Burragubba v Minister for Natural Resources and Mines [2017] QCA 179

SUPREME COURT OF QUEENSLAND

CITATION: Burragubba & Ors v Minister for Natural Resources and Mines & Anor [2017] QCA 179

PARTIES: ADRIAN BURRAGUBBA (first appellant) LINDA BOBONGIE, LESTER BARNARD, DELIA KEMPPI AND LYNDELL TURBANE (second appellants) v MINISTER FOR NATURAL RESOURCES AND MINES (first respondent) ADANI MINING PTY LTD ACN 145 455 205 (second respondent)

FILE NO/S: Appeal No 13140 of 2016 / SC No 5770 of 2016

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2016] QSC 273 (Bond J)

DELIVERED ON: 22 August 2017

DELIVERED AT: Brisbane

HEARING DATE: 11 May 2017

JUDGES: Morrison and Philippides and McMurdo JJA

ORDERS: Appeal dismissed.Appellants pay to the respondents the costs of the appeal.

CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – PROCEDURES PROVIDED BY STATUTE – where the appellants were registered native title claimants under the Native Title Act 1993 (Cth) (the NTA) – where the National Native Title Tribunal (NNTT) had determined that the grant of mining leases over land the subject of the native title claim could be done as a ‘future act’ under the NTA – where the appellants sought judicial review of the NNTT determination – where the first respondent decided to grant three mining leases to the second respondent under the Mineral Resources Act 1989 (Qld) (the MRA) – where, in making the decision, the first respondent concluded that native title proceedings had been ‘resolved’, without consulting the appellants, although the judicial review proceedings were reserved pending judgment – where the MRA sets up a scheme for objections to the grant of a mining lease to be made within a limited time and for those objections to be considered by the Land Court – where the appellants had not lodged an objection under the MRA scheme – where the primary judge concluded that the MRA provided a comprehensive code for affording procedural fairness and had excluded the common law right to procedural fairness – whether the MRA excluded the common law right to procedural fairness – whether the first respondent was referring to the native title claim being ‘resolved’ in the sense of being extinguished or in the sense that the grant of a mining lease could be done as a ‘future act’ under the NTA – whether the first respondent was obliged to consult with the appellants before concluding that the grant of a mining lease could be done as a ‘future act’ under the NTA / Mineral Resources Act 1989 (Qld), s 234(1), s 260(1), s 265, s 267, s 269, s 271A / Native Title Act 1993 (Cth), s 24OA, s 38, s 233 / Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, applied / Burragubba & Anor v Minister for Natural Resources and Mines & Anor [2016] QSC 273, related / Kioa v West (1985) 159 CLR 550; [1985] HCA 81, applied / Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, considered / South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39, considered

COUNSEL: D M Yarrow for the first and second appellants / J D McKenna QC for the first respondent / D G Clothier QC, with S J Webster, for the second respondent

SOLICITORS: Just Us Lawyers for the first and second appellants / Crown Law for the first respondent / Ashurst Australia for the second respondent

MORRISON JA: I agree with the reasons of McMurdo JA and the orders proposed by his Honour.

PHILIPPIDES JA: I have read the reasons of McMurdo JA and agree with those reasons and the orders proposed.

McMURDO JA: The appellants are members of the Wangan and Jagalingou people, on whose behalf there is a registered claim for native title under the Native Title Act 1993 (Cth) (the NTA), which was filed in 2004.

On 3 April 2016, the first respondent, the Minister for Natural Resources and Mines, decided to grant three mining leases to the second respondent, Adani Mining Pty Ltd (“Adani”), under the Mineral Resources Act 1989 (Qld) (the MRA). The land which is the subject of the proposed leases is within the area over which the appellants claim a native title.

The appellants challenged that decision, by an originating application filed in the trial division, arguing that it should be set aside upon several grounds under the Judicial Review Act 1991 (Qld). Their application was dismissed by Bond J.¹ This is an appeal against that judgment, in which the appellants now argue only one ground for review of the Minister’s decision, namely that the decision was made in breach of the rules of natural justice,² because the Minister made his decision upon the basis of material going to the merit of their claim to native title without hearing from them on the question.

Bond J held that the Minister was not obliged to hear from the appellants on any question, because they had not objected to the grant of the leases under the regime prescribed by the MRA, which provides for any objections by interested parties to be made within a limited time and for those objections to be considered by the Land Court. He held that upon the proper interpretation of the MRA, in no circumstance would the Minister be obliged to hear from any party, as to why a mining lease should not be granted, if that party had not lodged an objection under that regime.

The appellants’ argument appears to accept that ordinarily, an interested person would not have a right to be consulted by the Minister on an issue which could have been, but was not, agitated by that person as an objector before the Land Court. But they say that the present case is different, because the issue here was not one which they could have been expected to raise as an objector in the Land Court and nor was it considered by that court. That issue, they say, was whether the native title which is claimed has been extinguished.

They argue that the Minister’s reasons for his decision show that he acted upon advice from within his department to the effect that the title claimed by them (and others) had been extinguished. As I will discuss, that is a misunderstanding of the Minister’s reasons. Instead, the Minister made no finding about extinguishment. I conclude that for that reason, the Minister was not obliged to hear from the appellants on the question and there was no denial of natural justice.

The MRA

Chapter 6, Part 1 of the MRA provides for mining leases. By s 234(1), Minister may grant to an eligible person a mining lease for the purposes of mining or an associated activity.

Although the legislation has subsequently been amended, at the relevant time it provided the following regime:³ A person who wished to apply for the grant of a mining lease was to first mark out the boundaries of the proposed land and had to then apply, within a certain time of doing so, for the grant of the lease.⁴ The application was to contain the information prescribed by s 245. It was first to be considered by the chief executive who, if satisfied that the applicant was an eligible person and that the requirements of the Act for that application had been met, was to prepare what was called a certificate of application.⁵ The chief executive was then to endorse on that certificate the number of the proposed mining lease and the date and time the application was lodged.⁶

The chief executive was then to give to the applicant what was called a certificate of public notice, which stipulated the content of the necessary public notification of the application.⁷ That certificate had to state, amongst other things, “the last objection day”, which had to be a day which was at least 20 business days after the certificate was given.⁸ The chief executive had to keep a copy of the certificate of public notice available for inspection until the last objection day.⁹

The nature and extent of the required publication of the application was prescribed by s 252B. The publication had to take place at least 15 business days before the last objection day (or within an approved shorter period).¹⁰ The applicant for the mining lease had to give the chief executive a statutory declaration as to the applicant’s compliance with the public notification requirements.¹¹

By s 260(1), an entity could, on or before the last objection day, lodge with the chief executive an objection in writing in the approved form. The objection had to state the grounds of objection and the facts and circumstances relied on by the objector in support of the grounds.¹² Each objector had to serve upon the applicant within the objection period a copy of its objection.¹³ An objection could be withdrawn by written notice from the objector, but a withdrawal of an objection could not be revoked.¹⁴

By s 265, if “a properly made objection” was made, the chief executive had to refer the application and all properly made objections to the Land Court for hearing. A properly made objection meant an objection lodged under s 260 that had not been withdrawn.¹⁵ The Land Court had to fix a date for the hearing and give written notice of the date to the chief executive, the applicant and each person who had lodged a properly made objection.¹⁶

By s 267, the Minister could at any time reject an application for the grant of a mining lease, notwithstanding that the application had not been the subject of a hearing by the Land Court, if the Minister was satisfied that the applicant had not complied with any requirement placed upon the applicant in respect of the application, or the Minister considered that it was not in the public interest for the mining lease to be granted. Otherwise an application referred to the Land Court had to be the subject of a hearing, including a hearing of all objections and all other matters that the Act required to be heard, considered and determined by the Land Court in respect of the application. By s 268(2), at the hearing, the Land Court was to take such evidence, hear such persons and inform itself in such manner as it considered appropriate in order to determine the relative merits of the application, objections and other matters. By s 268(3), the Land Court was not to entertain an objection to an application, any ground of objection or any evidence relating to any ground if the objection or ground was not contained in an objection that had been duly lodged.

Having conducted the hearing, the Land Court was to forward to the Minister any objections lodged, the evidence adduced at the hearing, including any exhibits, and the Land Court’s recommendation to the Minister.¹⁷ The Court’s recommendation had to be that the application be granted or rejected, in whole or in part. The Court could recommend that the mining lease be granted subject to such conditions as the Court considered appropriate. The matters to be considered by the Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, were prescribed by s 269(4). They included whether:

Any good reason had been shown for a refusal to grant the mining lease;¹⁸ and

Taking into consideration the current and prospective uses of that land, the proposed mining operation was an appropriate land use.¹⁹

The Land Court’s role was an advisory one. The decision as to whether a mining lease should be granted was made by the Minister, who by s 271, had to consider the Land Court’s recommendation and the matters which the Land Court had to consider according to s 269(4).

By s 271A, the Minister, after considering the criteria under s 271, could decide to grant a mining lease in whole or in part, reject the application or refer the matter to the Land Court to conduct a further hearing on the application generally or on specific matters raised by the Minister. If the matter was referred to the Land Court under s 271A, again the Land Court had to fix a date for the hearing and give notice to the chief executive, the applicant and each person who had lodged an objection to the application in accordance with s 260.²⁰

Events under the MRA

In November 2010, Adani applied for what was numbered Mining Lease 70441. In July 2013, it applied for Mining Leases numbered as 70505 and 70506.

There was one objection to the grant of the leases, which was lodged by a company called Land Services of Coast and Country Pty Ltd. No objections were lodged by any of the appellants. In September 2014 the mining lease applications and the objection were referred to the Land Court.

Following a hearing, the Land Court made its recommendations to the Minister in December 2015. The Court recommended that subject to the inclusion of certain conditions, the three mining leases be granted. The full terms of the Land Court’s recommendation were not included in the evidence in this proceeding. Some parts of the Court’s reasons for its recommendations were extracted within the Minister’s statement of reasons for his decision to grant the leases, but those parts are of no present relevance.

The Minister was provided by his Department with the relevant material for his decision on 18 March 2016. On 3 April 2016, the Minister decided to grant the leases. On 13 May 2016, the Minister provided his statement or reasons, which contained a list of the material with which he had been briefed by the Department.

The NTA

A grant of a mining lease by the State of Queensland is a “future act”, as defined in s 233 of the NTA. Unless a provision of the NTA provides otherwise, a future act is invalid to the extent that it affects native title.²¹ The possible bases for validity of a future act are listed in s 24AA of the NTA. By s 24AA(5), certain types of future acts, including the conferral by a State of mining rights,²² can be valid only if the requirements of what are called the “right to negotiate” provisions of the NTA are satisfied.

In a case such as the present, where there has been no determination of native title, but only a claim to native title, the obligations imposed upon a State and others by the right to negotiate provisions can be discharged by reference to native title claimants. Before a future act is done, the relevant Government party must give notice of the act, if there has been no determination of native title, to any registered native title claimant.²³ The native title claim which has been made by the appellant and others is a registered claim and the appellants’ names appear amongst those of the registered applicants.²⁴

By s 25(2), before the future act is done, the parties must then negotiate with a view to reach an agreement about the act. By s 25(3), if the parties do not reach an agreement, a determination about the act may instead be made by “an arbitral body” or a Minister. The arbitral body here was the National Native Title Tribunal (NNTT).²⁵

The negotiations in this case were unproductive and Adani (twice) applied to the NNTT for determinations in relation to the proposed leases. By s 38, the NNTT was to determine whether the future act, namely the grant of the mining lease, could be done, with or without conditions.

In May 2013, the NNTT determined that the future act constituted by the proposed mining lease 70441 could be done. (At that point in time, Adani had applied only for that lease.)

In April 2015, the NNTT determined that the acts constituted by the grant of proposed mining leases 70505 and 70506 could be done.

In May 2015, the first appellant in this case, Mr Burragubba, filed a proceeding in the Federal Court, seeking a review of the NNTT’s determination of April 2015 under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The respondents to that application were the State of Queensland, Adani and the NNTT (which did not actively participate in the proceeding). By s 15(1) of the ADJR Act, the making of an application to the Federal Court in relation to a decision does not affect the operation of the decision, subject to any stay or suspension ordered by the court or a judge of the court, which, it seems, was not sought by Mr Burragubba. Nevertheless, that proceeding under the ADJR Act had the potential to displace the operation of the NNTT’s determination of April 2015 and to thereby affect the validity of ML 70505 and ML 70506 to the extent that they affected any native title.

The hearing of the ADJR proceeding commenced in November 2015 and was completed in early February 2016. Judgment was reserved when the Minister decided to grant these mining leases in April 2016. As I will discuss, he referred to the currency of the ADJR proceeding in his statement of reasons.

The Federal Court delivered its judgment in August 2016, dismissing Mr Burragubba’s application.²⁶ Mr Burragubba filed a notice of appeal in September 2016. This Court was not informed of any outcome of that appeal.

The effect of the determinations of the NNTT would be that the mining leases would be valid to the extent that they affect native title. But the leases would not extinguish any native title; any inconsistency between the leases and the continued existence, enjoyment or exercise of native title rights and interests would result in those rights and interests continuing, but having no effect to the extent of the inconsistency.²⁷

The Minister’s reasons

At paragraph 27 of the Minister’s statement of reasons, he listed the “evidence or other material on which I made findings of fact”. That included the documents described as follows:

“Attachment 9: Documented Native Title Outcome for ML 70441

Attachment 10: Document Native Title Outcome for MLs 70505 and 70506”

The Minister wrote this about those documents:

“28.I note that the briefing note referred to attachment 9 as “Native title work decision for ML 70441”, which was a document dated 11 May 2013 (the ‘original attachment’). I did not see that document. I have been informed that due to an administrative error when the briefing pack was first compiled, the original attachment was included and referred to within the briefing note. After the briefing pack was provided to me, but before I considered it, departmental officers realised that the wrong document had been included as attachment 9. I am told that on 10 September 2015 a new survey plan for lot 662 on PH 1491 was registered with DNRM which changed the description of this land parcel to lot 662 on SP 106939. DNRM undertakes an assessment of all land covered by each mining lease application to establish whether native title has been extinguished and records this process on a form now called a “documented native title outcome”, but previously called a “native title work decision”. On 11 February 2016 a new documented native title outcome form was completed for ML 70441 to address the fact that the lot and plan reference had changed, and it is this form that was intended to be included in the briefing pack. Once it was realised that the old form had been mistakenly attached to the brief as the original attachment, it was removed from my briefing pack and the correct form was included.”

In that paragraph, the appellants’ argument emphasise the statement:

“DNRM undertakes an assessment of all land covered by each mining lease application to establish whether native title has been extinguished and records this process on a form now called a “documented native title outcome” ….”

The statement of reasons then set out the Minister’s findings of fact. Relevantly here, the Minister wrote:

“89.Native title has been resolved.

ML 70441 proceeded through the right to negotiate (RTN) process under the Native Title Act 1993 (Cth) (NTA), pt 2, div 3, subdiv P. On 7 November 2012, Adani lodged a Future Act Determination Application (FADA) in the National Native Title Tribunal (NNTT) pursuant to ss 35 and 75 of the NTA. On 7 May 2013, the NNTT determined that the grant of ML 70441 to Adani may be done. Accordingly, the grant of ML 70441 would be a valid future act: NTA, ss 28 and 38, and so I found that Native Title had been resolved for the grant of ML 70441.

On 8 April 2015, the NNTT determined that the grant of MLs 70505 and 70506 to Adani may be done. Accordingly, those grants would also be valid future acts, and so I found that Native Title had been resolved for MLs 70505 and 70506.”

(My emphasis.)

Later in the statement of reasons, the Minister referred to Mr Burragubba’s proceeding under the ADJR Act. The Minister wrote:

“112.I am aware that Adrian Burragubba has applied to the Federal Court for judicial review of the NNTT's 8 April 2015 determination that the grant of MLs 70505 and 70506 may be done. The Federal Court has reserved its decision.

That did not affect my ability to grant the mining lease. My intention on 29 October 2015 was to await the outcome of Mr Burragubba's judicial review application. It was not apparent at that time how long the judicial review proceeding would take. In the event, the application was heard on 23 and 24 November 2015 and there was a further hearing on 1 and 2 February 2016.

Ultimately I considered that the public interest in proceeding to a final decision outweighed any interest in awaiting the Court's decision and I therefore proceeded to make the final decision on the MLAs on 3 April 2016.”

It is convenient at this point to go to what was said by the primary judge about the effect of the findings at paragraphs 89 - 91 of the Minister’s reasons. Bond J referred to the documents each described as a “documented native title outcome”, noting that there was “no direct evidence as to the contents of those two attachments”. He said that it may be inferred that they reflected the work of departmental officers as the Minister had described at paragraph 28 of the reasons (as I have set out above).²⁸ Bond J further inferred that the contents of those attachments were the source of the Minister’s findings at paragraphs 89 – 91 of the statement of reasons.²⁹ With respect I am unable to agree with that inference.

In paragraphs 89 – 91, the Minister found that native title had been “resolved”. There was no finding that native title had been extinguished. The sense in which the Minister used the word “resolved”, in my view, is clear from his reference to the determinations by the NNTT. The question of native title had been resolved in that the NNTT had determined that the leases could be granted, notwithstanding the claimed native title. The determinations meant that the leases would be valid although they might interfere with the enjoyment or exercise of native title rights and interests. As I have discussed, the grant of the leases would not extinguish a native title.

The Minister’s subsequent reference to Mr Burragubba’s proceeding in the Federal Court is further confirmation the Minister had not found that any native title had been extinguished.

Therefore, there was no finding by the Minister that any native title had been extinguished. What the Minister said at paragraphs 89 – 91 provides no indication of the content of the documents to which he referred at paragraph 28. The content of those documents, other than that they said something about whether any native title had been extinguished, was not revealed.

The reasons of the primary judge

Before the primary judge, the appellants challenged the Minister’s decision upon several grounds, which Bond J summarised as follows:³⁰“first, whether the Minister's decision involved breach of the principles of natural justice because he did not give the applicants an opportunity to be heard before he made his decision;second, whether the Minister failed to take into account a relevant consideration, namely the potential adverse impacts of the grant of mining leases upon the native title rights or cultural interests asserted by the applicants; andthird, whether the Minister made any error of law or failed to take into account a relevant consideration when he decided: (1) that native title issues had been resolved by the two NNTT decisions; and (2) that he was not prepared to postpone making his decision to await the outcome of the attempt to set aside one of the NNTT decisions.”

The appellant’s argument that there had been a failure to comply with the requirements of natural justice, as it was made to Bond J, was summarised by the judge as follows:

“[58]The applicants complain that the Minister failed to comply with the principles of natural justice because –

the Minister was aware that –

the applicants asserted the existence of native title rights and interests in the area of ML 70505 or ML 70506 in the native title determination application in the Federal Court;

those alleged native title rights and interests were not considered in the Land Court;

Mr Burragubba's judicial review application had been made but not finalised,

but nevertheless concluded that “[native title] had been resolved” for ML 70505 and ML 70506 without giving the applicants an opportunity to address him on that conclusion or on the question whether he should postpone his decision to await the outcome of the judicial review application; and

the Minister had constructive knowledge of a document which articulated the particular nature of the native title rights and cultural interests of Mr Burragubba, which might be adversely affected by the grant of mining leases, and did not give him an opportunity to be heard on that question.”

Bond J said that as to the issues in (a) and (b), the Minister and Adani had submitted that “an insurmountable problem for the applicants is that under the MRA the only persons entitled to have their objections heard in relation to a grant of a mining lease are those who have notified their objection within a mandatory statutory time frame and then only in relation to the grounds of objection they have notified within the time frame”, so that the “legislative scheme operates to define and to limit both the persons to whom the obligation to afford natural justice might extend and the subject matter in relation to which they might be heard”³¹. After a thorough consideration of relevant provisions of the MRA, Bond J accepted that argument. He reasoned as follows:

“[67]I agree with the submission advanced by the Minister and Adani that the relevant terms of the MRA plainly reveal an intention to define and to limit both the persons to whom the obligation to afford natural justice might extend and the subject matter in relation to which they might be heard. That intention is revealed by the following features of the statutory scheme:

The mechanism for the creation and public notification of “the last objection day”.

The requirement that objectors must lodge their objection on or before “the last objection day” and must do so in a form which identifies the grounds of objection and the facts and circumstances relied on.

The absence of power in the chief executive to extend the last objection day, once it has been set.

If there are objections, there is a reference to the Land Court, notice of which is given only to the chief executive, the applicant and each person who duly lodged an objection.

The Land Court hearing gives a right to be heard to the applicant and to objectors, but the Land Court is constrained against entertaining an objection or any ground thereof or any evidence in relation to any ground, if the objection or ground is not contained in an objection that has been duly lodged.

The fact that an objection may be withdrawn but that the withdrawal may not be revoked.

The fact that there is a contemplation that one outcome of the Minister's exercise of power might be neither to grant or to reject but to refer an application back to the Land Court, but in that case, notice of the hearing is only given to the chief executive, the applicant and each person who duly lodged an objection.

[68]It is true that the constraint which s 268(3) imposes on the Land Court is not expressly imposed on the Minister. But I do not think that it could possibly be consistent with the intention of the legislature (especially bearing in mind the express statutory objective that the MRA would provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals) that the s 271 and 271A stage would operate in the way contended for by the applicants. On their theory, the intention of the legislature must have been that at the ministerial decision making stage any person whose interests were likely to be affected by the mining lease under consideration would be given an opportunity to deal with relevant matters adverse to their interests. And that would be so whether or not they had failed to lodge an objection before the last objection day. Such an approach would entirely defeat the structured and deliberately confined approach taken by the legislature. It would open up that stage to a process which was broader than the Land Court process. I think the legislature has revealed an intention inimical to the applicants having the right to be heard for which they contend

[69]It may well be that at the ministerial decision making stage and in consequence of taking new matters into account which were adverse to the interests of interested parties, the Minister might have to accord a further right to be heard to interested parties. However, the key to that proposition is “interested parties”. The evident intention of the legislature is that such a right would be limited to those who had already established themselves as interested parties via their compliance with the legislative mechanisms directed to that outcome. Support for that conclusion is found in the provisions of s 271A(l)(c) and s 272, which contemplate the possibility of the Minister referring the matter back to the Land Court, but provide only for notice of the hearing to be given to the chief executive, the applicant and each person who duly lodged an objection.

[70]The result is that in my view the fact that none of the applicants had given notice of objection before the last objection day is an insuperable obstacle to the applicants' contention that the Minister failed to comply with the principles of natural justice. Not having availed themselves of the opportunity to lodge an objection based on the impact of the proposed mining leases on the native title rights and cultural interests which they assert, they were not owed any further obligation of natural justice. For the same reason they were not entitled to be heard on the question of the timing of the Minister's decision.”

It is unnecessary to refer to the reasons of the primary judge for rejecting the other grounds which were then argued but not pursued in this appeal.

The arguments in this Court

The appellants’ case is that “despite the fact that no native title matters were in evidence in the Land Court,³² [the Minister] considered additional material about native title including matters relevant to the Appellants’ native title claim in the Federal Court”, without giving “the appellants any opportunity to comment on the native title matters he considered.”³³

The appellants argue that the primary judge erred in concluding that “the principles of natural justice were excluded in respect of the [Minister’s] exercise of the discretion to grant mining lease …”³⁴ Their argument acknowledges that the MRA provides a detailed scheme for the consideration of objections to the grant of mining leases, but maintains that this does not exclude the necessary provision of natural justice in respect of an issue which is “new”, in the sense of something which had not been considered by the Land Court.³⁵ The argument relies upon this passage from the judgment of Mason CJ in South Australia v O'Shea:³⁶

“The scheme for which s 77a provides is not unfamiliar. It allows a place for the presentation of the offender’s case – before the Board when it is considering whether it should make a recommendation for release. There are many illustrations of this legislative model which entails the holding of an inquiry by a body authorized to make a recommendation to a Board or Minister which may make a decision rejecting the recommendation without conducting any further inquiry: see Taylor v Public Service Board (NSW); Kioa v West; Minister for Aboriginal Affairs v Peko-Wallsend Ltd. The hearing before the recommending body provides a sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirely, entails procedural fairness. If the decision-maker intends to take account of some new matter, not appearing in the report of the recommending body, and the party has had no opportunity of dealing with it, the decision-maker should give him that opportunity: Peko-Wallsend.”

(Footnotes omitted)

The “new” issue, which the appellants say mattered for the Minister’s decision, was one said to have arisen from the documents described as attachments 9 and 10 and described in the Minister’s statement of reasons at paragraph 28.³⁷ It is submitted that because this material was “adverse to the appellants”, they ought to have been given an opportunity to address it. The argument fastens upon the primary judge’s inference that the Minister’s finding that “native title has been resolved” had derived from information within those documents.

The respondents’ submissions seek to support the reasoning of the primary judge. They accept that the Minister had to accord natural justice, but only to a person who had made a properly made objection under the MRA and then only in relation to a ground of that objection.

Consideration of the arguments

Subject to the terms of the relevant statute, the exercise of an administrative power under the statute will be subject to a requirement to act with natural justice, including with procedural fairness. In Kioa v West,³⁸ Mason J said:

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”

In the same case, Brennan J said:³⁹

“At base, the jurisdiction of a court judicially to review a decision made in the exercise of a statutory power on the ground that the decision-maker has not observed the principles of natural justice depends upon the legislature’s intention that observance of the principles of natural justice is a condition of the valid exercise of the power. That is clear enough when the condition is expressed; it is seen more dimly when the condition is implied, for then the condition is attributed by judicial construction of the statute. In either case, the statute determines whether the exercise of power is conditioned on the observance of the principles of natural justice. The statute is construed, as all statutes are construed, against a background of common law notions of justice and fairness and, when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature”: Cooper v Wandsworth Board of Works. The true intention of the legislature is thus ascertained*.* When the legislature creates certain powers, the courts presume that the legislature intends the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention: cf. Twist v Randwick Municipal Council; Heatley v Tasmanian Racing and Gaming Commission.”

(Footnotes omitted)

The present statute, the MRA, does not express an intention to exclude “common law notions of justice and fairness”.⁴⁰ The question is whether they are necessarily excluded by implication. The statutory prescription of a process of the making of an application, the public notification of the application, the making of objections, the consideration and recommendation by the Land Court and the Minister’s consideration of prescribed matters could be described as a detailed procedural code, which is intended to serve purposes of expedition, fairness and transparency. But the scheme is not irreconcilable with the usually implied constraint of the provision of procedural fairness.

In Kioa v West, Mason J said that the requirement of procedural fairness could be displaced only by “a clear manifestation of a contrary statutory intention.”⁴¹ And, in Annetts v McCann,⁴² Mason CJ, Deane and McHugh JJ said that “the rules of natural justice regulate the exercise of [the power of a public official] unless they are excluded by plain words of necessary intendment.” As for the relevance of a procedural code for the disposition of an application for a mining lease, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah,⁴³ Gleeson CJ and Hayne J said, by reference to the legislative scheme in that case:

“[T]here is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements of natural justice. … The description of the provisions as a code of procedure is significant, but its significance should not be overstated.”

I am not persuaded that the requirement for procedural fairness has been excluded or confined, as the respondents argue and as Bond J concluded. It must be accepted, as ultimately the appellants’ argument does, that the terms of the MRA affect the content of the duty to act with procedural fairness. Thus, it may be accepted that the Minister would not be bound to ask an interested party for a submission which that party could have made by a “properly made objection”. That is not because the MRA provides that the Minister need not act with procedural fairness; rather it is because the MRA itself provides the means by which, ordinarily, procedural fairness can be afforded to a person who is opposed to the grant of the lease. While the requirements of the legislative scheme “clearly inform the obligation to accord procedural fairness, they do not displace it.”⁴⁴

Conceivably, circumstances could arise when according to notions of justice and fairness, the Minister should hear from an affected party. For example, the relevant issue might arise from facts and circumstances arising only after the period for the making of an objection under s 260. That new issue might be raised, as the appellants argue that it was raised in this case, by the provision to the Minister of evidence which was not before the Land Court and which was relevant to an issue which was not raised by any party before that Court. More particularly, take an issue of whether any native title over the subject land had been extinguished: that was not a question considered by the Land Court and nor would the appellants, as potential objectors under the MRA, have anticipated that it would be an issue. It would not have been expected that the Land Court would embark on an inquiry as to the existence and content of the native title which was claimed by the appellants. They are questions to be decided in another forum, in the hearing of the registered claim for native title filed on behalf of the appellant and others. Nor was it for the Land Court to decide, or to recommend a decision, on the question of whether the native title rights and interests should be effectively suspended by the grant of the leases: that was to be determined (as it was) by the NNTT under the NTA. If the Minister in this case did intend to grant the leases, notwithstanding the claim for native title, because he considered that any title had been extinguished, very arguably the Minister would have been required to ask the registered claimants (including the appellants) for a submission on the issue. The MRA contains no provision which would prevent or excuse the Minister from doing so.

Therefore I respectfully disagree with the conclusion of the primary judge that the appellants were not entitled to be given natural justice because they had not presented an objection under s 260 of the MRA.

Nevertheless, it remains for the appellants to establish that they were denied natural justice by not being asked for a submission.

An essential element of the appellants’ argument is that the Minister should have heard from them, because he was considering “new information”, being something “not arising from the Land Court process”.⁴⁵ However, the question cannot be decided at that level of abstraction. It is necessary to have an understanding of the content and ultimate relevance of that information to assess whether, in fairness to the appellants, the Minster should have asked them about it. As I have said, the content of the information within the departmental documents is unknown and was not proved to have been adverse to the appellants’ interest or in any way influential. The documents may have advised the Minister that native title had been extinguished, that it had not been extinguished, or that no conclusion could be made one way or the other.

The fact that the content of attachments 9 and 10 remains unknown can be explained by the way in which the appellants’ case was conducted before the primary judge. The relevant ground for review of the Minister’s decision, as set out in the amended application, was that the Minister had breached the rules of natural justice by making the decision knowing that:

“(a)Native title issues had not been resolved;

The decision of the Federal Court of Australia had not been delivered;

an ILUA process⁴⁶ was underway;

by reason of each (a), (b) and (c) and the outcomes contended for by the applicants in those matters, an outcome on any of those matters of the type sought by the applicants would affect the decision to grant the MLs;

further or in the alternative to (d), the decision to grant the MLs would adversely affect the native title rights and interests and traditional culture of the Wangan and Jagalingou people in the circumstances (a), (b) and/or (c).”

And in the appellants’ written submissions to the primary judge, the argument that there was a denial of natural justice was expressed as follows:

“Although the First Respondent knew the First Applicant's judicial review of the NNTT’s 8 April decision was not finalised, he concluded that ''[native title] had been resolved" for ML 70505 and ML 70506 without giving the Applicants an opportunity to address him on this conclusion. The First Respondent's failure to do so was a failure to comply with the principles of natural justice. The 3 April decision should therefore be set aside.”

Similarly, the written submissions, in reply, which were made to the primary judge, relevantly complained that:⁴⁷

“The judicial review application of the first Applicant was not considered by the Land Court and was considered by [the Minister] and was therefore a "new matter, not appearing in the report of the recommending body" as described by Mason CJ⁴⁸ - the First Applicant should have been given an opportunity to address the Minister on that new matter.”

(Emphasis added.)

Throughout the hearing before the primary judge, it seems that nothing was said about attachments 9 and 10 until oral submissions, in reply, by the appellants’ counsel.⁴⁹

It is apparent then why the content of attachments 9 and 10 was not proved at the hearing before the primary judge. The complaint which was then made by the appellants, although not in this Court, was not that the Minister had denied them natural justice by considering those documents; rather, it was that he had decided to grant the leases, notwithstanding the judgment being reserved in the ADJR proceeding, without giving the appellants an opportunity to say whether he should do so.

That argument which was made at the trial would have been unpersuasive had it been made in this Court. In the ADJR proceeding, the State of Queensland was an active respondent to Mr Burragubba’s application. The hearing of that proceeding had concluded. What more could Mr Burragubba have had to say about the merits of that proceeding and therefore, about the prospects of the Tribunal’s determination being set aside? Evidently the Minister made a considered assessment of those prospects, in deciding not to delay his decision until that proceeding had been decided. An obligation to act fairly did not require the Minister to call upon Mr Burragubba to make that argument again. And as to the timing of the Minister’s decision, Mr Burragubba (the only applicant in the ADJR proceeding) had not sought any stay on suspension of the NNTT’s determination.

To return to the appellants’ present argument, its immediate difficulty is that the content of the “new” material, attachments 9 and 10, is unknown. On the balance of probabilities, it cannot be inferred that it was adverse to the appellants. Nor, more generally, can it be inferred that it mattered to the Minister’s decision. The contrary is indicated by the absence of any significance being attributed to it in the Minister’s statement of reasons. The essential premise of the appellants’ argument is not established and consequently it cannot be accepted. The appellants failed to prove that there were facts or circumstances which required the Minister, acting fairly, to consult them before making his decision.

Conclusion and order

For these reasons I have concluded that the appellants failed to prove that there is a denial of natural justice in the making of this decision. That being the only ground pursued in this appeal, I would order that the appeal be dismissed and that the appellants pay to the respondents the costs of the appeal.

Footnotes

1. Burragubba & Anor v Minister for Natural Resources and Mines & Anor [2016] QSC 273. ↩

2. s 20(2)(a) of the Judicial Review Act 1991 (Qld). ↩

3. MRA as at 24 March 2016. ↩

4. s 241, s 243 of the MRA. ↩

5. s 252(1) of the MRA. ↩

6. s 252(2) of the MRA. ↩

7. s 252A of the MRA. ↩

8. s 252A(3), (4) of the MRA. ↩

9. s 252A(5) of the MRA. ↩

10. s 252B(5) of the MRA. ↩

11. s 252C of the MRA. ↩

12. s 260(3) of the MRA. ↩

13. s 260(4) of the MRA. ↩

14. s 261 of the MRA. ↩