Harris v Great Barrier Reef Marine Authority

REASONS FOR JUDGMENT 1 The applicants are native title claimants whose claim is registered under s 190 Native Title Act 1993 (Cth) ("NTA"). Their claim relates to land and seas in the vicinity of Cairns. The area the subject of the sea claim, which is here relevant, is capable of identification by reference to a map accompanying the application for native title determination. As registered native title claimants, the applicants are entitled to notification of any proposed "future acts", by reason of s 24HA(7) NTA. In this case, the term refers to the grant of permits with respect to activities in and around the Great Barrier Reef Marine Park by the Authority which administers it ("the Authority") under the Great Barrier Reef Marine Park Act 1975 (Cth) (the "GBRMP Act"). 2 Between 10 November 1998 and 2 February 1999 the applicants received 109 notices of application for permits and were given 28 days within which to provide comment. The reference to the area involved and the activities to be undertaken on it were in general terms. I shall refer to some by way of example later in these reasons. With respect to each application, the applicants sought further particulars of the activities proposed and the area that was likely to be affected. The particulars were not provided and the Authority advised, on 6 January 1999, that it intended to proceed to consider the grant of the permits. It is that conduct, or the decision to proceed to consider the permits, which is the subject of review in these proceedings. The applicants submit that they were denied an opportunity to comment upon the grant of the permits as s 24HA(7) NTA requires. That subsection 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. 3 The "act covered by subsection (2)" is here, as earlier mentioned, the possible grant of a permit under the GBRMP Act, which is legislation relating to the management of water. Subsection (3) of s 24HA provides that such a grant is valid. Subsection (4) confirms that it does not extinguish native title. 4 The applicants submit that the phrase "an opportunity to comment" on the grant of the licence is a clear importation of common law principles of procedural fairness: see Kioa v West (1985) 159 CLR 550, 584-8, 629. In the circumstances of this case the applicants submit that both the content of the notice and the time they were given to respond to it did not satisfy the obligation imposed by subsection 24HA(7). It was accepted in argument that the determination of what should have been included in the notice is likely to provide the answer to the latter question. 5 The applicants' amended application sets out the further detail sought with respect to the applications for permit: "The Further and Better Particulars sought (inter alia): (a) sufficient details of the nature of the activity proposed, so as to enable an assessment of the risk of damage to the area; (b) the date of the proposed commencement of the activity to be specified; (c) information as to the precise area of operation of the proposed activity, with particular reference to the area where damage (if any) could occur". 6 And in their written submissions they contended: "14. The notices do not reveal: (a) the location of the proposed use, beyond identifying the zones in the most general way; (b) the names of shoals or reefs nearby the proposed use; (c) prudent or feasible alternatives to the proposed use; (d) the proposed movements in the zone of persons proposing to use or enter the zone (e) the maximum number of persons who will be authorised to enjoy the permitted activity; (f) the frequency of use proposed (g) or even identify the applicant for the permit; 15. In some cases, the applications are for research purposes. In these cases the notices do not reveal: (a) how many persons will be involved in any proposed field work; (b) the proposed locations of the work (apart from saying that "all zones" are involved); (c) the frequency and duration of visits proposed; (d) the manner it is to be undertaken; (e) whether animals will be taken or killed or disturbed; (f) whether permanent structures are proposed to be used; (g) whether vessels or other machines are proposed to be used; (h) whether any land or water will be occupied for temporary periods or otherwise; (i) or even identify the applicant." They further submitted that the Authority's assessment of the impact which the proposed activity is likely to have on the reef should have been provided. 7 The applicants pointed to the nature of the right to be notified as a valuable right and one which required them to be made aware of the detail of the applications for permit, so that it could assess them and make submissions Whilst I agree that it is obviously of benefit to native title claimants, the cases refer to the right to negotiate, which also follows as a consequence of registration, as the truly valuable right: see North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, 637, 644-5; Fejo v Northern Territory (1998) 72 ALJR 1442, 1450, 1457, 1459 and 1460. 8 The respondent relies upon Kioa v West (and other cases such as Minister for Aboriginal & Torres Strait Islander Affairs v Minister for Lands (WA) (1996) 67 FCR 40, 52-3) as authority for the proposition that rights of procedural fairness such as are afforded by the common law, may be extinguished by statute, although accepting that this can only occur if such an intention is disclosed by clear statutory terms: Kioa v West 585; Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia & Ors (1996) 67 FCR 40 at 52. Here, its argument does not go that far. It submits that if some right of procedural fairness is provided by s 24HA(7), in its reference to the opportunity to comment, that right is defined by the Determination, s 8, to which the subsection refers when it speaks of notification "in the way determined by the Commonwealth Minister". I have considered the validity of the Native Title (Notices) Determination, made on 29 August 1998, as a preliminary question in this matter [1999] FCA 437. 9 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." (par 1(e) refers to notices under par 24HA(7)(a)). 10 The respondent submits that the area the subject of the permit and the activity are all that are required to be given, and here those particulars were provided. The applicants contend however that if the provisions of the Determination were to foreclose any further obligation to provide information under subsection 24HA(7), that would render the opportunity to comment nugatory. It is submitted that an inconsistency is thereby disclosed. In my opinion, if that were to occur the Determination itself would likely be invalid and it would be necessary to view the matter in that way. The applicants then argue that what is provided for in the Determination is to be seen as the minimum information necessary. To that should be added whatever is necessary, with respect to a particular application for permit, to ensure that the "opportunity to comment" on that application is meaningful. 11 The central issue is, then, whether it was intended that the opportunity to comment is limited by what the Determination requires to be notified. That would appear to require consideration of the scheme of the NTA, and the rights arising under it, and the rights which may be granted under the GBRMP Act: see Kioa v West, 585. As Mason J there suggested (585) before enquiring what the duty to act fairly requires, it may be useful, at the outset, to enquire whether the statute displaces the duty or, as here, replaces it with its own procedure which provides for some right to be heard. 12 The NTA provides, for the recognition of native title rights. In this case, the rights with respect to the sea claim are said to be: the right to take dugong, turtle, fish, clam meat and other wildlife; the right to visit; the right to take flora; the right to collect foods; the right to take things such as shells and corals; the right to gain knowledge; the care and custody of the waters; the right to prohibit any activity which would be inconsistent with the exercise of the rights set out above and the right to negotiate joint management arrangements. The sea claim as identified is not of great dimension. It includes a number of reefs. 13 As earlier mentioned, the NTA permits licences and permits to be granted whilst the native title claim is being litigated. They remain valid in the event that native title is established, but do not operate to extinguish the native title rights in any respect. 14 The GBRMP Act provides for areas within the Park to be identified and regulated through zoning plans. The area the subject of the native title sea claim here, lies within the Cairns Section of the Park. The objects of the Plans are said to be the conservation of the Reef; the regulation of the use of the Park so as to protect the Reef while at the same time allowing for its reasonable use; the regulation of exploitation of the Reef's resources; the reservation of some areas for public use and the preservation of some areas of the Reef in its natural state for the purposes of scientific research: s 32(7). The Plans are published and laid before Parliament: s 33. The Authority is obliged to comply with them: s 36. The Plans list the purposes for which the zone may be entered and such purposes must be the subject of permission: ss 32(6) and ss 38A, 38B. Provision for permission is also made with respect to any areas not subject to zoning Plans: s 38F. 15 The Regulations to the Act require an application to be lodged with the respondent Authority for a relevant permission: reg 13AC(1). Subsection (2) of that section requires the application to specify, amongst other things: the section of the Park to be entered and the name of the zone; the purposes for which the zone is to be used or entered; the proposed movement within the zone; the location of the use of, or entry into, the zone or designated area, including the name of any shoal, reef or island on or near which such use or entry is proposed; and the means of transport to and within the zone. The respondent is entitled to ask for further information as it may reasonably require. Subsection (3) provides for information relevant to a permission for research purposes. They include: a description of the sequence and location of fieldwork to be carried out; the number of living or non-living matter to be taken for research purposes and the methods to be used. 16 Amongst the matters the respondent is obliged to take into account in considering an application for permission, those which seem most relevant are: the need to protect the cultural and heritage values held in relation to the Park by traditional inhabitants and other people; the conservation of natural resources; the nature and scale of the proposed use in relation to the existing or future use and amenity of the area; the likely effects of the proposed use on adjoining and adjacent areas and adequacy of safeguards for the environment; the means of transport for entry, departure and use within the area; the adequacy of provisions for mooring and landing; details of structures or vessels involved; and arrangements proposed for the making good of damage caused by the activity (reg 13AC(4)). Paragraph (5) of that regulation deals with application for entry into an area for the purpose of traditional fishing. The respondent may require further particulars (s 13AE). The permit may be granted subject to conditions: reg 13AF. Regulation 26 requires the respondent to make an assessment of the impact of the activity on the Park and Reef prior to the grant of any permission. This is one of the pieces of information which the applicants say should have been provided to them. 17 The respondent places some reliance upon reg 22B(1), which provides that a person whose interests are affected by a decision to grant a permission may ask the respondent to reconsider the decision. The respondent is obliged to reconsider the decision: s 22C. That decision is in turn susceptible to review by the Administrative Appeals Tribunal: s 22D. Those provisions are relied upon by the respondent to show that the applicants' rights to challenge or test any proposed permit were intended to be pursued by these means. 18 The majority of the notices provided to the applicants concern tourist activities. The "Proposed Act Requiring Notification" identified was the "Grant of a permit by the Great Barrier Reef Marine Park Authority pursuant to reg 13AF of the Great Barrier Reef Marine Park Regulations"; the "General Nature of Activities Proposed" in such a case was, by way of example: "Conduct of a tourist program -Activities being fishing and snorkelling, using an un-named vessel (overall vessel length six (6) metres; maximum passenger capacity six (6) and one (1) crew). 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 an unnamed vessel (overall vessel length six (6) metres; maximum passenger capacity six (6) and 1 crew)"; and the "Area That May Be Affected By Activities Proposed" in most cases was described as: "The permissions applies to all zones and locations within the Cairns Section of the Great Barrier Reef Marine Park EXCEPT Preservation Zones, Scientific Research Zones and Designated Areas". Other applications concerned activities such as scientific research, the taking of animals, moorings and traditional fishing, hunting and gathering. 19 The identity of the applicant for the permit in each case was not disclosed. A smaller number of notices nominated reefs or waters in a particular location. This was the case where the activities were more site-specific, such as mooring, traditional fishing and hunting and snorkelling. None of the notices purport to identify an area or location within the applicants' sea claim area as the subject of the application for permit. 20 The notices are concerned with the areas the subject of those applications, and the majority of the notices provide little more than a blanket description of those areas specifying whole zones in a Section or Sections themselves. 21 Subsection 24HA(7) must be construed so that the "opportunity to comment" on the grant of a permit given by the Authority is not meaningless. The applicants put it much higher. They submitted that they ought to be afforded an opportunity to put forward every legitimate argument for or against the proposal. Such an intention is not in my view disclosed by the description of the opportunity given, to comment, nor by the information which the Determination requires the respondent to give the applicants. An opportunity to comment does not suggest some detailed submissions or obligations were envisaged. There are other provisions for notification contained in the NTA, such as s 26A(5), s 29(3) and s 138, the contents of which are also dealt with in the Determination (see s 6 of it). Some of them involve the making of submissions by a party or members of the public and some provide that the recipient of a notice must be informed as to how they may ascertain further information. No similar provisions are made for the s 24HA(7) notice. 22 While a statutory power is required to be exercised in accordance with procedures fair to the individual, those are to be considered in the light of the statutory requirements, the interests affected and the purposes the statute seeks to advance or protect: Kioa v West, 585. The relevant requirements of the Determination here, that there be "a clear description of the area that may be affected by the act or class of acts" and "a description of the general nature of the act or class of acts", would not require the provision of the more detailed information which the respondent receives in the application for permit. What is in fact required by the Determination, and whether that has been complied with here, are matters which I shall deal with later in these reasons. The respondent submitted that the opportunity to comment provided should be seen as a lesser right than, say, one to make submissions or object. I do not think that a quantitative comparison is very useful. The more important consideration is whether what is provided for, in s 24HA(7) and the notice provisions of the Determination, is likely to achieve the purpose for which the right to comment is given. 23 The applicants submitted that simply because a procedure is provided by a statute it does not follow, as of course, that what the common law might require by way of procedural fairness is to be taken as inapplicable, referring to Minister v Western Australia, 52-3. The purpose of the statutory provisions there were, however, quite different from those of procedural fairness and for that reason could not be taken to be a replacement for them. Further, it was not doubted by the Court that the interests in question, to use lands for certain purposes, were such that the exercise of a statutory power to prohibit any such use would require that they be advised of material matters and afforded an opportunity to answer them, unless the statute in question expressly excluded the common law duty: 52. 24 In the case of a registered native title claimant, the present rights held are those to be notified and to participate in negotiations, pending a determination as to whether the native title rights asserted are established. The purpose of the notification, it would seem to me, is to allow an opportunity to a native title claimant to bring forward information known to them and to point out any possible adverse affects upon their native title rights, in the event they are made out. The permit remains valid despite a judgment pronouncing native title rights, although a permit will not extinguish them. What the statute raises for consideration is the possibility of activities being permitted which may, in a practical sense, diminish the native title rights or harm the area over which they are exercised. So viewed, the role played by a native title claimant in the issue of permits by the respondent is consistent with the protection of their rights without impeding unduly the respondent's function and duties under the GBRMP Act. 25 The respondent's duties, with respect to the issue of permits, are quite extensive. Whilst it could not be assumed s 24HA(7) NTA was drafted with the GBRMP Act in mind, it is noteworthy that the respondent is in any event obliged to consider effects upon areas of cultural and heritage value to traditional inhabitants. 26 The important question in this case, it seems to me, is whether or not the Authority has complied with the requirements of the Determination as to notification and in particular whether a "clear description of the area that may be affected by the act or class of acts" was provided. 27 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. 28 There remains the question as to whether the time provided in the notices, twenty eight days, was sufficient. The question is redundant now, given my view that the notices did not advise the applicants what part of their claim area was involved. I observe however that if the requirements of the Determination were fulfilled, the applicants should not reasonably have required much more time given the underlying assumption, upon which the right to notification proceeds, that they are wholly familiar with areas of significance to them and how the rights claimed might be affected.