FEDERAL COURT OF AUSTRALIA Marika [2017] FCA 632 File number: NTD 27 of 2017 Judge: REEVES J Date of judgment: 30 May 2017 Catchwords: PRACTICE AND PROCEDURE – application before the commencement of a proceeding under r 7.01 of the Federal Court Rules 2011 (Cth) for an urgent ex parte injunction to prevent the prospective respondents from granting a lease under s 19A of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – whether there is a serious question to be tried – whether the balance of convenience favours the grant of the injunction Held: application granted Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Judiciary Act 1903 (Cth) Federal Court Rules 2011 (Cth) Cases cited: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu (2000) 171 ALR 341; [2000] HCA 23 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 Date of hearing: 30 May 2017 Registry: Northern Territory Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 15 Counsel for the Prospective Applicants: Mr D Yarrow Solicitor for the Prospective Applicants: Minter Ellison ORDERS NTD 27 of 2017 BAKAMUMU ALAN MARIKA First Prospective Applicant WITIYANA MARIKA Second Prospective Applicant WANYUBI MARIKA (and others named in the Schedule) Third Prospective Applicant JUDGE: REEVES J DATE OF ORDER: 30 MAY 2017 THE COURT ORDERS THAT: 1. Until further order of the Court, the Arnhem Land Aboriginal Land Trust be restrained, whether by its servants, agents or otherwise howsoever, from granting a lease under s 19A of the Aboriginal Land Rights (Northern Territory) Act 1976 over any part of the area of Aboriginal land held by it that is: (i) within the area described by the "PROPOSED LEASE BOUNDARY" that was contained in the letter of the Northern Land Council to the Rirratjingu Aboriginal Corporation dated 4 October 2016 and is annexure SHC 6 to the affidavit of Sophia Hopkins Cleveland sworn 29 May 2017; and (ii) is to the right of the green line shown in the aerial photograph contained within annexure SHC 1 to the affidavit of Sophia Hopkins Cleveland sworn 29 May 2017. 2. The costs of this application are reserved. 3. These orders are entered by them being authenticated in Court in accordance with r 41.06 of the Federal Court Rules 2011 (Cth). 4. The application filed 29 May 2017 is adjourned for further consideration at 11.00 am (ACST) on 1 June 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REEVES J: 1 This is an urgent ex parte application for an interlocutory injunction made before the commencement of proceedings under r 7.01 of the Federal Court Rules 2011 (Cth). The urgency of the application stems from an ABC Media item of 17 May 2017, stating: The lease is due to be finalised after a signing ceremony with the Indigenous Affairs Minister in June. 2 The need to proceed ex parte arises from the concern of the prospective applicants that the lease will be granted immediately if notice were to be given to the prospective respondents. I should note that, during the luncheon adjournment, the Northern Land Council and the Minister – although the Minister is not a prospective respondent – were notified of the existence of this application and their representatives appeared, when the Court resumed. However, due to the short notice and their inability to familiarise themselves with the details of the application, they elected to allow it to proceed ex parte. Together, these two matters, that is, the urgency and the concern that gives rise to the application being made ex parte, account for it being made before the commencement of the proceedings under r 7.01. 3 The prospective applicants are five senior members of the Rirratjingu clan whose traditional lands are situated in Eastern Arnhem Land in the Northern Territory. Of particular importance to this application, the prospective applicants claim to be the traditional owners, as that expression is defined in s 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act), of a part of an area of land on the Gove peninsula known as Drimmie Head. 4 There are three prospective respondents to the application. They are the Northern Land Council (the NLC), the Arnhem Land Aboriginal Land Trust (the Trust) and the Gumatj Corporation Limited (Gumatj). 5 The catalyst for the application is the intended grant under s 19A of the Land Rights Act of a lease by the Trust to an entity associated with the Gumatj. 6 The NLC has been nominated as prospective respondent because s 19A of the Land Rights Act requires it to take certain steps before the Trust is able to exercise the power to grant the lease. Section 19A of the Land Rights Act relevantly provides: Grant of lease (1) A Land Trust may grant a lease of a township to an approved entity if: (a) the Minister consents, in writing, to the grant of the lease; and (b) the Land Council for the area in which the land is situated directs, in writing, the Land Trust to grant the lease. A consent or direction under this subsection is not a legislative instrument. (1A) If an approved entity is the Commonwealth or a Commonwealth authority (within the meaning of the Lands Acquisition Act 1989), the Commonwealth or authority is authorised to acquire a lease under this section. … Land Council direction (2) A Land Council must not give a direction under subsection (1) for the grant of a lease unless it is satisfied that: (a) the traditional Aboriginal owners (if any) of the land understand the nature and purpose of the proposed lease and, as a group, consent to it; and (b) any Aboriginal community or group that may be affected by the proposed lease has been consulted and has had adequate opportunity to express its view to the Land Council; and (c) the terms and conditions of the proposed lease (except those relating to matters covered by this section) are reasonable. (3) If a Land Council, in giving a direction for a grant of a lease, fails to comply with subsection (2), that failure does not invalidate that grant unless the approved entity to whom the grant was made procured the direction of the Land Council by fraud. Term of lease (4) The term of a lease granted under this section is the term specified in the lease (which must be at least 40 years and no more than 99 years). The term specified in the lease must not be varied. This subsection is subject to subsections (4A) and (5). (4A) A lease granted under this section may provide for the variation of the lease by way of one or more extensions of the term of the lease. The extensions must not result in the term of the lease being more than 99 years. Interpretation (4B) Subsection (4A) does not limit variations of the lease in relation to other matters. … 7 The area of the proposed lease includes the particular area in respect of which the Rirratjingu claim to be traditional owners as mentioned above. That area is shown on a map which forms a part of annexure SHC1 to the affidavit of Ms Sophia Cleveland filed on 29 May 2017. In particular, it is the area to the right of the green line marked on that map. 8 For present purposes, to succeed in this application, the prospective applicants are required to show that (a) there is a serious question to be tried; and (b) the balance of convenience favours the grant of the injunction: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). These considerations apply in public law proceedings: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu (2000) 171 ALR 341; [2000] HCA 23 at [7] per Gleeson CJ. Further, in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156, the Full Court emphasised that the strength of an applicant's case is a factor to be considered in determining where the balance of convenience lies. 9 As to the former question, the prospective applicants propose to commence proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and under s 39B(1) of the Judiciary Act 1903 (Cth), in which they propose to challenge the following three decisions of the NLC: (a) its decision notified on 14 October 2016 to recognise the Gumatj clan as the sole traditional owners of the whole of the area of the proposed lease; (b) its decision on an unknown date that it had complied with its obligations under s 19A(2) of the Land Rights Act; (c) its decision of 16 November 2016 to give a direction to the Trust under s 19A(1)(b) of the Land Rights Act to grant the lease. 10 Mr Yarrow, for the prospective applicants, identified three grounds for these challenges: (a) the alleged failure of the NLC to afford natural justice or procedural fairness to the prospective applicants by not giving them an opportunity to comment on the information that the NLC used to determine that the Gumatj were the sole traditional owners of the land in question; (b) the failure to take account of the competing claims of the prospective applicants – the Rirratjingu clan – as traditional owners of the land, or at least that part of it that I have described above, in deciding to give the direction on 16 November 2016; and (c) failing to comply with procedures required by law, namely s 19A(2) of the Land Rights Act. 11 Mr Yarrow also identified a challenge to the NLC's refusal to comply with requests made of it under s 13(5)(b) of the ADJR Act, which requests were made on 20 January 2017 and 24 October 2016. 12 The grounds for proceeding under s 39B(1) of the Judiciary Act 1903 (Cth) are essentially the same as those I have outlined above. 13 To establish that they are persons aggrieved within the provisions of the ADJR Act, the prospective applicants have relied on an anthropological report which is annexed to the affidavit of Ms Sophia Cleveland filed 29 May 2017 and also affidavits of two of the prospective applicants filed 30 May 2017, namely Wanyubi Marika and Bakamumu Alan Marika. In those affidavits, the deponents claim that they are senior members of the local descent group of Aboriginal people known as the Rirratjingu and they identify the areas shown on the map, described earlier, as being a part of the lands for which the Rirratjingu are the traditional Aboriginal owners. 14 During the course of lengthy and detailed submissions, Mr Yarrow took me through the affidavit of Ms Sophia Cleveland mentioned above and, in compliance with his obligations when making an ex parte application of this kind, he identified a number of matters that he claimed may have been argued by the prospective respondents in opposition to this application if they were present. Having regard to the material I have been taken to, and Mr Yarrow's assurance he has complied with his obligations as described, I am satisfied, on an interim basis, of the following matters: (a) that the prospective applicants are aggrieved persons and also have the status to bring proceedings under s 39B(1) of the Judiciary Act 1903 (Cth); (b) that the matter is urgent, given the statement that the lease is about to be finalised at a signing ceremony in June 2017. On this aspect, I should add that the Minister's representative, who appeared after the luncheon adjournment, informed me that the Minister had received a request from the NLC relating to the proposed lease, but he had not yet had an opportunity to consider that request; (c) that there are four serious questions to be tried, as outlined by Mr Yarrow in submissions, and briefly summarised above; and (d) that the balance of convenience, at least on an interim basis, favours the grant of the injunction. In particular, if the lease is granted, absent fraud, s 19A(3) of the Land Rights Act provides that it will be valid, notwithstanding a failure to comply with that section. 15 Before I make the orders sought, I note the undertakings given by Mr Yarrow on behalf of the prospective applicants in relation to damages and under r 7.01 of the Federal Court Rules 2011 (Cth) to commence proceedings within 14 days after the making of this application. Noting those undertakings, I order that: 1. Until further order of the Court, the Arnhem Land Aboriginal Land Trust be restrained, whether by its servants, agents or otherwise howsoever, from granting a lease under s 19A of the Aboriginal Land Rights (Northern Territory) Act 1976 over any part of the area of Aboriginal land held by it that is: (a) within the area described by the "PROPOSED LEASE BOUNDARY" that was contained in the letter of the Northern Land Council to the Rirratjingu Aboriginal Corporation dated 4 October 2016 and is annexure SHC 6 to the affidavit of Sophia Hopkins Cleveland sworn 29 May 2017; and (b) is to the right of the green line shown in the aerial photograph contained within annexure SHC 1 to the affidavit of Sophia Hopkins Cleveland sworn 29 May 2017. 2. The costs of this application are reserved. 3. These orders are entered by them being authenticated in Court in accordance with r 41.06 of the Federal Court Rules 2011 (Cth). 4. The application filed 29 May 2017 is adjourned for further consideration at 11.00 am (ACST) on 1 June 2017. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 5 June 2017 SCHEDULE OF PARTIES NTD 27 of 2017 Applicants Fourth Prospective Applicant: WURRULUNGA MARIKA Fifth Prospective Applicant: LAKLAK MARIKA