Case: The Lardil Peoples v Queensland [2001] FCA 414 ; (2001) 108 FCR 453
Outcome: applied
submission of Santos, Delhi Petroleum and the State that the application has no reasonable prospects of success is, in summary: (a) the Applicants do not seek a determination of native title in the present proceeding; (b) the definition of "future act" in s 233(1) of the NTA is that it is an act which, apart from the NTA, either validly affects (in the sense that word is to be understood in light of in s 227 of the NTA) native title in relation to the land or would, if valid, affect native title; (c) in light of Full Court's judgment in The Lardil Peoples v Queensland [2001] FCA 414 ; (2001) 108 FCR 453 ( Lardil ), to secure final relief of the kind sought by the Applicants it is not sufficient to establish only that an act might affect native title if native title were found to exist; (d) a corollary of this is that mere status as a registered native title claimant can never supply the requisite element in the definition of future act, which is also an element in any entitlement to the relief sought. The Applicants, in summary, make the following submission in response: (a) Lardil is distinguishable because it related to procedural rights conferred by s 24HA and s 24NA of the NTA and not the right to negotiate under Subdiv P of Div 2 of Pt 3 of that Act; (b) in any event, the declaration that the grant of a petroleum lease would not constitute a pre-existing rights based act does not require the Applicants to establish that they have native title because, if there is no valid ATP, it necessarily follows that there could be no valid grant of a petroleum lease. The latter submission entails some exploration of the ability of this Court to make any pronouncement in relation to the validity of an administrative actions arising only under State law. That is best considered in conjunction with the separate, jurisdictional challenge which Santos and Delhi Petroleum make. Lardil is not distinguishable. To the contrary, that case confirms, in a binding way, what a reading of the definition of "future act" in s 233 of the NTA would in any event suggest. That is, materially, that a future act is one which "affects" native title, not an act which, if native title existed, "might" affect it. To construe the definition in the latter way would, as French J (as the Chief Justice then was) observed in Lardil (at 473, [59]), "require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act. Such a course is not justified by the language of a statute". Similar sentiments are evident in the judgments of the other members of the Full Court in Lardil see p 476, [70] per Merkel J and p 486, [114] per Dowsett J. The "right to negotiate" claimed by the Applicants forms part (Subdiv P) of Div 3 of Pt 2 of the NTA. Regard to the overview of Div 3 of Pt 2 of the NTA, offered by s 24AA, also exposes the flaw in the Applicants' position. Thus, s 24AA(1) accurately informs the reader that Div 3 "deals mainly with future acts, which are defined in s 233" and that, " Acts that do not affect native title are not future acts; therefore this Division does not deal with them " (emphasis added). In turn, s 24AA(2) of the NTA offers the accurate general observation that, "to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not". These general propositions, evident from the overview of Div 3, are expressly articulated in s 24OA of the NTA, which provides: 24OA Future acts invalid unless otherwise provided. Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title. This section does not attend with invalidity a future act which might affect native title, were the same to exist. As in Lardil , the relief sought by the Applicants is final relief in a proceeding where no claim for native title is advanced. They rely on their status as the "registered native title claimant". Yet the advancing and successful vindication of a native title claim, not status as the "registered native title claimant", is, given the definition of "future act", just as central to the application of provisions upon which the Applicants rely as it was to those under consideration in Lardil . To seek to distinguish Lardil on the basis that the rights within Div 3 of Pt 2 with which that case was concerned were "procedural rights" ignores this centrality. For the purposes of s 31A of the FCA Act the Respondents have established that the Applicants have no reasonable prospect of securing any of the declaratory and injunctive relief which they seek, insofar as they rely on other than State law for any part of that relief. Jurisdiction &amp; Standing Section 81 of the NTA confers on the Court jurisdiction to hear and determine applications that "relate to native title". Read in isolation and as a matter of first impression and language, the jurisdiction conferred by this section appears to require nothing more or less than a relevant connection between the subject matter of an application and native title. In Lardil though (108 FCR at [156] and [68]), the conclusion was reached, after a consideration of the context in which s 81 appears in the NTA, that the section confers jurisdiction only in respect of applications under Pt 3 of that Act. This is not such an application. Perhaps recognising this, the Applicants did not point to s 81 as a source of jurisdiction to entertain their application. Instead, they adverted to s 213(2) of the NTA, to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act) and to s 21 of the FCA Act. Subject to the operation and effect of the other provisions of the NTA, s 213(2) confers jurisdiction on the Court "in relation to matters arising under the Act". For its part, s 39B(1A)(c) of the Judiciary Act confers jurisdiction with respect to "matters arising under any laws made by the Parliament". The reference to s 21 of the FCA Act as a source of jurisdiction is misconceived. That section operates where some other provision has conferred original jurisdiction on the Court and, in such circumstances, empowers the Court to "make binding declarations of right, whether or not any consequential relief is or could be claimed". In other words, s 21 is a source of power, not jurisdiction. Common to each of s 39B(1A)(c) of the Judiciary Act and s 213(2) of the NTA is that the jurisdiction they confer is confined to the "matters" which those sections respectively specify. No point was taken in Lardil as to the absence in that case of a "matter". In the present case the amended statement of claim contains the following allegations: The applicants on behalf of the Wongkumara People are the registered native title claimant within the meaning of s 253 of the Native Title Act 1993 (Cth) (the NTA) in respect of land in south-west Queensland and north-west New South Wales, which land ("the Claimed Land") is more particularly described in attachment B to Native Title Determination Application QUD52 of 2008 (as amended by leave granted by Dowsett J on 12 April 2008). The first respondent and third respondent are recorded in the register kept under s 80A of the Petroleum Act 1923 (Qld) (the Petroleum Act ) as the holder of an Authority to Prospect (ATP) 259P dated 31 January 1979 pursuant to the Petroleum Act in respect of land in south-west Queensland (the ATP Land), which land lies wholly within the boundaries of the Claimed Land. The second respondent is a Government party within the meaning of s 26(1) of the NTA for lands and water within the state of Queensland. 3A. Since the grant of ATP 259P the first and third respondents have prospected and continue to prospect for petroleum on the ATP Land including the Claimed Land. From about late 2005, representatives of the Wongkumara People and of the first respondent on behalf of the itself and the third respondent and other companies being joint venture partners of the first and third respondents have been engaged in negotiations for an indigenous land use agreement ("the proposed ILUA") under the Native Title Act 1993 (Cth) (NTA), which negotiations relate, inter alia, to proposed future acts under the NTA in respect of the Claimed Land covered by the ATP. 4A. The proposed ILUA is to replace an Indigenous Land Use Agreement ("the former ILUA") that was part of an Implementation Agreement dated 16 January 2001 and which was in force for a term of five years. 4B. The former ILUA was never registered under the NTA. In the course of negotiations for the former ILUA and for the proposed ILUA the first respondent on behalf of itself and its joint venture partners has claimed that because ATP 259P predates the NTA and the grant of a petroleum lease under the Petroleum Act is a pre-existing rights based act (PERBA) within the meaning of Subdivision I of Division 3 of Part 2 of the NTA and as such is not subject to the right to negotiate provisions of Subdivision P of Division 3 of Part 2 of the NTA and should not be part of the negotiations for the proposed ILUA. Particulars Clause 9.4 of the former ILUA Letter dated 4 November 2005 from the first respondent to representatives of the Wongkumara People. The applicants have maintained that they are entitled to the right to negotiate under the NTA in respect of the grant of petroleum lease over the Claimed Land covered by the ATP and that the grant of a petroleum lease should be part of the negotiations for the proposed ILUA. Particulars Clause 9.4 of the former ILUA Letter dated 18 June 2008 from Eddy Neumann Lawyers, solicitors for the applicant, to the first respondent. ATP 259P was originally issued on 31 January 1979 for a term of four years commencing n 1 January 1979. From time to time thereafter, the term of ATP 259P has purportedly been varied, extended or renewed. Particulars (a) 22 December 1982: variation by which the term was renewed for four years commencing on 1 January 1983. (b) 18 December 1986: variation by which the term was extended for four years commencing on 1 January 1987. (c) 7 May 1991: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1991. (d) 20 September 1995: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1995. (e) 24 June 1999: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1999. (f) 12 December 2003: variation by which the term of the ATP was extended for four years commencing on 1 January 2003. (g) 3 January 2008: renewal by which the term of the ATP was renewed for a term of four years commencing January 2007. Read with the relief sought by the Applicants, the amended statement of claim offers, in my opinion, a paradigm example of an impermissible attempt to secure an advisory opinion. What is revealed is nothing more than a difference in contractual negotiating positions between the Applicants, who claim in other proceedings, but have not yet been determined to hold, native title in respect of the claimed land and Santos and Delhi Petroleum who may one day seek to obtain from the State a petroleum lease in respect over part of the claimed land on the strength of ATP259P. It is not pleaded that any such lease has been granted or is even imminently to be granted. In effect, what the Applicants seek is advice as to whether, were it to be determined that they hold native title and were a petroleum lease to be sought by and granted to Santos or to Delhi Petroleum by the State, that lease, if otherwise valid, would be an invalid future act if the negotiation requirements found in Subdiv P of Div 3 of Pt 2 of the NTA were not complied with? The hypothetical nature of the application is self evident. To adapt the language employed by Zamir I and Lord Woolf in the passage quoted, the question would only be whether the Applicants, Santos and Delhi Petroleum were generally obliged to act in a certain way? Before anything more meaningful than an answer to that question could be given, the legal and factual issues just mentioned would have to be determined and occur. In Lardil (at 490, [136]), Dowsett J expressly adverted to the question of whether the Applicants in that case had standing to pursue the claim for relief insofar as it sought a declaration of invalidity under State law. His Honour doubted that they had standing. Nonetheless, he went on to consider the State law question, ultimately concluding that the decision sought to be impugned was valid. Of the other judges, French J, in the minority as to this aspect of the case, was of the view that there was no jurisdiction to determine the State law question. Though Merkel J expressed his agreement with the conclusion reached by Dowsett J as to the validity of the decision under State law, his Honour did not, in terms, expressly extend that agreement to the doubt as to standing which had been expressed by Dowsett J. In Lardil , the majority concluded that the Court had jurisdiction to decide the State law question of the validity of an act under that law because deciding that question was an essential step in any determination of whether there was a "future act" under the NTA. Here, the Applicants have commenced an application not materially distinguishable from Lardil which, in light of that case, is doomed to fail with respect to its Federal aspects. The essential connection with the Federal question provides the only jurisdiction which the Court could have to decide the State law question. In those circumstances, if there were jurisdiction to entertain the Federal question, the deciding of the State law question would be a matter of accrued jurisdiction in respect of which s 23 of the FCA Act would operate so as to confer jurisdiction. In light of Lardil and the fact that the present case is not materially distinguishable from that authority, the present case was doomed to fail. The Federal law aspect of the application was therefore, in the sense the term is used in the cases "colourable". That has the consequence that there is no jurisdiction to entertain the State law aspect of the claim, even if the Applicants had standing. Exercise of Discretion In the event that the foregoing conclusions are wrong, I should nonetheless not be disposed to the grant declaratory relief in respect of so much of the claim as remained and relied for its foundation on the State law question of whether it was lawfully possible to grant petroleum leases on the strength of ATP 259P. That would turn on a question as to whether on the particular dates pleaded there was a power of renewal in the Petroleum Act or otherwise under State law. Lardil indicates that jurisdiction would, in these contingent circumstances, exist to determine such a question in the accrued jurisdiction.