counsel and Solicitors for Respondents: D.M.J. Bennett Q.C. with Ms.C. Simpson instructed by Australian G'ment Solicitor