Cheedy v State of Western Australia

Background 5 On 9 July 2003, the appellant, acting on behalf of the Yindjibarndi People, lodged a Native Title Determination Application (the Yindjibarndi #1 Application) in the Court. 6 The Yindjibarndi #1 Application covers 2,778 square kilometres of land and waters (the Yindjibarndi #1 Area) including areas of unallocated Crown land in which, at the time when the Yindjibarndi #1 Application was filed, there was no previous history of mining or exploration activity. Since then, FMG applied under the Mining Act 1978 (WA) for 20 Exploration Licences, 4 Mining Leases and 9 Miscellaneous Licences in the Yindjibarndi #1 Area. Collectively, FMG's mining tenement applications cover in excess of 2500 km² of the Yindjibarndi #1 Area. 7 To date, only three of the mining tenements applied for by FMG have been granted: Exploration Licences E47/1333, E47/1334 and E47/1447. The last two of these were granted on 2 June 2007; and, the first, E47/1333, was granted on 28 July 2007. 8 The stay applications concern three mining lease applications made by FMG in late 2007: M47/1409, M47/1411 and M47/1413 (Mining Leases). These Mining Leases, if granted, will allow FMG to create its proposed Solomon Project. 9 During 2008, negotiations occurred between FMG and the appellant whereby, pursuant to the future act provisions of the Native Title Act 1993 (NTA), FMG sought to obtain the consent of the Yindjibarndi People to the grant of the Mining Leases. However, no agreement was reached within the six month negotiation period allowed for under the NTA. FMG then applied to the National Native Title Tribunal (Tribunal), under s 35 of the NTA, for determinations which would allow the Mining Leases to be granted without the consent of the Yindjibarndi People. 10 Both applications were successful. The Tribunal's determination in FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 91 was that: … the act, namely the grant of mining lease M47/1413 to FMG Pilbara Pty Ltd, may be done, subject to the imposition of the extra conditions listed in document GVP16 and set out in paragraph [32] [of its Reasons]. 11 Paragraph [32] of the Tribunal's Reasons set out the following conditions: 1. Any right of the Native Title Party (as defined in Sections 29 and 30 of the Native Title Act (1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those part of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities. 2. If the grantee party gives a notice to the Aboriginal Cultural Material Committee under Section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the Native Title Party. 3. Where the grantee party submits to State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the Native Title Party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes. 4. Upon assignment of the mining lease the assignee shall be bound by these conditions. 12 The Tribunal's determination in FMG Pilbara Pty Ltd/Witawari Guruma Aboriginal Corporation/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 99 was that: The acts, namely the grant of mining leases M47/1409 and M47/1411 to FMG Pilbara Pty Ltd may be done subject to the imposition of the extra conditions set out in paragraph [18] (of its Reasons). 13 The conditions in para [18] of the Tribunal's Reasons were, in effect, the same as those set out under para [11] above. 14 The appellant appealed to the Court, pursuant to s 169(1) of the NTA, for orders setting aside those determinations. 15 Those appeals were each dismissed, at first instance by the primary judge: Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690. The appellant then instituted appeals to the Full Court, pursuant to s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) from the orders of the primary judge. 16 The first issue in the appeals concerns the question of whether the Tribunal properly took into account the protection afforded to the religious beliefs, practices and observances of the Yindjibarndi People, under both s 116 of the Commonwealth Constitution (the Constitution) and the International Covenant on Civil and Political Rights when determining whether, and if so, under what conditions, the Mining Leases might be granted by the first respondent to FMG. 17 The second issue concerns the question of whether the Tribunal, by its determinations, under s 38 of the NTA, effected a compulsory acquisition of rights and interests upon terms which, having regard to the sacred and religious character of those rights and interests, was unjust and contrary to section 51(xxxi) of the Constitution, since what was acquired cannot be replaced, nor readily compensated for, by the payment of money. 18 The institution of the appeals from the Tribunal in WAD 161 of 2009 and WAD 168 of 2009 pursuant to s 169 of the NTA did not affect the operation of the determinations made by the Tribunal: s 170(1) of the NTA. 19 Likewise, the institution of these appeals (WAD 192 and 193 of 2010) does not operate as a stay of execution of the orders made by the primary judge: Order 52 rule 17(1) Federal Court Rules (FCR). 20 The appeals came before the primary judge pursuant to s 169(5) of the NTA which provides: (5) The Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court. 21 The jurisdiction conferred upon this Court by s 169(5) of the NTA is original jurisdiction even when exercised by a Full Court: Hicks v Western Australia [2002] FCA 1490. 22 Contrary to the submission of the appellants, the Full Court is exercising appellate and not original jurisdiction in these appeals. This is not a case where the appeals from the Tribunal's determinations were the subject of a direction by the Chief Justice under O 78 r 30 FCR that they should be heard by a Full Court. Had that been the case then the Full Court would have been exercising original jurisdiction. Order 78 r 30 FCR is contained within Division 5 which applies to appeals brought under s 169 of the NTA. 23 It is trite that appeals such as these brought pursuant to s 24 of the Federal Court Act are appeals by way of rehearing: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211. 24 The appellants submit that because the appeals are by way of re-hearing that it follows, for the purposes of the rehearing of appeals from the determinations made by the Tribunal, that the Court has the same power to stay those determinations as it has in respect of first instance appeals. It follows, the appellant submits, that the Full Court has power under s 170(2) of the NTA to stay the judgment of the primary judge dismissing the appeals, so that the appeals may be reheard by the Full Court. 25 I do not agree. Section 170(2) provides: If an appeal is instituted in the Court from a decision or determination of the Tribunal, the Court or a Judge of the Court may make such order staying or otherwise affecting the operation or implementation of either or both of the following: (a) the decision or determination of the Tribunal or a part of that decision or determination; and (b) the decision or determination to which the proceeding before the Tribunal related or a part of that decision or determination; as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. 26 Any power to stay the determinations under s 170(2), if such were possible, resided with the primary judge for it was before him that the 'appeal(s)' referred to in s 170(2) were brought under s 169(5) of the NTA. 27 The power of the Full Court on an appeal brought pursuant to s 24 of the Federal Court Act to stay judgment of a single judge of the Court is found in O 52 r 17 FCR. No doubt s 23 of the Federal Court of Australia Act is also a source of power. It may also be sourced in the inherent or implied power of the Court: Williams v Minister for the Environment & Heritage (2003) 199 ALR 352 at [16]. 28 The issue then is whether such a power is capable of exercise in this case. 29 In my opinion, the orders of the primary judge that each of the appeals be dismissed is incapable of being stayed. 30 Order 52 r 17 FCR is in these terms: Stay (1) An appeal to the Court shall not: (a) operate as a stay of execution or of proceedings under the judgment appealed from; or (b) invalidate any intermediate act or proceedings; except so far as the Court or a Judge or the court below may direct. (2) The Court may vary or vacate any direction of the Court or the court below referred to in subrule (1). (3) An application for a direction of the Court or a Judge under subrule (1) shall be made to the Court or a Judge by motion upon notice, and may be made whether or not a similar application has been made to the court below. An application for a direction under subrule (2) shall be made to the Court by motion upon notice, and may be made whether or not a similar application has been made to the court below. 31 The order made by the primary judge in each appeal was that the appeal be dismissed. Such an order is not executory and in my opinion cannot be stayed. There is, as French J, as his Honour then was, observed in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [11]: … nothing upon which a stay of execution … could operate. In that case the proceeding before the primary judge had been dismissed but, when the matter came on before French J, no appeal had yet been filed. Accordingly, his Honour's observation was directly referrable to O 37 r 10 FCR which provides that the Court may stay execution of a judgment or order. That distinction notwithstanding, his Honour's observation, in my opinion, is apt to the power conferred under O 52 r 17 FCR. 32 Each motion also seeks orders staying the Tribunal's determinations. Again, I am of the opinion, assuming, as I do, power in the Full Court to make orders, including stay orders, in relation to determinations of the Tribunal, that such orders are not apt in relation to the particular determinations of the Tribunal. The determinations are permissive in nature. They do not require that anything be done by the appellant or by FMG. 33 The concern of the appellant is that, unless a stay is granted, the three Mining Leases will likely be granted to FMG which, in effect, would render the appeals nugatory. I am not immediately persuaded that this is the case. Were the appellant successful in his appeals he could, at least, seek by order of the Court to restrain FMG from exercising any purported rights under the Mining Leases if they had been granted. Other relief may be available. 34 The appropriate course in a case such as this would have been for the appellant to approach the Court for orders under s 23 or s 25(2B)(ab) of the Federal Court Act restraining FMG from taking any steps to obtain the Mining Leases in question pending disposition of these appeals: Stirling Harbour Services at [11]. That would, ordinarily, require the appellant to provide undertakings as to damages. I say nothing as to the merits of such an application had it been made. 35 The appellant was invited both by senior counsel for FMG and by the Court to pursue such a course. Indeed, FMG indicated its preparedness upon the usual undertaking as to damages being given by the appellant, in each case, to treat the motions as embracing such an application. FMG's written submissions were, in part, directed to such a possibility. However, the appellant's counsel steadfastly declined to take up this invitation as, of course, he was entitled. 36 For these reasons I would dismiss each of the appellant's motions. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.