GURUBANA GUNGGANDJI PEOPLE OF YARRABAH v GREAT BARRIER REEF MARINE PARK AUTHORITY

REASONS FOR JUDGMENT 1 The Applicants are registered native title claimants under the Native Title Act 1993 ("the Act"). Their claim concerns waters in and around the Great Barrier Reef in respect of which the respondent Authority has statutory powers and duties under the Great Barrier Reef Marine Park Act 1975, which include the grant of permits to use or enter zones within the Park. Section 24HA of the Act provides that registered native title claimants, and certain specified bodies, are to be given notice of the prospective grant of leases, licences, permits or authorities under legislation relating to the management and regulation of water, aquatic resources or airspace, so that they might have the opportunity of commenting upon them. The provision for notification is contained within subsection (7) which provides: "Notification (7) Before an act covered by subsection (2) is done, the person proposing to do the act must: (a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and (b) give them an opportunity to comment on the act or class of acts." (Emphasis is added). 2 On 29 August 1998, the Special Minister of State published a document containing provisions for notification which bore reference to that subsection. The document also prescribed the mode of notification for the purposes of other sections in the Act. The provisions concerned notification to persons or groups, such as registered native title claimants, and also to the public. The contents page of the document bears the heading "Native Title (Notices) Determination 1998", under which that appear the words "Made under the Native Title Act 1993". The front page, which bears the Minister's signature, contains the following statement appearing under the heading: "I, Nick Minchin, Special Minister of State, acting for the Prime Minister, make this determination under section 252 of the Native Title Act 1993." 3 In these reasons "the Determination" refers to the document containing the collective determinations; and "a determination" refers to the decision with respect to particular notice provisions. 4 Section 252 of the Act is concerned with the method by which the public might be notified and also provides that the Minister might determine it. It is not concerned with notification to registered native title claimants or other persons or groups whose interests might be affected by future acts. It provides: 252 Notify the public in the determined way Definition (1) The expression notify the public in the determined way means give notice in the way determined by the Commonwealth Minister for the purposes of the provision in which the expression is used. Examples of ways that may be determined (2) Without limiting the ways that the Commonwealth Minister may determine, he or she may determine that the notice may be given: (a) in newspapers (including newspapers catering mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders); or (b) by radio broadcasts or television transmissions." 5 The Commonwealth, intervening in this application pursuant to s 84A of the Act, accepts that s 252 does not contain the relevant power for the Minister to make a determination for notices under s 24HA(7). Section 252 is the proper source of power for the making of a determination with respect to public notifications required by various sections of the Act. Sections 4 to 7 inclusive of the Determination, which contain these provisions, make up the larger part of the Determination. Non-public notifications, such as those in question to registered native title claimants, are dealt with by s 8 of the Determination, which is in these terms: "8. Notice of acts (1) Notice under each of the following provisions of the Act must be given by post: (a) paragraph 23HA(a) (notification); (b) paragraph 24GB(9)(c) (acts permitting primary production on non-exclusive agricultural and pastoral leases; (c) paragraph 24GD(6)(a) (acts permitting off-farm activities that are directly connected to primary production activities); (d) subparagraph 24GE(1)(f)(i) (granting rights to third parties etc on non-exclusive agricultural or pastoral leases); (e) paragraph 24HA(7)(a) (management or regulation of water and airspace); (f) paragraph 24ID(3)(a) (effect of Subdivision applying to an act); (g) paragraph 24JB(6)(a) (treatment of acts covered by section 24JA); (h) paragraph 24JB(7)(a) (treatment of acts covered by section 24JA); (i) subsection 24KA(8) (facilities for service to the public); (j) subsection 24MD(7) (treatment of acts that pass the freehold test); (k) subsection 24NA(9) (acts affecting offshore places) (2) However, notice may be given by a different means if the person to be notified agrees. (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." (The emphasis is added). 6 The applicants' point, in short compass, is that whilst s 24HA(7) is a source of power to make a determination such as that contained in paragraph (e) of s 8(1) of the Determination it was not in fact utilised. In their submission the determination in question must be taken to have been made, as the front page declares, "under Section 252". It follows that it is invalid, since that section does not authorise the determination of the way in which notice is to be given for the purpose of s 24HA(7). 7 This application is brought in proceedings for review of the Authority's conduct or decisions made in connexion with the notification of a number of applications for permit. The grounds include challenges as to the sufficiency of the notice and to the validity of the Notification by reason that the Determination made by the Minister is invalid. Two preliminary questions, the terms of which are agreed, are now raised: