The present application
13 The applicants claim that the primary judge erred in applying s 31A. The alleged error appears to be related to his Honour's substantive findings rather than to his approach to the requirements of the section. In so far as the application of s 31A is concerned, his Honour referred to the comment in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [25] to the effect that s 31A softened the test of a successful application for summary judgment, however he also noted that the Full Court advocated, at [28], the adoption of "a generally cautious approach" in exercising the power granted under the section. There is nothing in this approach that would suggest error.
14 Turning to the substantive issues, senior counsel for the applicants, Mr McCarthy, submitted that, having found that the proceeding had its origin in a difference of opinion between the applicants and the first and third respondents, his Honour erred in finding that the applicants' claim was premised on the proposition that the grant of a petroleum lease would be a future act. The point is made in the applicants' written submissions which state: "What the applicants seek is the assistance of the Court to resolve a dispute between parties" involved in the statutory process of negotiating an indigenous land use agreement. The applicants' position as it was put in oral submissions can be summarised as follows:
(a) the NTA provides a statutory process for the negotiation of ILUAs;
(b) in the course of the negotiation for an ILUA between the applicants and the first and third respondents, the respondents have made an assertion to the effect that the grant of a petroleum lease pursuant to ATP 259 would be a pre-existing right-based act as defined in s 24IB;
(c) the assertion in (b) is incorrect and, consequently, the applicants have a right to a declaration to that effect;
(d) the assertion of an incorrect position in the ILUA negotiations gives rise to a matter under s 213 of the NTA and thus enlivens the jurisdiction of this Court.
15 Mr McCarthy submitted that this was an arguable analysis whether or not it would ultimately prove to be correct. Consequently the applicants' claims should not have been summarily dismissed. He further submitted that as Lardil had nothing to do with ILUAs it should have been distinguished and the applicants allowed the opportunity to put their submissions at trial.
16 As senior counsel for the second respondent, Mr Flanagan, was at pains to point out, the primary judge was considering an application under s 31A which must be determined on the case as pleaded. The applicants' submissions summarised in [14] above attempt to distinguish Lardil by characterising their case in terms quite different from the way in which his Honour characterised it. They deny that their case was premised on the proposition that the grant of a petroleum lease pursuant to ATP 259 is a future act, however this position is inconsistent with the case as pleaded. This is clear from clauses 5 and 6 of the Amended Statement of Claim which are as follows:
5. In the course of negotiations 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 the grant of a petroleum lease under the Petroleum Act is a pre-existing rights based act … 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.
6. The applicants have maintained that they are entitled to the right to negotiate under the NTA in respect of the grant of a 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.
17 Clauses 5 and 6 make clear that the declarations sought by the applicants are directed to establishing that the grant of a petroleum lease does not fall within the subcategory of future acts that is exempted from the right to negotiate; in other words that it is not a pre-existing rights based act. A declaration that the grant does not fall into that particular subcategory would make no sense if it were not premised on the grant being a future act. It is clear that the application for injunctive relief is also based on the same premise as it too is directed to restraining an act that would interfere with the applicants' right to negotiate. The applicants' submission as to how their case should be characterised cannot be accepted. In our view the learned primary judge was correct in finding that the application was premised on the grant of a petroleum lease being a future act.
18 It is clear however, that on the applicants' pleadings, they cannot establish the premise of their application. A future act, by definition, is one that either validly affects native title, or is invalid because of native title and would affect native title if it were valid; NTA, s 233. The applicants have not claimed that they hold any native title rights; they rely solely on their status as registered native title claimants. This is precisely the position that pertained in Lardil.
19 In Lardil also, the claim of the appellants was presented solely on the basis that they were registered native title claimants over certain sea areas in the Gulf of Carpentaria however no determination of their claim had been made. Pasminco Century Mine Ltd was granted an authority to establish a buoy mooring in the area subject to the appellants' claim. The appellants had sought declarations and injunctions related to the buoy mooring primarily on the basis of non-compliance with the future act provisions of the NTA. French J, at [59], referred to the appellants' submission that the definition of future act in s 233 of the NTA "could be understood as encompassing an act which "may" affect native title". His Honour's response was that "this would require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act" and which "is not justified by the language of a statute"; see also [70] per Merkel J and [114] per Dowsett J.
20 The applicants have submitted that Lardil should be distinguished because, unlike Lardil, the present case is not one in which the applicants seek to enforce procedural rights under Division 3 of Part 2 of the NTA. The applicants' submission misconceives the relevance of Lardil to the decision of the primary judge. Lardil is authority for a proposition that a future act is one that affects native title rights not one that might affect native title rights. The applicants do not contend that Lardil is wrongly decided. It follows that the decision in Lardil is not distinguishable; in fact it is directly in point. Consequently, the decision that status as registered native title claimants could not support the appellants' claims in Lardil applies equally to the present circumstances. As the learned primary judge noted at [30], the relief sought by the applicants in this case is final relief in a proceeding where no claim for native title is advanced. His Honour pointed out that given the definition of "future act" in the NTA, the successful vindication of a native title claim, not status as registered native title claimants, is "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".
21 For these reasons we are satisfied that his Honour's decision is not attended with sufficient doubt to warrant granting leave to appeal. This is sufficient to dispose of the present application however, in deference to the submissions of counsel for both parties, we shall also make some observations on the issues of jurisdiction and standing.