Gurubana Gunggandji People of Yarrabah v Great Barrier Reef Marine Park Authority

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.