AA bill 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, 9 and 10~ without glving 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. PEKO-WALLSEND LIMITED & ORS. (Applicants), THE HONOURABLE BARRY COHEN, MINISTER FOR APTS, HERITAGE AND ENVIRONMENT (First respondent), THE HONOURABLE LIONEL F. BOWEN, ATTORNEY-GENERAL OF THE COMMONWEALTE OF AUSTRALIA (Second respondent) AND THE COMMONWEALTH OF AUSTRALIA (Third respondent). ~~ No. NTG 9 of 1986 Beaumont J. Sydney 22 December 1986 " IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY) No. NTG 9 of 1986 ) ) GENERAL DIVISION Judge making order: Date order made: Where made: 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 ENVIRTONMENT First respondent THE HONOURABLE LIONEL F. BOWEN, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second respondent THE COMMONWEALTH OF AUSTRALIA Third respondent MINUTES OF ORDER THE COURT ORDERS THAT: i. Note: Sydney Beaumont, J. 22 December 1986 Declare that the decision of the Executive made on 16 September 1986 to nominate Stage 2 of Kakadu National Park for inclusion on the World Heritage List. 1s void. Order that the respondents pay the applicants' costs. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY) No. NTG 9 of 1986 ) ) GENERAL DIVISION BETWEEN s PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC CO. OF AUSTRALASIA Applicants AND: THE HONOURABLE BARRY COHEN MINISTER FOR ARTS, HERITAGE AND ENVIRTONMENT First respondent AND: THE HONOURABLE LIONEL F. BOWEN, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second respondent THE COMMONWEALTH OF AUSTRALIA Third respondent CORAM BEAUMONT J. DATED 22 December 1986 REASONS FOR JUDGMENT In August 1974, Australia ratified the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention"). Under 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 2. and 2 thereof and situated on its territory belongs primarily to that State. It will do all it can to this end (Art.4). By Article 1 the following shall be considered as heritage": "monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaelogical nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: .... sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view." "Natural heritage" 1s defined by Article 2 as follows: "natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas wnich constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty." To ensure that effective and active measures "cultural are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, shall technical, each State Party endeavour to take the appropriate legal, scientific, administrative and financial measures necessary for 3. 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 1s the duty of the international community as a whole to co-operate (Art.6). Article 11 provides: "1. Every State Party to this Convention shall, in so far as possible, submit to the World Heritage 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 tne basis of tne 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 Heritage List requires the consent of the State concerned...." Australia's obligations under the Convention are dealt with by the World Heritage Properties Conservation Act 1983 ("the 4. . Heritage Act"). Under the Heritage Act, a Proclamation may be made under s.6(3) in relation to "identified property" that 1s not in any State (for instance, property situated in a Territory) (s.6(1)). A reference in the Heritage 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 (11) has been declared by the regulations to form part of the cultural heritage or natural heritage; or (b) -any part of property referred to in paragraph (a)." (s.3(2)). where tne Governor-General 1s satisfied that any property in respect of which a Proclamation may be made urle2r s.6(3) 18 Deing or 1s likely to be damaged or destroved, he may, by Proclamation, declare that property to be property to which s.9 applies (s.6(3)). Except with the consent in writing of the Minister, it 1s unlawtul for a person, if an act is prescribed for the purposes of this paragraph in relation to particular Property to which tkis section applies, to do that act in relation to that property (s.9(1)(h)). Where the Governor-General 1s satisfied that any identified property 1s being or 1s likely «*o be damaged or destroyed, he may, by 5. Proclamation, declare that property to be property to which s.10 applies (s.7). It 1s unlawful for a trading corporation to carry out Mining operations on any property to which s.10 applies (s.10). (See generally as to the effect of the Convention, Commonwealth of Australia v. State of Tasmania (1983) 46 A.L.R. 625.) On 16 September 1986, in circumstances to be elaborated later, the Australian government decided to submit to the World Heritage Committee under Article 11 of the Convention a site having an area of 6929 sq. kms. known as Stage 2 of the Kakadu National Park as sultable for inclusion in the World Heritage List. This decision 1s sought to be challenged by judicial review in these proceedings which are brought under s.39B(1) of the Judiciary Act 1903. Stage 1 of Kakadu National Park was included on the Werld Heritage list on 30 October 1981. In inscribing it, the World Heritage 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 1s common ground that the additional areas referred to include Kakadu Stage 2 and that the relevant legislation is the National Parks and Wildlife Conservation Act 1975 ("the National Parks Act"). The history of acquisition by the Commonwealth of the 6. lands making up the Park and of the stages by which 1t was proclaimed as a National Park under the National Parks Act 158 described 1n my reasons for judgment for granting interim relief (26 November 1986) and need not be repeated here. The applicants hold various mining rights or interests in respect of approximately thirty small areas which together make up about one per cent of the total area of Kakadu Stage 2. They claim that 1f Kakadu Stage 2 is listed in the World Heritage List, a consequence will be that their mining rights or interests willl be extinguished aS a result of the inevitable process of events culminating in the exercise of the wide-ranging powers conferred upon the Executive by the Heritage Act. They say that in making the decision to submit the site for listing, the government denied them natural justice by failing to give them an adequate opportunity to be heard on the question. They contend that the government's decision should be set aside on this ground and seek declaratory relief and injunctions directed to the respondents who are respectively, the Minister for Arts, Heritage and Environment, the Attorney-General of the Commonwealth and the Commonwealth, to cause the submission for listing to be withdrawn or deferred, at least so far as 1t affects their mining interests. They seek judicial review and Similar relief on the further ground that, in making its decision to apply for the listing of the area, the government failed to take into account material considerations and that the decision was "manifestly unreasonable" in the sense explained in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K.B. 223. Since at least 1973, the applicants' mining rights or interests in the Kakadu National Park have been the subject of discussion and correspondence between the government and the applicants. The first communication from the government of significance for present purposes was a letter to the third applicant dated 21 December 1973 written by Dr. Rex Patterson, then Minister for the Northern Territory: "IT refer to your applications for renewal of Exploration Licences Nos 219 and 220. These applications relate to areas that extend into the area proposed as a national park in the Alligator Rivers region. I wish to confirm the advice given on my behalf by the Secretary of the Department of the Northern Territory, to your company's representatives during recent discussions in Darwin. The Government 1s not opposed to renewal of the licences to 31 December 1974, in respect of so much of the areas applied for as lies outside the boundary of the proposed park. It 1s oppesed to renewal of the licences in respect of any area tnat lies within the boundary of the proposed park. It is the intention of the Government, at the February 1974 sittings of the Northern Territory Legislative Council, to introduce new legislation providing for the creation of national parks in the Northern Territory, and for the issue of rights under that legislation to allow prospecting to be carried out within those national parks under suitable conditions. {The legislation proposed was not, in fact, introduced.] I am authorised by the Government to assure you that, 1f your applications for renewal of licences are approved only in respect of areas outside the boundary of the proposed park, you will, upon commencement of the new legislation, be iyssued with fresh licences under that legislation in respect of the areas within the 8. park boundary to which your current renewal applications relate. Please be assured that my officers will be available to discuss any matter of concern to you." (Approximately one-quarter of the areas mentioned in this letter are in Kakadu Stage 2). On 24 April 1978, Mr. Malcolm Fraser, then Prime Minister, wrote to the first applicant: "I refer to your letter of 24 February 1978 concerning the matter of exploration and mining within the proposed Stage ll of the Kakadu National Park. The Government's policy has not changed in relation to Stage ll of the Park either in respect to exploration, development and mining activities, or to Aboriginal land rights. In my statement of 9 February 1978 I clarified and emphasised the Government's position on Aboriginal land rights in relation to Stage 11 including the application of Aboriginal consent, Until claims by the Aboriginal people in Stage ll of the National Park have been determined the Government will not permit granting sf mining interests over ctnat land without their prior consultation and agreement. This assurance has been given on the understanding that claims will be lodged as soon as practicable and preferably not later than the end of this year. The Government introduced amending legislation unto the Parliament on 10 April 1978 which will provide a legislative basis for exploration, development and mining activities in the Stage ll area, while at the same time providing for adequate controls to protect the environment and the interests of the Aboriginal people. A copy of the legislation and the Second reading speech of the Minister for Environment, Housing and Community Development are attached. No part of the Stage 1l area will be incorporated into the Kakadu National Park until the mineral potential of that area has been assessed. The question of excision of any potential mining areas from that area to be later declared as part of the Kakadu 9. National Park 1s not so urgent as to require an early decision, but will be considered at such time as the mineral resources of the area have been assessed and declaration as part of the Kakadu National Park is imminent...." (The proposed legislation mentioned by Mr. Fraser included s.8B of the National Parks Act). On 4 June 1981, Senator J.L. Carrick, then Minister for National Development and Energy, wrote to the fourth applicant: "I refer to your letters of 2 and 21 April 1981 in relation to your company's exploration activities in the Alligator Rivers Region and the Aboriginal land claims over the Stage II area of the Kakadu National Park. I confirm your understanding that mineral exploration in the Alligator Rivers Region comes within my portfolio responsibilities. The Commonwealth Government's policies in relation to exploration in the Region may be briefly stated as follows. When announcing the decision in August 1977 to proceed with the further development of the Australian uranium industry, the Government statec Enat no exnloration would be permitted for the time being in tne Stage I area of the National Par< (as proclaimed 1 April 1979), and that future exploration would be carefully controiled in accordance with the Park Plan of Management. The Plan of Management for the Park, which came into effect on 2 April 1981, provides that operations for the recovery of minerals may be carried on in the Park during the period of the Plan where these have been approved by the Governor-General. However, the Government's policy continues to be that exploration in Stage I should not proceed for the time being. The Government 1s aware of the undertakings given in 1973 by the then Minister for the Northern Territory to a number of companies concerning former exploration licences covering areas now within the Kakadu National Park. The Government has not yet addressed this issue, pending 1ts decision on when exploration activities within the Park may be resumed. At 10. the appropriate time the matter will be considered in consultation with the Northern Territory Government. With respect to the Stage II area, the Government announced that the area would be proclaimed at a later time, but beforehand exploration would be permitted under strictly controlled conditions. Prior to incorporating the area in the Kakadu National Park, the Government will declare the area as a conservation zone, and a tightly controlled exploration program under Commonwealth supervision will be allowed to proceed to identify the resources of the area, and to enable appropriate action to be taken. These arrangements are subject to meeting Aboriginal interests in the area. A recommendation on the granting of the Aboriginal Land Claim over the Stage II area 1S being prepared by the Aboriginal Land Commissioner, Mr. Justice Toohey. My Department 1s taking steps to ensure that exploration in the Stage II area can commence when the Stage II Land Claim has_ been determined..." (The Aboriginal Land Claim, made under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"), mentioned by Senator Carrick was not resoived untii 13 November 1936 when Mr. Ciyde Holding, the Minister for Aboriginal Affairs ultimately decided to grant the land in question (approximately 400 sq. kms. or about 7% of Kakadu Stage 2) to the Jabiluka Land Trust upon a reconsideration of the matter as directed by an order of the Full Federal Court, the Minister's appeal to the High Court having been dismissed in July 1986: see Minister for 'Aboriginal Affairs v. Peko-wWallsend Ltd.(1986) 66 A.L.R. 299. Title to land granted under the Land Rights Act carries no right to the ll. minerals thereunder but includes a power to prevent mining (see "Aboriginal Land" by John Toohey (1985) 15 F.L. Rev. 159 at pp.171-2). In a news release announcing the grant, Mr. Holding said that "he wanted to emphasise that the granting of the land title was not related in any way to the Federal Government's decision not to allow mining in Stages l and II of Kakadu National Park.") In September 1983, Senator Peter Walsh, then Minister for Resources and Energy, wrote to the first applicant: "I refer to your letter of 18 August 1983 concerning future exploration and mining development in the Stage II area of Kakadu National Park. I have noted the information provided by you. The future of Stage II involves many complex options covering mining exploration and development, environment and the Government's resvonsibilities towards Aboriginals. As Indicated in my letter to you of 27 June 1983 cna Government nas yet to examine the issues involved. Your representation will be taken Lato account at the appropriate time and announcements will be made when the Government has completed its examination." In a news release dated 19 November 1983, Mr. Cohen announced: "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 deritage List. Stage Two includes wetlands of major international significance, mangroves that are of great scientific interest, extensive archaeological sites and places of considerable 12. recreational importance." In a news release dated 29 February 1984, upon the proclamation of Kakadu Stage 2 as a National Park, Mr. Cohen said that "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." It appears that in March 1986, Mr. Cohen proposed to the Prime Minister that Kakadu Stage 2 be submitted for World Heritage listing. This proposal caused some concern within the Department of Resources and Energy according to a minute dated 13 June 1986 to Senator Evans from Mr. John Kerr, Acting Assistant Secretary, Minerals No. 1 Branch, Coal and Mineral Division - "Irrespective of the legal position, we believe listing would create greater public awareness of the area and increased expectations about ensuring 1ts protection which would make agreement to any future proposals to explore or mine in the area more difficult to obtain.... Mineral Potential BMR views fhe Xakadu region as oronably the least explored of the worid's great minerai provinces and ranking as one of the regions of hignesct potential for further Significant discoveries with only moderate exploration effort. Geopeko has advised that 1t considers Stage 2 more prospective than Gimbat and Goodparla... Recommendation That you sign the attached draft letter to Mr. Cohen seeking to have the question of World Heritage listing of Stage 2 considered in the context of the development of the Plan of Management of Kakadu National Park, and the outcome of the Senate Inquiry into the Resources of the Kakadu Region." 13. On 22 June 1986, Senator Evans wrote a note on the minute indicating his agreement with the recommendation and added a comment: "T suspect that further significant exploration/mining in Stage 2 18 now a lost cause - but no harm in knowing what we're doing before irrevocably committed. I'd welcome a BMR briefing on the prospectivity of Stage 2 - esp. in comparison w. Gimbat-Gooparla." On 8 September 1986, Senator Evans wrote to the third applicant: "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 1s necessary to give effect to the Plan's key management obtective of developing an inventory of all renewable and aon renewable resources 1n 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." On 16 September 1986, Mr. Cohen wrote to Mr. Barry Coulter, Northern Territory Minister for Mines and Energy: "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 14. Rivers Region, the previous Commonwealth Government accepted that 1t 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 uncorporated 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 Juiy 19384 meeting of the Council 3F VYacares Conservation Ministers (CONCOM} and inciudea, 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." The letter was not received until 19 September and was not seen by any of the applicants until shortly after that date. Meanwhile, on 15 and 16 September, Federal Cabinet considered the matter. The only evidence offered by the 15. respondents in relation to the decision-making process, apart from a joint statement issued on 16 September by Mr. Cohen and Senator Evans, is a letter from the Acting Director, Parliamentary and Liaison addressed to Professor J.D. Ovington, Director of Australian National Parks and Wildlife Service: "On 15 and 16 September the Government discussed Kakadu National Park and: (a) agreed that the provisions relating to mineral exploitation in the Plan of Management to be submitted to Parliament for Kakadu Stages I and II should be in accordance with Section 11.6 of the Draft Plan proposed by the Director of the Australian National Parks and Wildlife Service, ie with no provision being made for exploration or recovery of minerals outside pre-existing leases; (b) agreed that action should be taken forthwith to nominate Stage II for inclusion on the World Heritage List; (9) agreed to the Ministers for Resources and Energy, and Arts, deritage and Environment, anncuncing these decisions forthwith;" On 16 September, Mr. Cohen and Senator Evans issued this joint statement: "The Government agreed today to endorse a revised Plan of Management for the Kakadu National Park which would exclude the possibility of any new Mining activity taking place within the Park boundaries. The Government also agreed that immediate steps should be taken to nominate Stage II of the Park for inclusion on the World Heritage List. Stage I, covering 6144 sq km, was declared in 1979 and listed as a World Heritage site in 1981; Stage II, covering 6929 sq km was declared part of the Kakadu National Park in 1984. 16. The World Heritage List identifies areas of "outstanding universai value', the disappearance or destruction of which would constitute a "harmful impoverishment of the heritage of all nations of the world'. Stage II of Kakadu National Park will be a fitting addition to the World Heritage List. It includes wetlands of Major international significance, mangroves of great scientific interest and extensive archaelogical and rock art sites. The revised terms of the Plan of Management for Stages I and II to be submitted to Parliament will be along the lines of the Draft Plan publicly circulated by the Director of the Australian National Parks and Wildlife Service. The provisions in question differ from the previous Plan, now expired, which enabled exploration and mining to take place outside pre-existing leases with the approval of the Governor-General. The existing Gimbat and Goodparla pastoral leases are not part of the Kakadu National Park. In a further major decision, the Government agreed to enlarge the boundaries of the Park into the existing Gimbat and Goodparla leases, which between them cover 6726 sq km and include a large area of the catchment of the South Alligator River. Significant areas of these pastoral leases - including the area covered by the BHP-led Coronation Hill exploration project - have been the subject of previous mining actlvity, and at least a third of the total area has been assessed by the Bureau of Mineral Resources as hignly prospectiv , for minerais, especially gold and platinum. Under these circumstances, Cabinet has agreed that the further extension of the Park should be subject to arrangements which will ensure that a full assessment of the resource potential of the area takes place. The details of the Stage III extension, including the mechanisms to ensure the full enviromental protection of the South Alligator River system, will be the subject of further consideration by the Cabinet and Caucus in the near future. The Government has also given specific consideration to the future of the Coronation Hill mineral lease (located within the Gimbat pastoral lease) which is presently the subject of intensive exploration and evaluation for gold and platinum by a joint venture comprising BHP, Noranda Pty Ltd and EZ Industries. It has been 17. agreed that the economic potential of this project is such that provision should be made for the exclusion from any National Park extension of an appropriate mining lease area, and the project allowed to proceed subject to normal environmental, Aboriginal heritage and related clearances. An important element in the Government's decision has been the assessments of the mineral potential of the various areas - necessarily tentative at this stage ~- that have been made by the BMR on the basis of all known existing information. The present National Park area (Stages 1 and 11) has been assessed by the BMR as being very highly prospective for uranium, but only moderately prospective for gold, platinum and base metals; un the proposed Gimbat/Goodparla Stage III extension area, by contrast, the BMR''s assessment is one of high potential for gold and platinum, but = only moderate prospectivity for uranium. There is no question, under ALP policy, of any new uranium deposit being mined - whether inside Or outside National Park boundaries, in the Northern Territory or anywhere else. By contrast, there 1s no policy restriction on gold or platinum mining, subject only to environmental and related considerations, and prevailing world market prices offer a very strong incentive, in the present economic climace, for the develcoment o7 new gold and piatinum projects." (Zt should be noted, first, that the plan of management is the subject of challenge in an action heard concurrently with these proceedings; and secondly, that although no consultation with the Northern Territory government took place as foreshadowed in Mr. applicants accept that they cannot rely on any failure on Cohen's letter to Mr. Coulter dated 16 September 1986, respondents' part 1n this respect to support their case.) government to the World Heritage Committee for inclusion on On 17 September, Kakadu Stage 2 was submitted by the the the the 18. World Heritage List. It was then proposed that the submission be dealt with by that Committee in its annual session to be held in the week commencing on 24 November. On that date, interim relief was granted directing the respondents to inform the Committee of certain matters for the reasons I gave on 26 November 1986. It appears that, later in that week, the government informed the Committee that it wished its submission to be deferred, in 1ts entirety, until the Committee's next session in November 1987. On 12 November 1986, the Prime Minister, Mr. R.J.L. Hawke, wrote to the first applicant: ",..I should make it clear that the Government will not allow mining of any sort in the areas comprising Stages 1 and 2 of Kakadu National Park. Nor will the Government permit any new mineral exploration in those areas. You will be aware that the Government has decided to proceed with the listing of Stage 2 under the World Heritage Convention. fo oor 12 I recognise that Ceopeko has a number of "existing mineral leases within Stage 2 that pro wie & tacted under tae Vat.onal Parks anc Wiidclize Conservation Act, i reaffirm tnac 10 Mineral exploration will be permitted outside these areas and that the Government will not countenance any mining in Stages 1 and 2...." Hot To understand the significance of the respective contentions of the parties, it 1s necessary to describe, in greater detail, first, the history of the acquisition of the applicants' mining rights or interests in the Alligator Rivers Region of the Northern Territory; and secondly, some background matters concerning the plan of management for Kakadu Stage 2. On 31 July 1967, the third applicant entered into a 19. joint venture agreement, known as the Gondwana J.V., with the fourth applicant. The object of the joint venture was to explore for minerals in northern Australia, including the Alligator Rivers Region. The third applicant 1s the manager of the joint venture. Since 1969, pursuant to the Gondwana J.V., a number of mining rights or interests in part of Kakadu Stage 2 known as the Munmarlary project area have been applied for or acquired - in some instances in the name of the second applicant - in other cases in the joint names of the third and fourth applicants. [In all, there are 14 existing mineral leases and 397 other mining rights or interests, consisting of applications for exploration retention leases and applications for mineral claims. Details of these mining rights or interests are set out in the document annexed to the schedule to the interim orders made on 24 November 1986. The early history of the acquisition by the applicants of their mining interests or rights in the form of authorities to prospect and exploration licences granted pursuant to the Mining Th Ordinances 1929 (N.T.) 1s described 11 daras 9 t3 l4 9 tne affidavit of Mr. G.H. Sherrington sworn on 13 November 1986. Thereafter, between October and December 1973, the Gondwana J.V. applied for mineral leases over the areas known as Ranger 4, Ranger 19, Ranger 23, Ranger 24, Ranger 29, Ranger 30, Ranger 33, Ranger 34, Ranger 44 and Ranger 50. The mineral lease applications for Ranger 44 and Ranger 30 were for base metals only as no signs of the presence of uranium mineralisation were detected. (Ranger 19 is within what 1S now known as the Ranger Project Area, an area excised from Kakadu National Park.) Some of the foregoing areas were the subject of the letter written by 20. Dr. Patterson on 21 December 1973 previously quoted. In that context, in late 1973, the Gondwana J.V. applied for the renewal of exploration licences 219 and 220 excepting thereout the areas mentioned in Dr. Patterson's letter. These exploration licences were renewed, subject to the exception mentioned. [In April 1974, the mining warden recommended the grant of the mineral leases applied for in late 1973. In October and November 1974, the 14 mineral leases already mentioned were granted for a term of 21 years in respect of Ranger 2, 4, 44 and 50 (ML 311A, 312A, 313A, 489A-492A, 543A-546A, 562A-564A). From October to December 1976, after the expiry of exploration licences 219 and 220, mineral leases were applied for at Ranger 4, Ranger 7, Ranger 18, Ranger 19, Ranger 31, Ranger 32, Ranger 48, Ranger 52, Ranger 61, Rangers 64-67, Ranger 69 and Ranger 70, (Ranger 18, 19 and 48 are within the Ranger Project Area.) All tnese areas have been recommended for avant dy the mining warden. The relationshis setween tte applicants' interests or rights under tne Mining Ordinance 1939 (N.T.) and the Northern Territory (Commonwealth Lands) Act 1980 and the Atomic Energy Act 1953 was discussed by Toohey J,. at paras, 307-9 of his report which are guoted in the reasons given on 26 November 1986. On 1 July 1982, the Mining Act 1980 (N.T.) came into operation. It repealed the Mining Ordinance 1939 (N.T.). The new legislation provided, in Part V, for the grant of exploration retention leases. Subject to.the Act, a miner (i.e. the holder 21. of a miner's right - the applicants have held such rights at material times) who was the holder of an exploration licence under the repealed ordinance and had applied before the commencement of the 1980 Act for a mineral lease in respect of all or any part of the land held under that exploration licence and the application had not been processed before the commencement of the Act, may apply to the Minister to be granted an exploration retention lease in respect of any part of the land (s.38(1)(b)). Pursuant to this provision, in November 1982 the applicants applied for exploration retention leases over parts of the Munmarlary project area. The applicants also then elected to have their outstanding applications for mineral leases under the 1939 Ordinance treated as if they were applications under the 1980 Act for mineral claims. (By the savings and transitional provisions of s.191 of the 1980 Act, this course is permitted at the election of an applicant.) By virtue of the various interests or cights caus asid v7] by them, the applicants have the following, inter alia, rights under the Mining Act 1980: (a) The right to possession conferred by the mineral leases granted under the 1939 Ordinance. (By s.191(5) of the 1980 Act, a Mining lease in force under the 1939 Ordinance 1s deemed to be a mineral lease granted under Part VI of the 1980 Act.) (b) A right to continue to carry out exploration 22. activities on the areas the subject of the applications for exploration retention leases. (By s.39(2) of the 1980 Act, an applicant for an exploration retention lease, may, notwithstanding that his exploration licence has expired, continue to carry out exploration activities until the expiration of 14 days after the date he is notified that the Minister has refused to grant his application.) (c) In connection with their mineral claim applications (see s.191(7) of the 1980 Act), the rights conferred by the 1980 Act upon the holder of a miner's right (see, e.g. s.1l). Pending the resolution of the land claim under the Land Rights Act, which, as noted, has only recentiv serucrad, 10 maining operations have been carried out on the subject areas. However, the applicants have incurred substantial expenditure in carrying out geophysical surveys of the sites and un commissioning mining feasibility studies. A dissection of this expenditure is made in Exhibit "N", In considering the legal status of the mining rights or interests held by the applicant, reference should also be made to the relevant provisions of two Commonwealth statutes. First, by s.8B of the National Parks Act: 23. "6B. (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 sSub-paragraph (a)(1) (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 letermines. (2) A person adversely affected by the refusal of the Minister to give consent, or by the imposition of conditions, under paragraph (1)(b) 1s entitled to be paid reasonable compensation by the Commonwealth. (3) In this section - (a) a reference to land shall be read as including a reference to sea-bed = and subsoil; (b) a reference to a prescribed provision shall be read as a reference to a provision that has effect only in relation to ~ (i) a particular park, reserve or conservation zone; or 24. (il) parks, reserves and conservation zones, or any of them; (c) a reference to an interest shall be read as including a reference to the exercise of a right arising out of an interest; and (d) a reference to minerals beneath land that is within a park, reserve or conservation zone shall be read as a reference to minerals situated below the depth specified 1n relation to that land in pursuance of sub-section 7(6) or 8A(4), whichever 1s applicable." An "interest" is defined (s.3(1)) to mean - "any legal or equitable interest, including any estate, right, title, claim, charge, encumbrance, power, privilege, authority, licence or permit;" Given the width of this definition, the various rights Or interests held by the applicants previously described are "interests" for this purpose and thus are not affected by, inter alia, the prescribed provisions of the National Parks Act. = Secondly, as Toohey J. pointed out in oara.307 cf his report, vesting of the supject lands, including ail m.erals, in the Commonwealtn is subject to s.70(6) of the Northern Territory (Self-Government) Act 1976 - "Upon the acquisition of an interest by the Commonwealth unuer 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." The scheme of the National Parks Act in relation to plans of management 1s as follows. By ss.ll, 12, 13 and 14 (as 25. amended by Act No. 94 of 1985 which came into operation on 2 September 1985) - (1) As soon as practicable after a park has been declared, the Director shall prepare a plan of management in respect of the park (s.11(1)). (2) Before a plan of management is prepared in respect of a park, the Director shail, by public notice, (a) state that a plan of management is to be prepared in respect of that park; (b) invite interested persons to make representations in connection with the proposed Plan by a specified date (s.11(2A)). (3) A person may make representations to the Director in connexion with the proposed plan of management and the Director shall give due consideration to any representations so made (s.11(3)). (4) The plan of management shall set out a description of the manner in which ut is proposed to manage the park and shall include - (a) a description of any existing or proposed bulldings, structures, facilities or other development; anc (Dd) a description cf any operations for che recovery of minerals, or excavation, works or other operations, that may be carried on, in the park (s.11(6)). (5) Where a plan of management provides' for operations for the recovery of minerals or for excavation or ther works, the plan shall set out any conditions that are to be applicable (s.11(7)). (6) In the preparation of the plan of management, regard shall be had to the following objects: (a) aun the case of a park - the encouragement and regulation of the appropriate use, appreciation and enjoyment of the park by the public; (7) (8) (9) 26. (b) un the case of a park or reserve wholly or partly within the Alligator Rivers Region - the interests of the traditional Aboriginal owners of, and of other Aboriginals interested in, so much of the land within the park or reserve as 1S within the Region; (c) the preservation of the park or reserve in its natural condition and the protection of its special features, including objects and sites of biological, historical, palaeontological, archaeological, geological and geographical interest; (d) the protection, conservation and Management of wildlife within the park or reserve; and (e) the protection of the park or reserve against damage (s.11(8)). The plan of management may provide for the division of the park into zones and set out the conditions: under which each zone shall be kept and maintained (s.11(9)). After the plan of management has-been Prepared, the Director shall, by public notice = (a) state that the plan has been prepared; (b) a.nvite interested persons to make representations in connexion with the Plan by a specified date; but, where the plan of management 1s in respect of a park within the Northern Territory, he shall serve a copy of the plan On the Territory Commission and, 1f the park 1S also within a prescribed area, on the Chairman of the relevant Aboriginal Land Council (s.11(10)). A person may, not later than the specified date make representations to the Director in connexion with the plan of management, and the Director shall give due consideration to any representations so made and, if he thinks fit, alter the plan accordingly (s.11(11)). (10) Tne Director shall thereupon submit to the (a) (11) (12) (13) (14) (15) 27. Minister - the plan of management; and {b) 1£ representations have been made under s.11(11) - those representations, together with the comments of the Director on those representations (s.11(12)). Subject to s.11(20) - (a) where the Minister 1s satisfied that there 1S a substantial difference of opinion between the relevant Chairman and the Director, the Minister shall refer the plan to the Director, together with his suggestions, for further consideration; or (b) in any other case, the Minister may - (1) accept the plan of management as submitted under s.11(12); or (11) refer 1t to the Director, together with his suggestions for further consideration (s.11(13)). (Consequential provisions, contained in the following sub-sections need not be mentioned here. Further, 1t should be noted that by Part IIA of the National Parks Act, insected by Act No. 34 of 1985, orovision iS alsc made for ta establishment of Boards whece an area oO Aboriginal land 1s situated within prescribed park.) @ ho The Minister shall not take any action under s.11(13) - except after giving due consideration to any representations or comments submitted to him under s.11(12) (s.11(20(a)). The Minister shall, as soon as practicable after a plan of management has been accepted under s.ll, cause 1t to be laid before both Houses of the Parliament (s.12(1)). Either House may, in pursuance of a motion upon notice, pass a resolution disallowing the plan of management (s.12(2)). While a plan of management is in force, the Director shall perform his' functions' and 28. exercise his powers in relation to the park or reserve to which the plan relates in accordance with that plan and not otherwise (s.14(1)). Reference should also be made to the relevant provisions of s.l10 of the National Parks Act - "1lO.(1) Subject to sub-section 8B(1) and section 8D, this section has effect notwithstanding any law of the Commonwealth or of a State or Territory. (2) No operations for the recovery of Minerals shall be carried on 1n a park or reserve other than operations that are carried on, with the approval of the Governor-General, in accordance with the plan of management relating to that park or reserve. (3) Subject to sub-sections (4) and (4A) - (a) no excavation shall be carried on; (b) no building or other structure shall be erected; (c) no works shall be carried out; and (d) no timber shall be felled or taken, sm a park or reserve except la accordance with che plan ot management relating to that park or reserve." The history of the several plans of management prepared for Kakadu National Park is as follows. (It throws considerable light on the gJovernment's general intentions for present purposes: 1t will be recalled that on 15 and 16 September 1986, the Executive considered together the plan of management prepared by the Director and the nomination of Kakadu Stage 2 for World Heritage listing.) On 5 April 1979, Stage 1 was proclaimed as a Park pursuant to s.7(2) of the National Parks Act. On 19 August 1980, a plan of management for Stage 1 was laid before the 29. Houses of Parliament. On 2 April 1981, that plan of management came into operation for the period until 31 December 1985. It provided for mining in these terms: "56. Mining Operations for the recovery of minerals may be carried on 1n the Park during the period of this Plan where these have been approved by the Governor-General as required under the National Parks and Wildlife Conservation Act 1975. Where the Governor-General gives his approval for such operations to be carried on the following conditions [inter alia] will apply: . operations for the recovery of minerals may be carried on only in accordance with best practicable technology; . suitably qualified and experienced officers are to be appointed to ensure effective environmental control inecluding the Protection of the natural and cultural resources of the Park;.... In the light of information that becomes available during the period of this Plan the Director may impose additional conditions in the interest of protecting Park values. The Aporiginal Land Rights (Northern Terriccorv) Act 1976 requires, incer alla, thac a mining interest in resvect of Aboriginal land shall not de granted unless: (a) both the Minister and the Land Council for the area in which the land 1s situated have consented, 1n writing, to the making of the grant; or (b) the Governor-General has, by Proclamation, declared that the national interest requires that the grant be made. Prospecting and exploration may require access to the Park for persons, equipment and supplies. Procedures may include, geological mapping, geochemical surveys, including shallow auger drilling, geophysical surveys, trenching, percussion and diamond drilling and the establishment of exploration camps with associated services in some areas of the Park. 30. Mining activities may include (a) either underground or open-cut operations or both, the access of persons, equipment and supplies and the construction of mining, ore treatment and associated facilities; (b) the provision of tallings dams and other facilities for storage of waste products and the storage of mine and process water; and (c) activities necessary or incidental to the production, handling, transportation, storage and treatment of ore. It may be necessary for some excavation to be carried out in the Park for obtaining materials required for road construction and maintenance, construction and maintenance of the improvements and facilities listed in Figures 46.1 and 54.1 and for other construction and/or maintenance for park operations approved by the Director. Where such excavations are carried out disturbance of the so1l and vegetation will be kept to the minimum feasible and appropriate rehabilitation measures will be taken including the use of species native to the region. In general the environmental standards applied will be comparable to those at Jabiru but additional conditions may be imposed in the interests of Park protection...." On 28 February 1984, Kakadu Stage 2 was proclaimed as a Park under ©.7(2) of tne Natzonal Parks Act. On 22 May 1984, tae Diszector invitad itterasted persons to mak. representations with respect to the plan of management proposed for Stage 2. on 13 July 1984, the applicants made written representations to the effect that the plan should deal with mining in a fashion similar to that adopted under the plan for Stage 1. On 20 December i985, the declaration of Stage 2 was revoked and the area was procla.med as an extension to Stage l. On 15 May 1986, the third applicant wrote to Senator Evans a letter, to be mentioned later, concerning the plan of 31. management proposed for the Park. Shortly before this, 1986, the first applicant had written to Senator Evans - "My attention has been drawn to your comments to the Senate Estimates Committee on 10th April, 1986 in which you are reported as having said in relation to Stage I and Stage II: ~,..I am not aware of mining type interests having come in issue there in anything like the same way that there has been controversy and anxiety over the stage 3 exercise. It just has not come to my attention to that extent." Together with E.2. Industries, Peko-Wallsend has had considerable interests in Stage II for a very long period of time, but we have been effectively frustrated from pursuing those interests for reasons that I believe are largely known to you. Most of our interests are in Stage II. We do not want them sacrificed in favour of Stage III because you believe that we have not expressed anxiety over them. The interests we have in Stage II are both more extensive and more valuable (on present knowledge) than all of Stage ITI. We have fourteen granted mining leases, about four hundred applications for grant of mining leases, about ben exploration retention lease applications, part of tne "Patterson Aceas', and an application for an exploration licence covering about one third of Stage II. There have been ore-grade uiuntersections at Ranger 4, Ranger 68 and Ranger 34; the last 1s a copper-silver prospect deserving of substantial exploration. There 1s considerable economic merit in the immediate proclamation of a mining Project Area to enclose these deposits, in the same way that Koongarra and Jabiluka have been made Project Areas. Io ask you to lend your support to the preservation of mineral rights in Stage II, in the national interest. It has the potential to prove to be too valuable an area to be sterilised indefinitely as the result' of inadequate consideration." on 5 May 32. As mentioned, on 15 May 1986, the third applicant wrote to Senator Evans ~- "The Plan of Management of this park 1s due for discussion, possible modification and acceptance in the next several months. No operations for the recovery of minerals shall be carried on in that park without the approval of the Governor General in accordance with the plan (except those subject to s.8B(1) and s.8D of the National Parks and Wildlife Conservation Act 1975). Leaving aside the latter, if mineral operations are to proceed, they are to appear in the plan. We enclose for your information the present Proposals as they appear in a discussion paper for the plan, dated 21 February 1986 (Enclosure 1). You will see that there is essentially no provision made for mining operations. This lack of provision 1S contrary to previous assurances made. These are conveniently summarised in Enclosure 2, a letter of 19 May 1980 to the Director of Parks and Wildlife, and tn Enclosure 3, a letter of 4 June 1981 from Senator J L Carrick, then Minister for National Development and Energy. You wlll ce aware of the suostantial nireral potential of tne Kakadu Region and you may have considered its possible impact upon Australia's trading balance. A decision needs to be made whether we are more concerned with butterflies than with mounting international debt. This decision should correctly involve your office, The point at issue, being the recognition that controlled mineral operations can harmoniously co-exist with conservation, goes beyond the Kakadu Region. The mineral industry 1s fickle to the threat of broken promises regarding its access to resources. It 1s likely to react to the proposed plan of management (in its discussion paper form) with further cutbacks in activity. It certainly would not be encouraged by it. We ask you to intercede in the present process of formulation of the Plan of Management for Kakadu, to ensure that the national interest is 33. served by 1ts contents." On 11 June 1986 the draft plan of management was released for public comment. On 9 July 1986, the third applicant made a number of representations to the Director. On il September 1986, a further draft plan was provided to the first respondent by the Director. Under the heading "Operations for the recovery of Minerals" the following appeared: "11.6.1 Background With respect to mining interests in a park, Section 8B of the National Parks and Wildlife Conservation Act 1975 provides that: [Part of s.8B is set out] Section 10(2) further provides - [Its provisions are set out] 11.6.2 Previous Management Since the Park was proclaimed, only limited Operations for the recovery of minerals have been carried out. In December 13383 Feko-#2 undertook work comprising sampling, measuring, drilling and mapdoing on certain 2x1isting mineral leases lying within Stage 2. 11.6.3 Management Prescriptions [The material contained in the draft plan under this sub-heading has been struck out.]" By letter to the Minister dated 16 September 1986, the Director submitted the plan of management "as modified following consideration of the representations received". Under the heading "Operations for the recovery of Minerals", the plan ' contained, as items 11.6.1 "Background" and 11.6.2 "Previous Management" the same material as appeared in the draft given to 34. the Minister. However, under the subheading 11.6.3 "Management Prescriptions" the following appeared: "Objectives: The main objective is to protect the Park's resources from exploitation. Where mineral leases exist in the Park, the primary objective will be to limit the impact of mining operations on the Park. Implementation: Subject to Section 8B of the Act, no operations for the recovery of minerals will be carr1red out in the Park. Where mining operations are carried out in the Park on existing mineral leases, measures will be taken to ensure that adverse environmental impacts do not affect the surrounding Park land. Appropriate access routes to mineral leases will be determined by the Director so as to minimise adverse impacts on the Park environment. In general the environmental standards applied willl be comparable to those specified for Jabiru but additional conditions may be imposed in the interests of Park protection." The third applicant had earlier submitted to the Director that a provision similar to the previous s.56 should be adooted. In his comments on the representations made, the Director sald: "Director's Comments: Whilst a mazority of submissions oppose mining in the Park, the broad spread of submissions on this issue clearly indicates there 1s a polarisation of views on Mining in the Park, Generally the provisions of the Plan allow for operations for the recovery of minerals on existing mineral interests, as is provided tor by Section 8B of the Act, but do not otherwise allow for operations for the recovery of Minerals in the Park. Four representations questioned the legal propriety of the prescriptions for operations for the recovery of minerals. The Attorney-General's Department has advised that the prescriptions were entirely proper. 35. The suggestion that mining areas should be excised from the Park 1s outside the scope of the Plan of Management and is a matter for Government determination. A number of submissions refer to the lack of provisions for granting title to new mineral leases. Geopeko require the Plan to indicate that applications for mineral leases are interests protected by Section 8B of the Act. This requirement 1s contrary to advice received from the Attorney-General's Department that applications for mineral leases are not such interests, A number of submissions propose assessment of mineral resources in the Park, particularly in wilderness areas before proclamation as such under the Act and the initiation of mining operations 1£ this is economically justified. Six representations specifically propose that all leases in the Park should be revoked. This 1s not possible under the Act and is outside the scope of the Plan of Management. No. 27 (the NT Government) is concerned that no provision had been made for conditions that would apply should mining be allowed to proceed. The main objective 1s to protect the Park's resources from exploitation. Where mineral leases, constituting existing interests under Section 8B of the Act, occur in the Park, che arimary oojective will be to limst the impact on the park of any exploration or mining operations carried out on those leases." Included in the material annexed to the Director's comments was a letter to him from Mr. P. Ryan, First Assistant Secretary, Coal and Minerals Division, Department of Resources and Energy, dated 18 July 1986: "Further to my memorandum of 8 July 1986 the following represent this Department's comments on the proposed Plan of Management for Kakadu National Park released on 7 June 1986 DRE 1S concerned that there should be adequate consultation with interested parties on issues addressed in the Plan particularly in areas where the new Plan departs markedly from 36. previous provisions. We would expect that you would now be in a position to give effect to your earlier undertakings for discussions with this Department on matters of prime importance to us. Given the views recently expressed by the NT Government, some of which parallel our own, we would expect Commonwealth/NT discussions also to be appropriate on these issues. DRE believes that the development of the second Plan provides the opportunity for the Commonwealth to demonstrate the merits of a balanced multiple land use policy in meeting what are often viewed as competing interests in areas of conservation significance, We believe the Plan as proposed fails to take advantage of this opportunity. The BMR has identified the Kakadu region as one of the most promising areas of mineralisation in the world. There 1s no recognition of this un the Plan nor any discussion or attempt to resolve the land management questions involved. We believe the approach adopted at pages 112 and 113 of the Plan dealing with operations for the recovery of minerals 1S Superficial in its discussion of this issue, and that by adopting a combatant position, 1t 1s unlikely to lead to any successful long term resolution of these undoubtedly difficult issues. Zn this context, we have ad: ffic rationalising the key management objective s Out at page 26 to develup an inventory of al renewable and non renewable resources in the Park (an objective with which we are in strong agreement) with an approach intended to prevent prospecting and exploration. We believe development of a resource inventory 1S an important objective in helping to resolve the land use conflicts mentioned above and that the Plan should spell out in detail how this objective 1s to be pursued. The approach spelt out on pages 112 and 113 represents a major reversal from the position adopted in the first Plan which has not been addressed by the Government or discussed at officials level. We believe the Plan of Management should not be a vehicle for policy formulation and that in the absence of any firm indication that the Government has considered this matter the Plan should it least keep open the options for mineral exploration and 37. development in the Park. In our view provisions similar to those in the first Plan would be adequate for this purpose and we would wish to see these reinstated..." It will be remembered that on 16 September 1986, the government approved section 11.6 of the draft plan of management proposed by the Director - "ie with no provision being made for exploration or recovery of minerals outside pre-existing leases." On 18 September, the plan of management was laid before the Houses of Parliament. I shall deal first with the applicants' submission that the Executive decision to submit Stage 2 as suitable for inclusion in the World Heritage List should be declared invalid as a decision made in denial of natural justice. It is the aodlicants' contention that the rv'es of natural justice or procedural fairness required that they bro given an adequate opportunity to be heard before a decision to nominate Xakadu Stage 2, yet they were afforded no such opportunity. The general principles in this area are no longer contentious: "There 1s no doubt that, in the absence of a clearly expressed legislative intention, no one can be dismissed from office, penalised, or deprived of or prejudiced in relation to his property without being afforded an adequate opportunity to 38. be heard" (per Gibbs C.J. in Bread Manufacturers of New South Wales v. Evans (1981) 38 A.L.R. 93 at p.l02). In Ridge v. Baldwin [1964] A.C. 40, Lord Reid spoke of "property rights and privileges" as a class of case which has traditionally attracted the protection of natural justice (at p.68). In F.A.I. Insurances Limited v. Winneke (1982) 151 C.L.R. 342, Mason J. observed that "[t]Jhe application of the rules is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest or a privilege...or which deprives a person of a "legitimate expectation''...in circumstances where 1t would not be fair to deprive him of that expectation without a hearing" (at p.360). And as Mason J. also pointed out in Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321 (at p.345), the expectation may be based upon some statement or undertaking or 1t "may arise from the very nature of the application, as 1t did in the case of the application for a renewal of a licence in FAI..." In Ki0a, supra, Brennan J. expressed the relevant test as follows (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 princip.es of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose lnterests 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 39. 1s 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." In Ridge v. Baldwin, supra, Lord Reid said that if a Minister is considering whether to make a scheme for, say, an important new road, his primary concern will not be with the damage which 1ts construction will do to the rights of individual owners of land (at p.72). Yet as H.W.R. Wade observed (Administrative Law, Sth ed. at pp.494-495), "the dominance of policy in no way affects the Minister's duty to hear a landowner's case. What it affects is the weight that he may give to that case after he has heard it." The Minister is bound to accord the landowner procedural fairness even where matters of policy are involved. (See also de Smith Constitutional and Administrative Law, Sth ed. at p.591 and Fricke Compulsory Acquisition of Land in Australia 2nd ed. at p.50.) There ar@ u.ny illustrations 1n tne decided cases of the application of the rules of natural justice wnere tne exercise of administrative power threatened to deprive or prejudice a citizen in relation to his property without being afforded an adequate opportunity to be heard (see , e.g., Delta Properties Proprietary Limited v. Brisbane City Council (1955) 95 C.L.R. ll at p.18; W.D. Duncan "Acguisition of the Fee Simple in Queensland and Natural Justice", 9 U.Q.L.J. 66 at p.73; Flick "Natural Justice", 2nd ed. at p.28; Hotop "Principles of Australian Administrative Law" 6th ed. at pp.178-9). A recent example is Perron v. Central 40. Land Counc1l (1985) 6 F.C.R. 226 where it was held (at p.231) that a request to a planning authority to re-zone land was a situation which justified the importation of the rules of natural justice - "fair play in action" (see Wiseman v. Borneman [1971] A.C. 297 at p.309). Perron may be contrasted with Idonz Pty. Ltd. v. National Capital Development Commission (1986) 67 A.L.R. 46 where the application was dismissed on the grounds that "[n]othing was proposed or intended which would have such a serious effect, actually or potentially, upon the appellant's land or the enjoyment thereof that in common sense and fairness it should first be consulted." (Per Fox J. at p.49). Can it be said that the applicants will be prejudiced in relation to their property or privileges by reason of the decision to submit Kakadu Stage 2 for inclusion on the World Heritage List? If 1t were proper to look at the inclusion of the site on the List in isolation, trac event, 12 12 were <2 happen av have no immediate effect under Australian municipal law. As a step taken under an international treaty, 1t cannot, of itself, deprive or prejudice a citizen of his liberty or his property (see Walker v. Baird [1892] A.C. 491; Bradley v. The Commonwealth of Australia (1973) 128 C.L.R. 557 ver Barwick C.J. and Gibbs J. at p.582; Simsek v. Macphee (1982 148 C.L.R. 636 per Stephen J. at p.641; Koowarta v. Bjelke-Petarsen (1982) 153 C.L.R. 168 per Gibbs C.J. at p. 193, pp.203-204; Lane's Commentary on the Australian Constitution (1986) at pp.318-9). 41. In Chow Hung Ching v. The King (1948) 77 C.L.R. 449, Dixon J. said (at p.478): "But a treaty, at all events one which does not terminate a state of war, has no legal effect upon the rights and duties of the subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty: Walker v. Baird (1892) A.C. 491, at p.497. On the other hand the recognition by the Crown of the sovereignty of a foreign State or government does produce under the common law immediate effects municipally. If the Crown receives a foreign sovereign the law immediately attaches to him an immunity and he 1s not amenable to the local jurisdiction." The submission of Kakadu Stage 2 for inclusion on the World Heritage List should not be looked at in isolation. It should be viewed in the wider context of the powers municipally available to the Executive under the Heritage Act in the case of "identified property" as defined in s.3(2) of that Act. The nomination of the site thus has a dual aspect: an international aspect in terms of the provisions of the Convention; and a municipal aspect as a condition precedent to the availability to wue government of the capacity to freeze the applicants' mining activities by acting under tne provisions of the Heritage Act (cf. the Franklin Dam case; The Minister for immigration and Ethnic Affairs v. Mayer (1985) 157 C.L.R. 290 per Mason, Deane and Dawson JJ. at pp.302-303). The history of the matter, especially the material dealing with the history of the plan of management, makes 1t plain that the government intends to restrict any mining operations in Kakadu Stage 2 to the absolute legal minimum. [It 1s 42. only reasonable to suppose that the government will seek to invoke any power conferred upon 1t under the municipal law, including the Heritage Act, with a view to eliminating, so far as possible, any mining activity 1n Stage 2. If further corroboration of the government's intentions to eliminate the exploitation of the mineral resources in the Park, so far as legally possible, were needed, it may be found in the likelihood that the government would feel itself obligated by the Convention to take all appropriate steps to procure the Listing of the site and thereafter to take appropriate steps, including the legal measures mentioned in Article 5(d) of the Convention, to secure its protection (see the Franklin Dam case per Mason J. at pp.697-8, p.706; per Brennan J. at pp.777, 779; per Deane J. at p.808). It is true that the obligations under the Convention are expressed, in Article 6, to be "without prejudice to property rights provided by national legislation". But, as Mason J. ooserved in the Pranklin Dam case (at p.698), this orovision, no doubt oecause 1t Aas no municipal operation, "provides some safeguard for such existing and future rights in property forming part of the world heritage as a nation state may choose to protect, acknowledge or create." (Emphasis added). There 1s no obligation on the Commonwealth enforceable under domestic law to provide protection for property rights. Moreover, in the Franklin Dam case where State land was involved (cf. Teor1 Tau v. The Commonwealth (1969) 119 C.L.R. 564 in the case of a Territory) it was held that the exercise of the 43. relevant powers under the Heritage Act did not involve any taking on unjust terms contrary to s.51 (xxxi) of the Constitution. In the present case, there 1s no suggestion that the government proposes to offer any compensation for any loss that the applicants might suffer in the event that the statutory powers available under the Heritage Act were to be invoked. If, as seems inevitable 1f listing were to be granted, the restraints provided by the Heritage Act were to be activated, tne applicants would have no claim for compensation under the Constitution or elsewhere. Nor would the provisions of s.8B of the National Parks Act 'assist the applicants. Its operation is confined to the operative provisions of that Act and cannot derogate from the potential capacity of the government acting under the Heritage Act to "freeze" the applicants' rights or interests (see per Deane J. in the Franklin Dam case at p.800; pp.811-2; p.828). Kakadu Stag@a 2 1as 10t, of course, vet been listed. tt may never be. In this sense the present case, as in the case of the proceedings in Laker Airways Ltd. v. Department of Trade {1977] 1 Q.B. 643 (at p.679), 18 an action quia timet: the applicants fear that if and when listing is granted, the government will seek to invoke the statutory powers ava1lable to 1t under the Heritage Act; the applicants thus seek to anticipate the likely exercise of these powers by challenging the anterior step in the form of the decision by the Executive to submit the site for listing. 44, In my opinion, it is open to the applicants to seek to challenge the decision to nominate on this basis. It appears that if the nomination is proceeded with, listing 1s at least a real possibility and, as has been said, if listing 1s granted, 1t 1s probable that the government will invoke its powers under the Heritage Act to prohibit the applicants' mining activities. The applicants clearly have a real and substantial interest in attacking the decision to nominate Kakadu Stage 2 and thus they have standing to maintain these proceedings. In technical terms, the inclusion of the site on the List amounts to the satisfaction of a condition precedent to the availability of the powers to "freeze" the applicants' rights or interests given to the Executive under the Heritage Act: it will be recalled that only "identified property" can be made the subject of these powers. It was suggested 1n argument by the respondents that the "submission" contemplated by s.3(2)(a)(i) of the Heritage Act was made once and for all on 17 September 1986 so that the powers under that Act are oresently available co che fxecutive and, as a result, it 1s now too late for the Court to intervene. But, assuming for the moment a denial of natural justice under municipal law, 1t would be within the power of the Court, by way of mandatory injunction 1£ necessary, to order the withdrawal of the submission, in whole or in part. Once the State's consent were withdrawn, the Committee would be bound by Article 11.3 not to include the site, or at least the whole of the site, on the List (see the Franklin Dam case per Mason J. at p.699). Moreover, it 1S reasonable to assume that the "submission" 45. envisaged by s.3(2)(a)(i) of the Heritage Act 1S a lawful and valid submission as distinct from a purported nomination declared invalid for lack of procedural fairness. In this connection, the respondents sought to rely upon the decision in Barton v. The Commonwealth (1974) 131 C.L.R. 477. However that case cannot assist the respondents here since the only issue there litigated was the existence of a relevant power in the Commonwealth to do the act complained of - there was no suggestion of lack of natural justice or procedural impropriety. It was argued on behalf of the respondents that, because the decision now in question involved the royal prerogative to make and implement treaties, it was not suspectible of judicial review. The first question 1s to determine the source or sources of the power to nominate. In Barton v. The Commonwealth, supra, 1t was held that it was within the power of the Commonwealth to request a foreign stats to detain 42 verson alleged ts have committed an offence against the law of Australia pending the making Of a request for his extradition to Australia. Barwick C.J. described the relevant power in terms of a prerogative power (at pp.487-3). McTiernan and Menzies JJ. upheld the request as "a function of executive power" (at p.491). Mason J. referred not only to the prerogative but also to the executive power granted by s.61 of the Constitution. That power, his Honour said, "includes the prerogative powers of the Crown, that is the powers accorded to the Crown by the common law." (At p.498). 46. Mason J. later spoke of the relevant function as "the prerogative or executive power." (At p.501). Jacobs J. treated the request, in the absence of a statute, as "a purely executive act...[which] may therefore be called an exercise of the prerogative." (At p.505). In Koowarta, supra, Gibbs C.J. spoke of the executive power in the Governor-General, exercising the prerogative power of the Crown, to make treaties on subjects which are not within the legislative power of the Commonwealth (at p.193). Stephen Jey referring to Zines, Commentaries onthe Australian Constitution (1977), ch.1, said that the executive treaty-making power was for some years after Federation regarded as possessed by the Imperial Crown but has subsequently been treated as exercisable by the Governor-General pursuant to s.61 of the Constitution (at p.212). Murphy J. observed that the executive power over Australia's external affairs was part of the executive power of the Commonwealth nominally vested in the Queen exercisable by tne Governor-General under 3.61 on the advice of the Federal Executive Council under s.62 (at p.237). Aickin J. concurred with the Chief Justice, In the Franklin Dam case, Dawson J. suggested that the treaty-making power was not covered by s.61 (at p.839). However, as Professor Sawer The External Affairs Power (1983-4) 14 FL Rev. 199-201 and Professor Zines High Court and the Constitution 2nd ed., (1986) at p.225, pp.235-7, point out, this view is inconsistent with the weight of authority (see also Winterton, 47. Parliament, the Executive and the Governor-General (1983) ch.3). The decision presently under challenge is not an exercise of the treaty-making power itself. Rather it is an executive act taken in performance of an international obligation imposed by a treaty already made, i.e., the Convention, but, as has been noted, with domestic repercussions, in terms of the operation of the Heritage Act. The source of the power to nominate may thus be seen to be multiple: first, the common law prerogative; secondly, the executive powers conferred by s.61 of the Constitution; thirdly, the provisions of the Heritage Act so far as, in defining the property ("identified property") on which that legislation 1s to be capable of operation, they pick up the process of submission under Article 11 of the Convention. But even if the decision to nominate had its sole source in the prerogative, 1t would not follow that the decision would thereby be immune from judicial review. In The Queen v. Toohev; EX parte Northern Land Council (1981) 151 C.L.R. 170, 1t was held that in the absence of contrary legislative intention, the courts will review judicially the exercise of a statutory power even where the repository of that power 1S a representative of the Crown. The earlier approach, evidenced by the observations of Dixon J. in the Communist Party Case (1951) 83 C.L.R. 1 at pp.178-9, was declared to be now unacceptable, Gibbs C.J. said that no convincing reason could be suggested for limiting the ordinary power of the 48. courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review (at p.193). Stephen J. thought that no distinction of principle should be drawn between the acts of the representative of the Crown and those of the Minister since in the exercise of statutory powers, the former acts upon the advice of the latter (at p.215). Mason J., noting that the continued application of the Crown immunity rule to the exercise of prerogative power 1s a legal fiction (at p.220), observed that: "Despite the tenor of some of the remarks in Gouriet, there is much to be said for the view expressed by Lord Denning M.R. in Laker...that the exercise of a discretionary prerogative power ~can be examined by the courts just as any other discretionary power which 1s vested in the executive.' The question would then remain whether the exercise of a particular prerogative power is susceptible of review and on what grounds. See "The Prerogative and Preventive Justice' by D.G.T. Williams (1977) Cambridge Law Journal 201 at p.204)." (Professor Williams there acknowledges problems of justiciability of some prerogative powers, e.g., relator actions, but suggests that the decision in Gouriet not be vegardad as sweeplig authority for giving similar immunity to all powers' and functions.") Murphy Jd. criticised the notion of Crown 1mmunity (at p.230). Arckin J., noting that a statutory power vested in a Minister could be reviewed judicially. observed that it seemed anomalous and irrational to say that 1t 1s impossible to examine a decision made by more than one Minister to advise the Governor-General to do an act which in constitutional reality he 1s obliged to do once advised so to do (at pp.264-5). Wilson J. said that the fact that a particular power is reposed in the 49. representative of the Crown acting on the advice of his Ministers would seldom warrant the operation of different principles of judicial review to those which would apply 1f the power were reposed in a Minister of the Crown acting as one (at p.283). His Honour continues: "In the case of prerogative powers, the subject matter of the power will be of primary importance in determining whether the manner of exercise of the power 1s justiciable"". Reference was made to cases involving the traditional law - enforcement function as the law officer of the Crown (Gouriet and Barton v. The Queen (1980) 147 C.L.R. 75). In F.A.I. Insurances Limited v. Winneke (1982) 151 C.L.R. 342, it was held by Gibbs C.J., Stephen, Mason, Aickin, Wilson and Brennan JJ., Murphy J. dissenting, that in deciding whether to renew an approval of the appellant as an insurer under the Workers Compensation Act 1958 (Vict.), the Governor in Council was subject to the requirements of natural justice and should have given the appellant an opportunity to be heard. Gibbs C.J. thought that it would oe to confuse form wrth substance to nold that the rules of natural justice are excluded simply because the power is technically confided in the Governor un Council, who 1s not above the law (at p.349). Stephen J. (at p.355), Mason J. (at pp.365-*), Aickin J. (at p.381), Wilson J. (at p.402) and Brennan J. (at p.417), were of a similar view. In A v. Hayden (1984) 156 C.L.R. 532, a case involving national security, Brennan J. made a passing reference to the difficulties which would confront a court whose jurisdiction is 50. invoked to review the exercise of the royal prerogative in the context of national security (at p.590). In Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, another case involving national security, it was held by the House of Lords that executive action under the prerogative was not immune from judicial review and a Minister acting under a prerogative power might, depending upon the subject matter, be under the same duty to act fairly as in the case of action under a statutory power. Lord Fraser referred to the difficulties involved in attempting judicial review of some aspects of the prerogative, for instance, control of the armed forces and foreign policy, as matters unsuitable for discussion or review in the law courts (at p.398). Yet his Lordship said that the circumstance that the source of executive power was a common law prerogative rather than a statute did not mean that it was beyond the scope of judicial review (at pp.399-400). Lord Scarman thought that the controlling factor in cetermining wnetner the exercise of the prerogative is subrtect 1) judicial review is not its source but its subject matter (at p.407). Lord Diplock said that, as repects procedural propriety, there was no reason why 1t should not be made a ground of judicial review of a decision made under powers of which the ultimate source is the prerogative (at p.411). Lord Roskill was of a similar view, saying that jurisdiction to review judicially depended upon the subject matter of the prerogative power. Powers such as those relating to the making of treaties and the defence of the realm were not susceptible of judicial review 51. because the1r nature and subject matter are not amenable to the judicial process. The courts are not the place to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved at one date rather than another (at p.418). The decision of the House of Lords was discussed, with tacit approval, by Wilson J. in Coutts v. The Commonwealth of Australia (1985) 157 C.L.R. 91 at pp.99-100). In the circumstances, I propose to follow the decision of the House of Lords (see, on the question of precedent, Cook v. Cook, High Court of Australia, unreported, 2 December 1986, per Mason, Wilson, Deane and Dawson JJ. at p.14; and, on the G.C.H.Q. decision itself see de Smith, op cit., at pp.141-2; Forsyth, case note, (1985) 44 C.L.J. 1; Wesley-Smith, "Judicial Review of Prerogative Action" (1985) 11 New Zealand Universities Law Review 323; Forsyth "Judicial Review, The Royal Prerogative and National Security" (1935) 26 Nortnern Ireland Legal Quarterly 25; H.W.R. Wade, case notes (1985) 101 L.Q.R. 153, 190). Assuming for the purposes of the argument that the decision t2 nominate Kakadu Stage 2 for listing was derived solely from the prerogative, 1t would not follow that such an exercise of executive power could not be the subject of judicial review on the grounds of procedural impropriety, at least where private proprerty rights or privileges of the kind held by the applicants are involved. The position may well be different 52. where the ground of challenge 1s, for example, perversity, 1.¢., the Wednesbury ground, or in cases of the kind instanced by Lord Roskill where no question arises of any prejudice to private property or financial interests. In the present case, no question arises of any challenge to the exercise of the prerogative on generalised or "political" grounds (cf. Av. Hayden, supra, per Brennan J. at p.590 citing Chicago and Southern Air Lines, Inc. v. Waterman Steamship Corporation (1948) 33 U.S. 103, at p.lll; Gerhardy v. Brown (1985) 57 A.L.R. 472 per Brennan J. at pp.523-524; Nottinghamshire County Council vy. Secretary of State for the Environment [1986] 1 A.C. 240 per Lord Scarman at pp.247-50; and cf. the "Political Question Doctrine" un the United States now said to be "in a state of some confusion" (see Tribe, American Constitutional Law (1978) at pp.71-9; and see Tribe, Constitutional Choices (1985) at pp.27 and 289). On the contrary, the case of procedural impropriety now put by the applicants 1s one that can be measured and tested by established and defined legal criteria. To this extent, there re no reasons Of policy which would iead a court to decline judicial review. Moreover, as has been noted, in the present case, the scurce of the administrative power under attack is multiple. It is not simply a c3se of the prerogative. The existence of the other sources of power reinforce the conclusion that the decision to nominate is open to judicial review if procedural impropriety can be established. 53. It follows, in my opinion, that the rules of natural justice, 1.e., a requirement of procedural fairness, applied in the present case. What did fairness require in all the circumstances? On behalf of the respondents it is said that the applicants were, in fact, given an adequate opportunity to be heard. The respondents say, correctly, that the applicants had known for years that it was likely that Kakadu Stage 2 would be nominated and that 1t was always open to the applicants to make appropriate submissions to the government in the hope of persuading 1t to accommodate the applicants' interests 1n some suitable fashion. Indeed, the respondents say the applicants actually availed themselves of this opportunity and put their case vigorously both to Senator Evans and to Professor Ovington. So much may be accepted. But it fails to recognise the actual decision-making trocess in the present case. The relevant it decision was nade ov the C2pinet ictsel on 16 Septameer. Although the applicants could not reasonably insist upon any opportunity to address the Cabinet body, they were given no opportunity to put appropriate material before that meeting of the Executive which might then persuade it of the wisdom of other possible approaches to the matter. For unstance, the applicants would, no doubt, have wished to have been given the opportunity to seek to persuade the Executive, by written submission, that if nomination were to proceed, some or all cf the applicants' mining interests should be excised from the proposal. Another 54. possibility would be that the applicants would seek from the government compensation for the financial loss they will probably suffer if listing were to be granted. No doubt, the applicants would wish to support their submissions to Cabinet by reference to specific evidence of expenditure incurred by them in Kakadu Stage 2 and now liable to be thrown away. Moreover, the applicants might well wish to put before Cabinet a current valuation of their mining interests or rights. This 1s not, of course, intended as an exhaustive catalogue of the specific material upon which the applicants might seek to rely with a view to converting the Executive to another opinion in the matter. Fairness required, in my opinion, that the applicants be given, first, reasonable notice of the proposal that, on 15 or 16 September, the Cabinet nominate Kakadu Stage 2 and, secondly, an opportunity to present a submission to the Cabinet as a body in support of their case. This was not done. Instead, on 16 September, the applicants were oresented with a fait accompli. TE 1S no answer te tne adolicancs' complaint te say thar thev always had the chance to persuade Mr. Cohen and Senator Evans. They were not the decision-maker. It was Cabinet that directed the immediate nomination of the site. It was to Cabinet, meeting as a body on 15 and 16 September, that the applicants had to direct their contentions. The distinction between an opportunity to put a case to Senator Evans or Mr. Cohen at an earlier point of time, on the one hand, and the opportunity to put a submission to the Cabinet as an assembled body on 15 and 16 September on the other, 18 a matter of substance, not form. It is not only a 55. question of machinery of the kind addressed in F.A.I. Insurances Limited v. Winneke, supra (see, e.g., per Mason J. at p.371). It is true that it may well be difficult to persuade the government to alter its view. Yet this 1s no reason for denying judicial review (see Santa Sabina College v. Minister for Education (1985) 58 A.L.R. 527 at p.540). Finally, it should be noted that 1t was argued on behalf of the respondents that, because of the provisions of s.70(6) of the Self-Government Act 1978, the applicants' mining interests or rights are not capable of exercise in any legal or practical sense. It will be remembered that, by s.70(6), 1 1s provided that, upon the acquisition by the Commonwealth, all interests that were held by the Territory are held from the Commonwealth "on the same terms and conditions as those on which they were held from the Territory." As has been noted, in 1982, the Mining Act 1980 repealed the 1939 Ordinance. However, by virtue of the savings and transiticnal provisisns of 3.131 of tne 1380 Ast ane otherwise (e.g. $.38(1)(b)), interests or rights under the earlier legislation were saved or otherwise picked up. The respondents' argument fastens upon the past tense - "were held" - where used in s.70(6) of the Self-Government Act. They contend that, taken literally, this phrase has the effect of freezing the applicants' interests and rights to their status under the 1939 Ordinance. In particular they argue, the 1980 Act cannot be invoked so as to operate upon the applicants' interests or riohts. we 56. The argument should not be accepted. In the first place, even if taken literally, the words "held by" are capable of an ambulatory operation which would embrace interests saved or otherwise picked up by the 1980 Act. Alternatively, the literal construction contended for by the applicants should be rejected as capricious and arbitrary (see Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 C.L.R. 297 per Mason and Wilson JJ. at pp.319-321). In these circumstances, the decision to submit Kakadu Stage 2 for listing should be declared invalid as a decision made in denial of natural justice. It 18 unnecessary to consider the other grounds for judicial review advanced by the applicants. I provese to grant the applicants appropriate relief. In tne case 2F tne Executive, a declaration of invalidity, cacner than an injunction, 1s the proper remedy (see F.A.I. Insurances Limited v. Winneke, supra, per Mason J. at p.372). I make the following orders: 1. Declare that the decision of the Executive made on 16 September 1986 to nominate Stage 2 of Kakadu National Park for inclusion on the World Heritage List 1s void. 57. 2. Order that the respondents pay the applicants' costs. Counsel and Solicitors for Applicants: Counsel and Solicitors for Respondents: Counsel and Solicitors for Northern Territory Sovernment: Dates of hearing: Date Judgment Delivered: I certify that this and the preceding +, S/X (S6) pages are a tYue copy of the Reasons for ae octe herein of his Honour Mr. Justice Beaumo nt. Pysele, /4- VA so, Hii fe Dated: R.A. Contr Q.C. with A.J. Sullivan instructed by Clayton Utz. D.M.J. Bennett 0.C. with c. Cc. Simpson, T. Reilly instructed by Australian Government Solicitor B. Martin Q.C. Soliczitor- General witn G. Nicholson Lastructea Dv Department of Law 8, 9, 10, 11, 12 December 1986 22 December 1986