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[1999] FCA 1460
Federal Court of Australia
1999-10-22
Kiefel J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 I have previously determined that the applicants were denied an opportunity to meaningful comment on permits which might be granted by the respondent Authority, because of the Authority's failure to provide "a clear description of the area that may be affected by the act or class of acts", as required by subs 8(3) Native Title (Notices) Determination (see [1999] FCA 1070)). 2 Section 24HA(7) Native Title Act 1993 provides with respect to "future acts" such as the grant of permits here, to use the Great Barrier Reef Marine Park ("GBRMP") for various activities, that registered native title claimants are to be notified of any intended permit in the manner provided for in the Determination and that they be given an opportunity to comment. The applicants are registered claimants. The sea claim component of their claim (of about 840 square kilometres) lies offshore Cairns, and incorporates an island, or islands - Fitzroy, Little Fitzroy Island and others- and some named and unnamed reefs and cays. Not all of the islands lie within the Park. For present purposes the claim principally has regard to waters, reefs and cays. The native title rights referred to include hunting and fishing and extend to the care and custody of the area. 3 Subsection 8(3) of the Determination provides: 4 Subsection 8(3) of the Native Title (Notices) Determination provides: "8 Notice of acts … (3) A notice under a provision mentioned in paragraph (1)(a), (b), (c), (d), (e), (f), (g) or (h) must include: (a) a clear description of the area that may be affected by the act or class of acts; and (b) a description of the general nature of the act or class of acts; and (c) a statement that the person to be notified must be given an opportunity to comment on the act or class of acts within a period specified in the notice; and (d) the name and postal address of the person to whom comment must be given." 5 In my judgment I said: "Consistent with the statutory purpose referred to above, it seems to me that the Determination recognises that native title claimants will need to be alerted to that part of their claim area to which the proposed licence or permission relates, so that they might make a meaningful comment upon its significance or otherwise and as to whether the rights they claim will be impacted upon. "The area that may be affected" in my view refers to that part of the native title claim area and requires it to be identified. In the case of the notices here which refer to all zones and locations within the Far Northern and Cairns Sections of the Park, all that the applicants are effectively advised is that the whole of their sea claim area, and areas beyond it, are involved. With respect to the smaller number which do specify some particular locations, it is possible that they identify points within the sea claim area. The matter has not been addressed. In any event, in their specification of areas outside the claim area they do not comply with the requirements of the Determination. I add that it would seem to me that a mere nomination of points or areas referred to in an application for permit, which are located in the sea claim area may not in all cases be sufficient. The terms of the Determination would require the respondent to consider what areas within the sea claim area may be affected, wherever the activities are conducted. The respondent submitted that it was in most cases, but particularly with respect to applications involving tourist operations, unable to be more specific about the intended route of vessels or where they might moor, for example. Such detail, it was said, was absent from the applications, which asked for permission generally to roam over and between zones. The evidence before me does not disclose what information was provided to the respondent with respect to the permits in question. The guide published by it with respect to the permit process does not list the statutory requirements, although some of the applicants for permit whose affidavits were relied upon appear to accept that they need to identify particular points. The guide explains that the permit once issued "specifies the activities which are permitted, the locations where they may be conducted and any conditions which apply". It is difficult to accept that the respondent could fulfil its statutory functions, which include making an assessment of the impact of any proposed activity upon the Reef area, without the detailed information referred to. Indeed, it would seem to me that an applicant for a permit would not comply with regs 13AC(2)(f), (g) and (i) if it were not provided. In that event, the respondent could not of course grant a permit." 6 A question has arisen as to whether the re-notifications provided by the Authority amount to compliance with my following order, that it provide to the applicants "a clear description of any part of the sea claim area that may be affected by the grant of a permit". The procedure adopted has been, rather neutrally, to seek directions as to whether further compliance is required. I am, at the same time, conscious of the possibility that the same questions upon which I have pronounced might, by this means, be revisited.
The Application Forms 7 The type of permit which has generated most notifications in this area is one utilised by tourist operators and which permits them access and the undertaking of activities over all zones and locations within the Cairns section of the Park, the section relevant here (called a "roving permit" in submissions). The other which also appears in the sample applications and notifications is a permit which refers to specific locations, and refers to locations which the applicant intends to visit frequently. Other types of permits, such as those for scientific research, have not been used in this exercise. That particular type of application, as previous notifications disclose, often identify a particular reef or other area and are less likely to cause dispute in the identification of the area in the sea claim area. 8 Neither the Great Barrier Reef Marine Park Act 1975 (Cth) ("GBRMP" Act) nor the regulations refer to permits such as "all zones and locations" or "specific locations". They do refer to areas where certain activities are not to be undertaken, or are to be undertaken only at particular times of year. These are incorporated into the body of the permits. In accordance with what I have previously said concerning the information which the GBRMP Act requires, it might be thought doubtful whether the application forms, to which I shall shortly refer, satisfy the statutory obligations by reference to the information they require of the applicant for permit. The Authority submits that the validity or otherwise of its acts in that respect has no relevance to the question presently before the Court, which is whether sufficient identification of the areas which may be affected has been provided. Importantly, it concedes that were it found that insufficient information had been provided, it would not contend that it was unable to obtain further information from intending applicants, whether by use of its powers under the GBRMP Act or otherwise. Nevertheless, submissions were directed to the information provided in, and the nature of, the applications and it is necessary to turn to them. 9 The application for permit form adopts, in part, a tick-box style. It asks the applicant to nominate, in the first place, which Section/s they wish to operate in. Some may choose more than one. Then they are asked "What locations do you wish to operate at or access?" Two choices are given: "All Zones and Locations with the standard exclusions" and "Specific Locations" 10 In the event that "All Zones and Locations" (I shall now shorten this reference to "All Zones") is ticked, the applicant then proceeds to the question whether moorings are to be installed at any location and then to the question concerning the activities that they may wish to include on the permit, and which range from swimming, scuba diving, fishing of various kinds, motorised sports, non-tourist commercial charters and installation of structures and "other". I have not listed all of them. Whether or not moorings have been specified at some locations in the sea claim area on other "all zones" applications, but not notified to the applicants, is not clear. No moorings were proposed in the particular application under consideration. Details of the vessel to be used are then provided. If "specific locations" is the answer, the applicant is obliged to complete details of the location and advise how often access is desired to it. 11 Two particular examples of each of these types of permit were referred to in argument by the Authority. In G8899, an "All Zones" permit was sought. The activities listed were swimming, scuba diving, fishing and non-tourist commercial charters. The notification given, originally, was: "General nature of Activities Proposed Conduct of a tourist program - Activities being snorkelling, SCUBA diving and fishing, using a vessel … Any other purpose - the provision of transport and other services to persons who are not tourists undertaking photography, filming, sound recording, research and/or servicing of facilities, using a vessel …" And "Area That May Be Affected By Activities Proposed The permission applies to all zones and locations within the Far Northern, Cairns, and Central and Sections of the Great Barrier Reef Marine Park EXCEPT Preservation Zones, Scientific Research Zones and Designated Areas." 12 The re-notification, following my order, referred to the activities in the same way, but provided this information with respect to the area that may be affected: "The permission, if granted, may apply to the whole of the Claim Area that is located within the Great Barrier Reef Marine Park except for Designated Areas as prescribed by Section 14 of Part 4 of the Cairns Section Zoning Plan." 13 It is this type of response of which of the applicants complain. I should add that the applicants response to the re-notifications went much further in their demands than my order could have required but Mr Rangiah, appearing for them, does not pursue the further particulars required in the response. 14 The application for a specific location permit used as an example was G8771. It referred to the Cairns Section and identified eight locations to be accessed daily and a mooring in each location was requested. The locations included Moore Reef, which lies within the sea claim area. The activities specified were: swimming, scuba diving and fish feeding. 15 The notification and re-notification referred only to the installation and conduct of the mooring as an activity, but any error in that respect is not the concern on this application. The original notification advised that the permission sought applied to all eight locations, naming them. The re-notifications narrowed it: "The permission, if granted, may apply to Moore Reef located within the Claim Area."
Submissions 16 The applicants submitted that a re-notification that the whole of the sea claim area may be affected by the "All Zones" permit continued to deny the them the opportunity to make meaningful comment. It was submitted that the Authority should in such cases identify any reef, shoal, cay or island in the claim area that may be affected by the proposed permissions. It is no answer, it is submitted, for the respondent to say that the descriptions cannot be more precise because an "all zones and locations permit" has been chosen. That does not diminish its obligations to provide a clear description. It should, if necessary, require further information from the applicants. I did not understand the applicants to suggest that the notification of Moore Reef, as an area which may be affected if a permit is granted on the application numbered G8771, was deficient. There was no material before me to permit a conclusion that the nomination of such a location was too imprecise, when the activities associated with it were properly identified. 17 I had also understood the Authority's argument to rely upon limitations placed upon it by the extent of the information provided with respect to the "all zones and locations" applications. I was however assured that that was not the position adopted by the Authority. As earlier mentioned, the Authority did not suggest that it was unable to obtain further information, although it would appear that it has not attempted to do so, despite the terms of my earlier reasons for judgment. It was confirmed by Senior Counsel for the Authority that it was not in doubt about the terms of my order and what it required; although it was suggested, in the event that I found non-compliance, that I might indicate what needs to be done. 18 The Authority's central submission was that what had been provided amounted to a clear description of the area of the sea claim which may be affected. In this respect it submitted that no general rule could be laid down as to what would amount to a proper or sufficient description in any case. It submitted that regard could be had to considerations such as: the nature of the activities proposed; the nature of the native title rights claimed; and the likely impact of proposed activities, to determine whether the information was sufficient. It was submitted that where a permit applicant limits the activities to specific locations the requirement that the Authority provide "a clear description of the area affected" would require it to notify them of that location. However, where the applicant seeks permission to conduct its activities anywhere in a particular section of the Park, this obligation does not arise. This would seem to suggest that the extent of the information the Authority was obliged to provide, by the Determination, was determined by the information it sought from permit applicants in the first place. I was again assured, however, that that was not the point sought to be made. As I understood the submission, it was that if an applicant for permit says that it intends to rove over the whole section, it would be correct to say that "the whole of the sea claim area" may be affected by the proposal. This would not seem to me to advance matters much beyond what I had first understood the argument to be. All that the Authority would then be conveying to the applicants is that anything is possible and the operator might conceivably decide to undertake any one of the activities listed in the application form in some part of the sea claim area. What it does not advise is whether there is a part of the sea claim area that may be affected by an activity or activities undertaken pursuant to the permit. That is what is required by the Determination, as I have attempted to explain before. It poses a question for the Authority which must be answered before a compliant notification is given. It may require the Authority to ask the permit applicant some further questions, at least if the present application forms continue to be used. For example, it might identify the sea claim area, which in this case could have been done by a small map, such as that produced in the hearing, and ask the permit applicant if it is likely that any part of the area will be utilised for any activity and ask that they be nominated. The Authority is not required to ensure that every possible visit, to or use of, the area, however remote and unforeseen, is notified. On the other hand it is not sufficient to advise that a roving permit holder might conceivably use any part of the claim area. Perhaps the Authority had thought that was what "may" (be affected) meant. 19 It also seemed to me that underlying the Authority's approach to notification of the intended permits was a belief that the activities which might be undertaken by the tourist operators were not such as would be likely to cause the applicants concern. That is, of course, a matter for the applicants to address when they are told of locations, or parts of the sea claim area, which may be subjected to the activities. Further, the Authority sought to place the obligation of notification upon the applicants, in so far as it was suggested that they could respond to a general notification, that the whole sea claim area could be utilised, by identifying areas or locations of special importance to them. The scheme of the Act does not however require the applicants to provide a list of areas of concern to them, for all purposes. It gives them the right to respond to individual proposed future acts.
Conclusion 20 The Authority has not complied with my order. I will allow an extension of time of six weeks for it to do so. Each of the parties are at liberty to apply to shorten that period or extend it. The Authority should pay the applicants' costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.
Associate: Dated: 22 October 1999 Counsel for the Applicants: Mr D Rangiah
Solicitor for the Applicants: Paul Richards & Associates
Counsel for the Respondent: Mr G Gibson QC with him Mr P Flanagan
Solicitor for the Respondent: Australian Government Solicitor
Gurubana Gunggandji People of Yarrabah
Great Barrier Reef Marine Park Authority