FEDERAL COURT OF AUSTRALIA Mitakoodi/Juhnjlar People v State of Queensland [2000] FCA 156 NATIVE TITLE – stay of proceedings – right to negotiate – future acts – intermediate period acts Judicial Review Act 1991 (Qld) Native Title Act 1993 (Cth) Mineral Resources Act (1989) (Qld) s 279(1) s 286(3) Native Title Amendment Act 1998 Federal Court of Australia Act 1976 s 23 Native Title (Queensland) Act 1993 Native Title (Queensland) State Provisions Act 1998 The Wik Peoples v The State of Queensland (1996) 187 CLR 1 Cons North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 (the Wannyi case) Appr The Wik Peoples v The State of Queensland (1994) 49 FCR 1 Appl The Native Title Act case (1995) 183 CLR 373 Cons THE MITAKOODI/JUHNJLAR PEOPLES v STATE OF QUEENSLAND, TOM GILMORE, MINISTER FOR MINES AND ENERGY, TONY McGRADY, FORMERLY MINISTER FOR MINERALS AND ENERGY & ERNEST HENRY MINING PTY LTD SPENDER J 18 FEBRUARY 2000 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 190 OF 1997 BETWEEN: THE MITAKOODI/JUHNJLAR PEOPLE Applicant AND: STATE OF QUEENSLAND First Respondent TOM GILMORE, MINISTER FOR MINES AND ENERGY Second Respondent TONY McGRADY, FORMERLY MINISTER FOR MINERALS AND ENERGY Third Respondent ERNEST HENRY MINING PTY LTD [ACN 008 495 574] Fourth Respondent JUDGE: SPENDER J DATE OF ORDER: 18 FEBRUARY 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The proceedings be stayed, until further order 2. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 190 OF 1997 BETWEEN: THE MITAKOODI/JUHNJLAR PEOPLE Applicant AND: STATE OF QUEENSLAND First Respondent TOM GILMORE, MINISTER FOR MINES AND ENERGY Second Respondent TONY McGRADY, FORMERLY MINISTER FOR MINERALS AND ENERGY Third Respondent ERNEST HENRY MINING PTY LTD [ACN 008 495 574] Fourth Respondent JUDGE: SPENDER J DATE: 18 FEBRUARY 2000 PLACE: BRISBANE REASONS FOR JUDGMENT 1 In the principal proceedings, the applicants seek: declarations that each of the grants and renewals of mining leases referred to in paras 12 and 13 of the Statement of Claim are invalid; orders against the first, second and third respondents under the Judicial Review Act 1991 (Qld), quashing or setting aside the decisions of the Governor in Council in the State of Queensland to grant each of the mining leases referred to in para 12 and renew each of the mining leases referred to in para 13 of the Statement of Claim; an order that the fourth respondent vacate the land referred to in the Statement of Claim; an injunction restraining the fourth respondent from occupying the land referred to and from using the land for the purpose of mining, exploration for minerals and/or activities ancillary to mining until it is lawfully authorised to do so; and against the fourth respondent, damages for trespass and interest pursuant to statute. 2 Ernest Henry Mining Pty Ltd and the State of Queensland each seek that these proceedings be stayed until further order. 3 On 22nd October 1996, Pearl Joyce Connolly, on behalf of the applicants, was registered as a Native Title claimant over an area of land (other than freehold land and land reserved for public use) in the north-western part of Queensland. At issue in the principal proceedings is the question of whether seven mining leases and subsequent renewals, granted during the period 2nd November 1995 to 31st July 1997 over land contained within pastoral leases within the claim area, are invalid. 4 In the original application, the contention was that the State of Queensland failed to give notice to Pearl Connolly and to the public at large of the intention of the Governor in Council to make grants and renewals of mining leases in accordance with s 29(1) of the Native Title Act 1993 (Cth) (the "NTA"). The contention on behalf of the applicants is that they were denied the opportunity to make submissions to, and negotiate with, the State of Queensland and Ernest Henry Mining Pty Ltd in relation to the grants and renewals. They claim that the Governor in Council was in breach of s 279(1) of the Mineral Resources Act 1989 (Qld) in making grants or allowing renewals without determining compensation between the fourth respondent and the applicants. 5 The affidavit material in support of the respondents' motions contends that the claimant's description of the boundary of the claim area is not exact, and that the applicants are not representative of all the Aboriginal groups who may have an interest in the mine or in the land. It is said that there are a number of additional claimants representing Aboriginal groups in relation to parts of the subject land, namely the Kalkadoon people and the Yullana/Kalkadoon people. The applicants respond by saying that while there are some other claims which overlap the claim brought by Pearl Connolly (QC96/101), that claim is the only claim for determination of native title which includes the area of the mining leases of Ernest Henry Mining Pty Ltd. 6 The NTA was significantly amended by the Native Title Amendment Act 1998, the relevant provisions of which are commenced on 30th September 1998. Prior to the coming into operation of those amendments, it was submitted on behalf of the applicants that the main issue was whether or not the right to negotiate provisions then contained in subdivision B of the NTA (especially ss 26(1) and s 29 of the NTA) should have been applied prior to the granting and renewal of the mining leases. It was submitted that, if the right to negotiate provisions were applicable, the mining leases were invalid pursuant to s 28 of the NTA, because the first and fourth respondents had not complied with the right to negotiate provisions before granting or obtaining valid mining leases. 7 The reasons provided by the second and third respondents (the then relevant Ministers) for their various decisions include two reasons why they did not consider that the "right to negotiate" provisions applied. With respect to grants made and renewals allowed in 1995 and 1996, it was believed that "native title did not exist on the relevant land because it had been extinguished by the earlier grant of a pastoral lease." It may be accepted that this was a widely held view, prior to the decision of the High Court in The Wik Peoples v The State of Queensland (1996) 187 CLR 1. Secondly, they argued that the renewals on 31st July 1997 were "future acts" within the scope of s 25 of the NTA, as a result of which the right to negotiate provisions did not apply. 8 The applicants challenged both of those assumptions, submitting that the High Court judgment in Wik provided that native title is not necessarily extinguished by pastoral leases, and a relevant decision maker was required to embark upon further enquiry. Further, it was then submitted that there was no legally enforceable right to a renewal of the mining leases, which was a requirement of s 25 of the NTA - section 286(3) of the Mineral Resources Act 1989 (Qld) conferred a discretion on the Governor in Council concerning renewals of mineral leases. 9 In their submissions prior to the amendments, the applicants submitted that they were not seeking a determination of native title in the filed proceedings at that stage of the proceedings and, for that reason, they consented to an order that the part of the proceedings which contemplated the making of such a determination be stayed. That part of the proceedings, of course, included the trespass and other actions raised in para 2(e) of the amended application. The applicants, however, seek to resist a stay of the balance of their application. The contention on behalf of the applicants was that they should be permitted to enforce and pursue the valuable "right to negotiate" with the first and fourth respondents and not have that part of the action stayed. 10 For the State of Queensland and the second and third respondents, it was said that the prosecution by the applicants of these Federal Court proceedings, in making the same claim of native title as had been made in the Native Title Tribunal, was vexatious and ought to be stayed. It was pointed out in submissions that when the applicants lodged their native title application on 22nd October 1996, all seven of the mining leases which the applicants now allege were invalidly granted had been granted. All of the fourth respondent's applications for grant had been made and two of the renewals, which the applicants then alleged were invalid, had occurred. Instead of bringing proceedings in the Federal Court, it was submitted the applicants had elected to proceed to apply for a determination of native title pursuant to the NTA, and over a year later commenced this present application in the Federal Court, in which they again claimed native title. 11 It is relevant to note that it was said by Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ in North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 (the Waanyi case) at 617, although in a different context: "If it be practicable to resolve an application for determination of native title by negotiation and agreement rather than by the judicial determination of complex issues, the Court and the likely parties to the litigation are saved a great deal in time and resources. Perhaps more importantly, if the persons interested in the determination of those issues negotiate and reach an agreement, they are enabled thereby to establish an amicable relationship between future neighbouring occupiers. To submit a claim for determination of native title to judicial determination before the stage of negotiation is reached is to invert the statutory order of disposing of such claims." 12 It was and is a relevant consideration that the determination of native title may take a considerable time. As opposed to that, all interested parties have an entitlement to be heard on the question of the existence of native title and there is a clear desirability in having that issue determined through a process of broad participation, particularly in the context of the considerable community interest in the mine development. Moreover, a determination of native title would operate in rem, whereas a determination in these proceedings would operate in personam only: The Wik Peoples v The State of Queensland (1994) 49 FCR 1. It was submitted for the respondents that, whilst it might introduce delay in the ultimate resolution of the claim for native title (if it is not earlier disposed of pursuant to negotiation), the fact is that the construction and development work at the mine commenced in November 1995, and the mine has been operating since August 1997 and was officially opened on 27th October 1997. The respondents submitted that, notwithstanding reference to concerns about religious, spiritual, ceremonial and historical rights, the material indicated that the applicants would accept moneys worth for the loss of those claimed rights, so that the principal proceedings were really about money. There had been, it was submitted, a long delay before the assertion of the claimed rights in the first place, and then further delay between that first assertion and the commencement of the Federal Court proceedings. 13 There was evidence, it was submitted by the fourth respondent, to suggest that the applicants knew of the intention to develop the Ernest Henry mine from the early 1990's and certainly at least from March 1995. It was not until May 1996 that the applicants first asserted "traditional ownership" in the land and they did not assert rights to native title, compensation or injunctions until 22nd August 1996. While the native title claim was lodged in October 1996, the present proceedings were not commenced until December 1997. It was submitted that the applicants' claim for native title was so central to the claims which were made by them in these proceedings, that there was no issue of fact or law which could conveniently be progressed in this Court whilst the Native Title Tribunal was carrying out its function concerning the determination of native title. As a consequence, it was said, there was no merit in a partial stay of proceedings. 14 Under s 23 of the Federal Court of Australia Act 1976, this Court has ample power to order a stay of proceedings, either temporarily or permanently, where it is appropriate to do justice between the parties. It was therefore submitted that it was appropriate to stay the Federal Court proceedings pending the determination of the applicant's entitlement to native title, because that would avoid unnecessary duplication and because the Federal Court proceedings were unable to determine in a way that would bind parties other than the present parties. On the issue of whether the applicants held native title in the land concerned, there was the possibility of inconsistent determinations with respect to native title and also considerable additional costs and delays. It was submitted on behalf of the first, second and third respondents that the proposal by the applicants to stay only part of their claim (namely the claim to damages for alleged trespass) would unduly fragment the action and would not be appropriate, because both the trespass claim and the relief then sought (regarding at least the pre-1997 grants and renewals) depended upon the applicants establishing that they hold native title. It was submitted that it would be undesirable to fragment those parts of the applicants' claim from the balance of their claim. The contention that the establishment of native title is central to the balance of the applicants' claim is disputed by the applicants, who assert that their entitlement to the balance of the relief they seek is dependent only on their status as claimants in respect of native title. 15 The Court has now had the benefit of extensive further submissions by the parties regarding the effect of the Native Title Amendment Act 1998 on the stay applications. 16 It is accepted by the applicants that many acts done between 1 January 1994 and 23 December 1996, including acts that may have been invalid because of the "future act" provisions, fall within the definition of "intermediate period act" (s 232A) and are validated by s 22F of the NTA as amended by the Native Title Amendment Act 1998 (the new Act), and s 8A of the Native Title (Queensland) Act 1993 as amended by the Native Title (Queensland) State Provisions Act 1998. Section 22H of the new Act requires Queensland to give certain notice in relation to doing of an act. 17 Some future acts which were done between 24 December 1996 and 29 September 1998 are also affected, to an extent, by the new Act. The applicants maintained their position that the part of the proceedings regarding whether they had certain rights which they were not accorded prior to the granting and renewal of the mining leases and, if so, what consequences flow from them not being accorded those rights, should not be stayed. They submitted that even if the new Act had the retrospective and valid effect of validating some or all of the grants and renewals (a matter which the applicants did not concede) those considerations would only alter the nature of the relief to which the applicants were entitled. It might be, it was said, that the provisions regarding just terms compensation in s 53 of the new Act could apply. The applicants point to the fact that all proceedings are now within the jurisdiction of the Federal Court and contend that the validity of the grants and renewals could conveniently be determined prior to the resolution of whether they had native title, or whether the grants and renewals in fact affected that native title. 18 The respondents say that the contention of the applicants that the mining leases were rendered invalid by s 28 is untenable, because the High Court had found in express terms in The Native Title Act case (1995) 183 CLR 373 at 471 that the right to negotiate provisions "merely prescribe the scope of exceptions to the general protection of native title by s 11" and create "a gateway to validity through which other permissible future Acts must pass if they are to protect the rights and interests of the holders of native title". It was submitted that under the NTA the "right to negotiate subdivision" only applied in cases in which native title both exists and would be affected by the grant or renewal. Reference was made to ss 11(1), 26(1), 235(5) and 233(1). It was pointed out further that the amended statement of claim specifically pleaded that the grants and renewals were inconsistent with and affected by the applicants' native title. Reference was made to paragraph 16A of the applicants' Statement of Claim. It was thus contended that the part of the applicants' case on which they wished to proceed was not predicated solely or simply on a claim to native title. 19 It seems to me that if there is a real argument that not only the status of claimants, but also the existence of native title, are ingredients of the balance of the applicants' case (as the respondents contend), then that is a powerful consideration in favour of a stay of the whole of the proceedings. 20 The amendments to the NTA in September 1998 have a clear relevance to the stay applications. Determinations relating to native title are now made by the Federal Court (Part 4), and existing claims in the National Native Title Tribunal are to be treated as if they were made to the Federal Court. The applicants' claims have to be reconsidered by the Native Title Registrar as soon as reasonably practicable. With respect to the new registration test, and if the claims comply with the new procedures, mediation of them under the auspices of the Tribunal will resume or commence: s 86B of the new Act. 21 Notwithstanding the extent of the amendments, it was submitted by the respondents that they do not affect the merits of their stay application. It was submitted that the position remained that the intention of the legislature was that the existence or otherwise of native title rights be resolved by a process of mediation in a Tribunal, if at all possible, and that this process ought to be permitted to run its course unaffected by these proceedings. That circumstance was fortified, so it was said, by the observations of the High Court in Waanyi to the effect that it was undesirable as a matter of policy for matters involving determination of native title to be resolved by judicial determination prior to completion of the negotiation procedures provided for by the legislation. Again, it was emphasised that a determination made in native title application proceedings results in a judgment in rem binding not only on the parties, but on the world at large. The claims in this Court, in the present proceedings, would result in conclusions binding only the parties to this litigation. It was therefore submitted that it was only right that the issue be resolved in a way which produces a conclusive outcome, rather than the potential for inconsistent outcomes depending on the evidence and the parties to those proceedings. 22 Division 2A of Part 2 provides for the validation by States and Territories of certain acts (called "intermediate period acts"). I accept the correctness of the submissions made on behalf of the fourth respondent in these respects: "Intermediate period acts are acts done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1 which would otherwise be invalid because they failed to pass any of the future act tests set out in Division 3 of Part 2 or for any other reason because of native title: see s.4(5) and s.21. Intermediate period acts are defined in s.232A: see s.21(2) and s.232A. Subdivision B of Division 2A of Part 2 of the Native Title Act deals with Acts attributable to the Commonwealth. For such acts: (1) Section 22A provides that if an intermediate period act is an act attributable to the Commonwealth the act is valid and is taken always to have been valid. (2) Section 22B sets out the effect of such validation on native title. Slightly different effects occur depending upon whether the Intermediate period act is properly categorised as a category A intermediate period act, a Category B intermediate period act or a Category C/Category D intermediate period act. The relevant definition applicable to the mining lease grants is that of Category C intermediate period act. That term is defined as s.232D as "an intermediate period act consisting of the grant of a mining lease". (The renewals either fall into that category, or into Category D, which comprehends acts not in any other category: s.232E.) The non-extinguishment principle defined in s.238 will apply to define the way in which the grant or renewal of mining lease affects native title: s.22B. Subdivision C of Division 2A of Part 2 deals with acts attributable to a State or Territory. Section 22F is the State equivalent of s.22A and provides that if a law of a State contains provisions to the same effect as, relevantly, s.22B the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid and are taken always to have been valid. In respect of intermediate period acts attributable to the State – (1) Section 8A of the Queensland Act provides that if an intermediate period act is an act attributable to the State the act is valid and is taken always to have been valid. (2) Section 13AD of the Queensland Act provides for the effect of such validation on native title in the same way as does the Commonwealth statute. The effect of the amendments is that if any of the grants or renewals of mining leases which are the subject of the instant proceedings falls within the definition of intermediate period acts then – (1) that grant or renewal will be regarded as a category C or D intermediate period act: see s.232D, 232E; (2) that grant or renewal is valid and is taken always to have been valid: see s.8A of the Queensland Act; and (3) the non-extinguishment principle defined in s.238 will apply to define the way in which the grant or renewal of a mining lease affects native title: see s.13AD of the Queensland Act." 23 It was submitted by Mr Bond, on behalf of the fourth respondent, that all of the grants of mining leases and two of the renewals fall within the definition of intermediate period act, with the consequence that each of them is valid and is taken always to have been valid. It was further submitted that there was an argument that the five remaining renewals of mining leases, on 31st July 1997, were also valid - depending on the applicability of ss 24IB and 24IC of the new Act. Further, it is clear that the applicants intend to pursue their claim of native title, which is over a larger area than that covered by the mining leases. Since the hearing of submissions prior to the amendments in September 1998, a competing claim for native title has been lodged over an area which includes part of the area claimed by the applicants. 24 Mr Hiley QC, for the applicants, conceded that the amendments in September 1998 "are designed to achieve certain results but whether or not they do in fact achieve the particular results in this particular case is not clear." He correctly noted that the present is not a strike-out application, and that the question of whether the pre-Wik leases were validated and whether the post-Wik renewals are valid are issues for another day. He further submitted that there was an argument that validation would only occur as from the date of the new amendments, and the applicants may well be entitled to a declaration that they were for a period invalid. While there may be some relief open to the applicants on that basis, in my opinion there is much to be said for the view that if validation has occurred, it is to be treated as if that which is validated was valid at all material times. Again, though, that matter does not have to be decided on this application. 25 If the matter were to proceed in part on the present application, that would not stop or impede the progress of the determination of the native title claim, but there would be some duplication necessarily involved. 26 It seems to me that, since there must be a stay of part of the application (as is conceded by the applicants), and since there is an issue joined between the parties as to whether the remainder of the application does depend solely on the status of the applicants as claimants for registration, as the applicants contend, or involves the existence of native title as well, as the respondents contend, I think it appropriate to stay the whole proceedings until further order. The fact that it is strongly arguable that all grants and two of the renewals are validated by the amendments, together with the contention that the remaining five renewals might also be valid, supports the conclusion that a stay of the whole of the proceedings is the appropriate course. 27 At this stage, and particularly because of the impact of the amendments to the NTA on aspects of the stay applications, I will simply reserve costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 22 February 2000 Counsel for the Applicant: Mr G Hiley QC, and with Mr D Rangiah Solicitor for the Applicant: Reidy & Tonkin Counsel for the First, Second and Third Respondents: Mr G Gibson QC, and with him Mr G Koppenol Solicitor for the First, Second and Third Respondents: Crown Law Counsel for the Fourth Respondent: Mr J Bond Solicitor for the Fourth Respondent: Allen, Allen & Hemsley Date of Hearing: 18 February 2000 Date of Judgment: 18 February 2000