FEDERAL COURT OF AUSTRALIA Northern Land Council v UAU Pty Ltd [2017] FCA 784 File number: NTD 38 of 2017 Judge: WHITE J Date of judgment: 5 July 2017 Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain the respondent from entering on land within the area of a Land Trust. Held: interlocutory injunction granted. Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 ss 3, 4, 5(2), 21, 23, 68, 70 Mineral Titles Act 2010 (NT) s 84 Cases cited: Samsung Electronics Company Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 Date of hearing: 5 July 2017 Registry: Northern Territory Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 28 Counsel for the Applicants: Mr R Wilson Solicitor for the Applicants: Northern Land Council Counsel for the Respondent: Mr N McCleary appeared on behalf of the Respondent ORDERS NTD 38 of 2017 BETWEEN: NORTHERN LAND COUNCIL First Applicant WAANYI/GARAWA ABORIGINAL LAND TRUST Second Applicant AND: UAU PTY LTD ACN 609 676 280 Respondent JUDGE: WHITE J DATE OF ORDER: 5 JULY 2017 PENAL NOTICE TO: UAU Pty Ltd IF YOU (being the person bound by this order): (A) Refuse or neglect to do any act within the time specified in this order for the doing of the act; or (B) Disobey the Order by doing an act which the order requires you not to do, You will be liable to imprisonment, sequestration of property or other punishment. Any other person who knows of this order and does anything which helps or permits you to breach the terms of this order may be similarly punished. UPON NOTING the undertaking by each of the Applicants by their counsel a. to submit to such order, if any, as the Court may consider to be just for the payment of compensation to be assessed by the Court or as it may direct to any person, whether or not that person is a party to the proceedings, affected by the operation of the order, or undertaking or any continuation, with or without variation of the order or undertaking; and b. to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking; THE COURT ORDERS THAT: 1. Until further order the Respondent whether by itself, its officers, employees, agents or contractors howsoever be restrained from: a. entering or remaining on or crossing any land within the Waanyi/Garawa Aboriginal Land Trust Area comprised in Register Book Volume 155 Folio 198 which surrounds Mineral Lease 585 (the Aboriginal Land) for the purpose of or relating to obtaining access to Mineral Lease 585; b. causing damage to the Aboriginal Land; c. committing any activity on the Aboriginal Land, including the carrying out of exploration or mining activities, camping, the creation or construction of roads or tracks or accessing or taking water or any activities ancillary to these matters without either: i. express agreement with the Northern Land Council pursuant to s 70(4)(c) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); or ii. in the event that the Respondent and the Northern Land Council fail to agree, a determination by arbitrator appointed by the Minister pursuant to s 70(4)(d) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). 2. The costs of and incidental to the application for the interlocutory injunction are reserved. 3. The Applicants are by 18 July 2017 to file and serve their statement of claim. 4. The Respondent is by 11 August 2017 to file and serve its defence. 5. Any reply by the Applicants is to be filed and served by 25 August 2017. 6. The matter is adjourned for further directions at 3 pm on Tuesday 5 September 2017. 7. There be liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT WHITE J: 1 I am dealing with an application for an interlocutory injunction to restrain a mining company from entering on to land within the area of the Waanyi/Garawa Aboriginal Land Trust (the Land Trust) in the Northern Territory. 2 The first applicant is the Northern Land Council (the NLC). It is a land council established under s 21 of the Aboriginal Land Rights (Northern Territory) Act 1976 (the ALRA). The NLC has the functions of a land council under s 23 of the ALRA in relation to the land which is the subject of the Land Trust. Those functions include the protection of the interests of the Aboriginal owners in the land. 3 The second applicant is the Waanyi/Garawa Aboriginal Land Trust. It is a land trust established under s 4 of the ALRA and is the registered proprietor of a substantial area of land in the Northern Territory abutting the border of the Northern Territory with the State of Queensland. That land was vested in it by a Deed of Grant made under the ALRA. The area of the land subject to the Land Trust is Aboriginal land, as that expression is defined in s 3 of the ALRA. Section 5(2) of the ALRA obliges a Land Trust to exercise its functions in relation to the land it holds on trust in accordance with directions given to it by the relevant land council which, in this case, is the NLC. 4 The respondent is a mining company which has recently acquired Mineral Lease 585 (ML 585) governed by the Mineral Titles Act 2010 (NT) (the MT Act). The area which is the subject of ML 585 is wholly within and surrounded by the land subject to the Land Trust. 5 Section 70(1) of the ALRA prohibits a person from entering on to, or remaining on, Aboriginal land. The subsections which follow in s 70 provide for some qualifications and defences to the general prohibition. Section 70(4) addresses circumstances like the present, in which persons may obtain access to land in which they have an interest only by crossing over Aboriginal land. Put more shortly, s 70(4) provides for means of access to land which is landlocked by Aboriginal land. It provides: (4) Where: (a) a person has an estate or interest in land, being land that the person is entitled, under subsection (2), to enter and remain upon or being land in the vicinity of Aboriginal land; and (b) there is no practicable way of gaining access to the land in which the person has that estate or interest otherwise than by crossing Aboriginal land (not being land that is, or forms part of, land described in Schedule 1); a person is entitled, for the purpose of gaining that access so as to enable the use or enjoyment of that estate or interest by the owner of that estate or interest, to enter that Aboriginal land and to cross it by a route: (c) that is agreed upon between the owner of that estate or interest and the Land Council in the area of which that Aboriginal land is situated; or (d) if that owner and that Land Council have failed to agree—that is determined by an Arbitrator appointed by the Minister. 6 I have described ML 585 as being landlocked. In saying that, I am not overlooking evidence which indicates that there are two disused tracks on the Land Trust land providing access to ML 585 from a public road, namely, Nicholson River Road. The evidence presently before the Court indicates that these are old and disused tracks. 7 Since at least May 2017, there has been extensive correspondence between the NLC, on the one hand, and Mr McCleary, the sole director of the respondent, on the other. It is not necessary for present purposes to summarise the whole of the correspondence. It is sufficient, in my view, to say that the correspondence discloses the following matters for the purposes of the present application: (a) although the original ML585 was issued before the Deed of Grant of the Land Trust in 1985, it was not excluded from the grant and, accordingly, the area to which it relates comprises Aboriginal land; (b) Mr McCleary has informed the NLC that a drilling company with which the respondent has contracted will commence drilling sample holes on ML 585 on 6 July 2017, that is to say, tomorrow; (c) the respondent and the NLC have not agreed upon a route by which the respondent, its agents, employees or contractors, and in particular, the respondent's drilling contractor, may cross the Land Trust land, as contemplated by s 70(4)(c); (d) nor has there been any route determined by an arbitrator appointed by the Minister, as contemplated by s 70(4)(d) and, in any event, it may be doubtful that the present position could be accurately described as one in which the NLC and the respondent have "failed to agree" on such a route so as to enliven the power of the Minister to appoint an arbitrator; (e) an application by the respondent to the Northern Territory Civil and Administrative Tribunal (the NTCAT) in relation to the grant of an access authority pursuant to s 84 of the MT Act was refused on 12 May 2017; (f) the NLC has, on more than one occasion, informed the respondent of its willingness to facilitate the negotiation of an access agreement by which it can cross over the Land Trust land to ML 585. However, it does not seem that there have been any realistic negotiations to that end. There are indications in the correspondence that this may be attributable in large part to the fact that the respondent has not nominated its preferred route over the land so that the NLC can take instructions concerning it. In addition, the respondent has not to date agreed to pay the costs which the NLC will incur in the negotiation of the agreement; (g) Mr McCleary, has from time to time, made a number of statements which are seemingly inconsistent with an intention by the respondent to negotiate any access agreement. These include assertions that ML 585 excludes all forms of Aboriginal title and that neither the NLC nor the traditional owners have any relevant interest of which the respondent need take account; (h) the NLC has on more one occasion drawn the respondent's attention to the provisions in the ALRA which it contends would make unlawful any incursions by the respondent on to the Land Trust area in order to obtain access to ML 585; (i) although the NLC on 28 June 2017 sought an undertaking from the respondent which may have made the application for the interlocutory injunction unnecessary, the respondent has not to date provided any undertaking in terms which the NLC regards as satisfactory. 8 At one stage in the correspondence, Mr McCleary indicated that the respondent took the view that s 68(4) of the ALRA authorised the respondent to cross over the Land Trust land to obtain access to ML 585. It is difficult to see how s 68(4) could have that effect because it applies only to the construction, upgrade or use of a road over Aboriginal land in which a person other than a land trust has an estate or interest. There is no indication in the materials before the Court that the respondent has an estate or interest in any part of the Land Trust area other than ML 585, so as to attract the operation of s 68(4). I also observe that, in the submission which the respondent made to the NTCAT, it made an express concession that s 68 of the ALRA has no present application. 9 Both in the correspondence and in his submissions today, Mr McCleary has contended that s 70(2) of the ALRA provides the respondent with a right to cross over the Land Trust land to obtain access to ML 585. Section 70(2) provides: (2) Where a person, other than a Land Trust, has an estate or interest in Aboriginal land: (a) a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and (b) a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his or her presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest. 10 It is doubtful, on my present understanding, that s 70(2) has the effect for which Mr McCleary contends. There are two reasons for that. The first arises from the juxtaposition of s 70(2) and (4). Subsection (4) is a specific provision dealing with the means by which a person may obtain access over Aboriginal land to landlocked land. That being so, it seems improbable that subs (2) is directed to the same subject matter. Secondly, on its own terms, subs (2)(a) is confined to the vesting of a right of entry and a right to remain on land in which a person has an estate or interest, but is silent on the topic of the means by which the person may obtain access to that land in order to enter it or to remain on it. 11 I consider it appropriate, therefore, to proceed on the basis that it is doubtful that either s 68(4) or s 70(2) provide the right to cross over the Land Trust land asserted by Mr McCleary on behalf of the respondent. 12 I mention that Mr McCleary also made a submission concerning s 70(4)(c) to the effect that the contemplated agreement is one between the respondent, on the one hand, and the NLC, on the other. That is to say, not an agreement between the respondent and the traditional owners, per se. There does seem to be force in that submission, but I do not consider that it bears upon the application of s 70(4) in the present circumstances. 13 I emphasise that I am not to be understood as expressing a final view about the proper construction of s 68(4) or s 70(2), only a view to the extent necessary for the purposes of dealing with the application for an interlocutory injunction. 14 Ms Orlow, an employed solicitor within the NLC who has had the conduct of the correspondence with the respondent, has deposed to her belief that there is a substantial risk that unless restrained by injunction, the respondent will instruct or allow its contractors to access ML 585 by entering onto and crossing over the Land Trust area otherwise than by agreement with the NLC or pursuant to the determination of an arbitrator under s 70(4) of the ALRA. On my reading of Ms Orlow's affidavit and of the attachments to it, some of which have been summarised by me already, that belief is well justified. 15 The principles relating to the Court's grant of interlocutory injunctions are settled and it is not necessary for present purposes to refer to the authorities in detail. They were summarised by the Full Court in Samsung Electronics Company Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]. An applicant for an interlocutory injunction must identify the legal or equitable rights which it seeks to have determined at the trial, and in respect of which final relief is sought. When such a right has been identified, the Court has regard to two principal matters: first, whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is at trial, there is a probability that it will be held entitled to relief; and, secondly, whether the balance of convenience favours the granting of the injunction. That includes consideration of whether damages or other remedies would be an adequate remedy. 16 On the hearing of an application for an interlocutory injunction, the Court does not undertake a preliminary trial, nor does it make a prediction as to the ultimate success or otherwise of the applicant's claim. It is sufficient if the applicant shows a sufficient likelihood of success to justify, in the circumstances of the case, the preservation of the status quo pending the trial of the action. 17 The two matters just identified are not independent of one another. The more the balance of convenience favours the respondent and the more serious the consequences for the respondent if an injunction is granted, then the greater the strength of the prima facie case to be established by an applicant. Conversely, if the balance of convenience favours the applicant strongly, then the strength of the prima facie case required to support the interlocutory injunction will usually be less. 18 On the evidence and materials presently before the Court, the applicants' prima facie case appears to be strong. That is because of the ownership by the second applicant of the land and the functions of the NLC in relation to the land and because, on my present understanding of the matter, the respondent has not identified any legal right which it has to enter the area of the Land Trust. The respondent seems to be threatening conduct which would constitute, at the least, a breach of provisions in the ALRA and which, if not authorised by legislation, would constitute a trespass to the Land Trust area. 19 On the balance of convenience, the applicants point to the potential for an unauthorised entry by the respondent or its contractors to intrude upon and to cause damage to the land including to sites which are sacred to the traditional owners of the trust land. This includes the potential for damage of a permanent kind. Irrespective of the potential for damage, the threatened entry by the respondent on to the land, if not authorised by statute, would constitute a trespass and an infringement of the Land Trust's proprietary rights. 20 The nature of the incursion threatened by the respondent and the potential for damage suggests that it would not be appropriate for the Court to regard damages as providing an adequate remedy. The infringement of the Land Trust's proprietary rights may sound in damages, although it is not easy to see how they would be assessed. Of more significance is the prospect of there being damage, perhaps permanent damage, to the Land Trust's land, and, in particular, to sacred sites within that land. 21 It is true, as Mr McCleary has submitted, that, with one exception, no sacred sites have been identified so far, but I do not regard that as being a matter of significance. The existence of such sites has not yet been investigated. That is because Mr McCleary has, so far, declined the invitation of the NLC to identify the preferred route by which the respondent wishes to obtain access to ML 585, so that the NLC may take instructions, as required by the ALRA, from the traditional owners on matters relating to that route. It is to be expected that such instructions would take account of any sacred sites which may be affected by the adoption of that route. 22 On the respondent's side, I accept that there would be some inconvenience resulting from the grant of an interlocutory injunction. It will have to stop, or at least not be able to continue, with its planned drilling program, and therefore be delayed from engaging in the exercise of the rights which it has under ML 585 to exploit the mineral resources on the land. I take into account, however, that there is a sense in which the respondent seems to have brought this predicament upon itself, because it has had ample opportunity since May to take up the invitation of the NLC to negotiate an access agreement, but has chosen not to do so. 23 I also consider it appropriate, when considering the balance of convenience, to take into account that there are aspects of the respondent's conduct disclosed by the correspondence which seem to evidence a disregard of the limitations imposed on it by the provisions of the ALRA and perhaps by other legislation. An instance in this regard is the statement of Mr McCleary in an email to Ms Orlow of 28 June 2017 as follows: As the legal owner of the lease, I am entitled to enjoy the use of MLN585. There are existing rights of way and under ALRA 70(2), I am entitled to use them. It is not of my concern if the NLC has an obligation to talk with TOs about this matter as in their case there is no choice or decision to be made. I neither need nor want anything from them. It will be apparent from what I have said so far that, on my present understanding, Mr McCleary's position is mistaken. 24 Since the applicants filed the application seeking the interlocutory injunction, there has been further correspondence between the parties. Mr McCleary submitted today that an injunction was unnecessary in view of the terms of an undertaking which he had offered to the NLC in that correspondence. The undertaking to which he referred was that provided in an email to the NLC on 4 July 2017 at 12.15 am. It is not necessary for me to set out the terms of that undertaking presently. It is sufficient for me to say that I regard the terms of that undertaking as being insufficiently precise to dissuade the Court from issuing an interlocutory injunction to which the applicants are otherwise entitled. 25 In further discussions with the NLC, Mr McCleary has proposed other alternatives in an apparent attempt to confine the effect of the injunction to s 70(4)(c). The effect, if I understand it correctly, if that course was adopted would that it be that it would then be open for the respondent, if it thought itself entitled to do so, to assert that it was entering onto the Trust Land to obtain access to ML 585 pursuant to other provisions in the ALRA or perhaps pursuant to other legislation. However, the respondent has not identified any provisions which could, at least, arguably rive rise to such an entitlement. In those circumstances, the respondent's proposal would make the operation of the injunction uncertain and perhaps make it unenforceable. 26 For those reasons, I consider that the proposed undertakings by the respondent are not adequate in lieu of the grant of an interlocutory injunction. 27 In summary, I am satisfied that the applicants have established a strong prima facie case and that the balance of convenience favours the applicants. The applicants have, as expected, proffered the usual undertaking as to damages. There was no suggestion that those undertakings should not be regarded as undertakings of substance. 28 Accordingly, I am satisfied that it is appropriate to grant the interlocutory injunction sought by the applicant, after modifying its terms in minor respects. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 12 July 2017