Ngan Aak-Kunch Aboriginal Corporation RNTBC v Glencore Bauxite Resources Pty Ltd

Two grounds for judicial review 9 Dissatisfied with the Tribunal's decision, Ngan Aak-Kunch filed an originating application with this Court seeking to have that decision judicially reviewed. In its final amended form, that application raised two grounds of review. They may be summarised as follows:

1. that the Tribunal had failed to take into account a mandatory consideration, namely the likelihood of interference or major disturbance to the area concerned, in accordance with the criteria in s 237 of the NTA; and
2. that the Tribunal made an error of law in that it concluded that a future variation of the conditions of the proposed licence would involve the creation of a right to mine to which the right to negotiate process in Subdivision P would apply. Relying on these grounds, it sought orders setting aside the Tribunal's decision; remitting the matter to the Tribunal for a decision according to law; and costs.

The Tribunal's decision on the protection conditions issue 10 The application of a set of conditions entitled the "Native Title Protection Conditions" (the protection conditions) became a "prominent and contentious" issue in the objection proceeding before the Tribunal (see [2016] NNTTA 22 at [15]). The protection conditions are central to Ngan Aak-Kunch's second ground of review above. In its decision, the Tribunal described those conditions and their relevance as follows (at [16]): The [protection conditions] are a standard set of conditions which address cultural heritage management and provide processes for inspections, notice requirements and administrative payments among other things. It is a condition of the [protection conditions] that exploration activities must not be carried out in an area if they are likely to directly interfere with … community or social activities; are likely to interfere with … sites of particular significance; and are likely to involve … major disturbance, except in accordance with the [protection conditions]. (Emphasis added) 11 It will be apparent from the s 29 notice set out above (at [7]) that the protection conditions are not mentioned in it. This omission was contrary to the normal practice that the State usually followed, as the Tribunal noted in its decision (at [17]) as follows: Where the State of Queensland issues a notice (under s 29 of the [NTA]) of its intention to grant a tenement pursuant to the expedited procedure, the State has a practice of including a statement that the grant will be subject to the [protection conditions] applying. Specifically for a mineral development licence, often the public notice specifies that the grant is "subject to the [protection conditions] for Mineral Development Licences Version 3, June 2014, pursuant to s. 194(1)(j) of the Mineral Resources Act 1989 (Qld) ('MRA') and s. 194AAA of that Act". As the Tribunal proceeded to record, that practice was not followed in this instance. 12 To attempt to remedy this omission, subsequent to the publication of the s 29 notice, the State formally confirmed to Ngan Aak-Kunch that the proposed licence would be granted subject to the protection conditions (see [2016] NNTTA 22 at [23]). This position was further confirmed in the State's written submissions to the Tribunal during the objection proceeding (see [2016] NNTTA 22 at [24] and [34]). The State also provided the Tribunal with a number of affidavits which variously stated: that the protection conditions would apply to the proposed licence as granted, that based on Glencore's Work Program it did not consider it was "proposing exploration activities which would result in significant ground disturbance", and that it "formed the view that any interference with native title rights and interests could be managed by the application of the [protection conditions]" (see [2016] NNTTA 22 at [25]-[31]). 13 However, these responses and assurances did not satisfy Ngan Aak-Kunch's concerns. It submitted to the Tribunal that, even if the protection conditions did apply to the proposed licence: "[i]t is 'reasonably likely' that during the term of the licence (if renewed, a period of up to ten years) the [protection conditions] will cease to apply to the licence, as s 194AC of the [MR (Qld) Act] allows for tenement conditions to be amended by the Minister, without the need to give notice under s 29 of the [NTA]" (see [2016] NNTTA 22 at [41]). In that event, Ngan Aak-Kunch contended, it would have no capacity to control, or consent to, Glencore's activities at the site because the right to negotiate process in Subdivision P would not apply to any variation to the protection conditions the Minister may permit. It went on to claim that the Minister's discretion to vary the protection conditions was unlimited and it was therefore "'impossible to exclude the possibility that the [protection conditions] would be removed or altered during the potential 10 year life of [the proposed licence] (as granted and renewed)'" (see [2016] NNTTA 22 at [41]). Accordingly, Ngan Aak-Kunch contended the Tribunal should make its assessment under s 237 on the basis that the protection conditions would not apply to the proposed licence as granted. 14 In addressing these contentions, Glencore informed the Tribunal that "it has always understood that, if [it] seeks to have the [protection conditions] removed or to expand the authorised activities (for example, by seeking the right to undertake bulk sampling), 'that action would trigger a native title assessment by the Government party, which would result in the application of the Right to Negotiate process under the [NTA]'" (see [2016] NNTTA 22 at [43]). For its part, the State submitted that (see [2016] NNTTA 22 at [44]): … having noted that it is not a matter for the Tribunal to determine whether or not the removal of the [protection conditions] would be a future act, … its view [was] that removal of the [protection conditions] would be a future act which would be subject to the right to negotiate process … Additionally, [it made] the point that for various reasons it is 'extremely unlikely that [Department of Natural Resources and Mines] would ever recommend the removal of the [protection conditions] from [a licence] which was granted under the expedited procedure without some other native [title] process (such as an agreement under s 31 of the NTA) taking its place' … 15 In its decision on this issue, the Tribunal first noted "the State's explanation that any such variation would be treated as a separate future act subject to the right to negotiate process" (see [2016] NNTTA 22 at [45]). Then, after considering the submissions from the parties about the weight to be attributed to the protection conditions, it came to the following conclusions: [49] My determination must be that the expedited procedure does or does not apply. The State has explained that the permitted activities are those approved in the 'Work Program' and has stated the intention of its officers to recommend to the Minister that the [protection conditions] (with amended wording incorporating mineral development licences) apply as a condition of grant to [the proposed licence] if the Tribunal determines that the expedited procedure does apply. [50] The State has described in detail its administrative practices regarding compliance with the relevant future act provisions of the [NTA]; its commitment to recommend to the Minister the imposition of the [protection conditions] in this case and whenever the expedited procedure is applied; and, its 'view' that 'any variation of [a mineral development licence] to remove the [protection conditions] as conditions would be a future act to which subdivision P applies' … I note also Glencore's understanding referred to at [43] above that an application to have the [protection conditions] removed or to expand the authorised activities would trigger a 'native title assessment' which would result in the application of the right to negotiate process. [51] I consider it highly unlikely that the State would retreat from such a clearly articulated position should an application be later made to remove or alter the conditions of grant. Accordingly, as part of my predictive assessment, I take the [protection conditions] into account in assessing the grant of [the proposed licence]. On the basis that the [protection conditions] would be imposed upon grant, I do not consider it necessary to consider the other matter posed at paragraph 1(b) of the 11 March 2016 directions, that is, whether, regardless of the application of the [protection conditions], the proposed grant attracts the expedited procedure. (Emphasis added) 16 The "other matter" referred to immediately above was "whether, regardless of the application of the [protection conditions], the proposed grant of [the proposed licence] to Glencore is an act attracting the expedited procedure" (see [2016] NNTTA 22 at [20(b)]).

The Tribunal's decision on the major disturbance issue 17 Ngan Aak-Kunch's first ground of review (at [9] above) challenged the Tribunal's assessment of the extent of the disturbance that was likely to occur to the area concerned under s 237 of the NTA. In this respect, it should be noted that this proceeding is confined to the major disturbance criterion expressed in s 237(c) (see at [5] above). Thus the criteria prescribed by ss 237(a) and (b) are not presently in issue. On this major disturbance issue, Ngan Aak-Kunch specifically identified two paragraphs of the Tribunal's decision ([114] and [118]), as follows: [114] I accept that should the State proceed to grant [the proposed licence] to Glencore, the grant will be subject to the [protection conditions]. At [50], I noted the State's and Glencore's position that any application to have those conditions removed or to expand the authorised activities would trigger a 'native title assessment' resulting in the application of the right to negotiate process. [118] Finally, I concluded that taking account of the Work Program, the Environmental Authority, the Code of Environmental Compliance, and the results of previous activities, it was not likely that Glencore will engage in activities which involve significant ground disturbance. That conclusion is supported by the contentions of the State and acceptance by Glencore that any form of sampling which might cause major disturbance would not be permitted without requiring another native title process to be followed. 18 Both of these paragraphs appear in the section at the end of the Tribunal's decision where it summarises the main conclusions it had reached earlier. Thus, [114] referred back to, and summarised, its earlier conclusions about the protection conditions (at [50] set out at [15] above). Similarly, [115]-[117] summarised the conclusions the Tribunal had reached about the criteria in ss 237(a) and (b). For example, [117] summarised the conclusion it reached about the criterion in s 237(b) as follows: While there was information regarding sites within the [proposed licence] area, for example, in the Sites Register and anthropological reports, apart from general descriptions, I concluded at [93] to [98] that sites of particular significance had not been identified - noting that the cultural heritage protective regime and engagement framework of the [protection conditions], coupled with the proponent's obligations under the ACHA and the MRA, would make adverse or unacceptable impact on sites unlikely. This reflects the Tribunal's conclusions on that criterion at [93]-[98] where, first, it concluded there was insufficient evidence identifying any sites of particular significance such that there was any "real risk of interference" to them (see at [95] and [98]). Secondly, it observed that, even if such sites existed, it was satisfied that there was a "site protection regime in place which would make adverse impact on sites unlikely" (see at [98]). 19 The Tribunal adopted a similar approach with [118]. That paragraph contains a summary of its earlier conclusion at [112] (in almost identical terms) with respect to the criterion in s 237(c), as follows: Taking account of the Work Program, the Environmental Authority, the Code of Environmental Compliance, and the results of 'previous activities' (including retained drilling samples which can be used to evaluate resources), I am of the view that it is not likely that Glencore will engage in activities which involve significant ground disturbance. I also accept and would find it highly unlikely, based on contentions made by the State, that any form of sampling that might cause major disturbance would be permitted without requiring another native title process to be followed. 20 This conclusion reflects the Tribunal's consideration of that criterion at [99]-[111] of its decision. That section of the Tribunal's decision begins at [99] with a description of the case Ngan Aak-Kunch advanced before the Tribunal on this issue. Its case was that, in determining whether a major disturbance to the area concerned was likely to occur, the "full scope of rights permitted" under the proposed licence should be considered. Adopting that approach, it contended that it was likely that Glencore would carry out activities that exceeded the scope of its Work Program. In particular, it contended that there was a likelihood that Glencore would wish to conduct bulk sampling on the site in the later years that the proposed licence was in effect and, if it did, that activity would be unconstrained by the protection conditions (see [2016] NNTTA 22 at [99]). Finally, it again raised the discretion which the Minister had to vary the protection conditions (see its contentions at [13] above). 21 In considering these contentions, the Tribunal first looked at whether the activities to be undertaken on the site under the proposed licence would involve bulk sampling. After noting that Glencore's Work Program did not refer to such sampling, it recorded a submission from Ngan Aak-Kunch, consistent with its contentions above, to the effect that (at [101]): … 'given the considerable work already undertaken with respect to the resource located within [the proposed licence], and the potential 10 year life of the tenement, it is reasonable to predict that some form of bulk sampling will occur within the area of [the proposed licence] in conjunction with considerable infrastructure work as [Glencore] moves to establish the development potential of the Aurukun project and validate its business case' … 22 The Tribunal then recorded Glencore's response that it "did not propose to undertake any bulk sampling"; and it "has always understood the [proposed licence] activities it sought were exploratory and no bulk sampling would be approved" (see at [101]). It also recorded the State's position that it the proposed licence "would be conditional upon compliance with the approved Work Program, which does not provide for any bulk sampling or 'considerable infrastructure work', and that carrying out either of those, in the absence of an application for variation, would be a breach of the licence". On this latter aspect, the State again addressed the question whether the proposed licence could be varied to remove the protection conditions without it following the right to negotiate process in Subdivision P. On that matter, the Tribunal recorded the State's contention that (at [102]): … '[it] should conduct its predictive assessment on the basis that the conditions of the [proposed licence] will not allow [Glencore] to engage in activities which involve significant ground disturbance (including bulk sampling or considerable infrastructure work) without an application from [Glencore] to vary those conditions and that such an application would trigger a new native title process …' 23 These contentions were considered by the Tribunal later in its reasons on two alternative bases: if the protection conditions applied; and if they did not apply. With respect to the former basis, it recorded the State's contention that any major physical disturbance to the land was unlikely if those conditions and the Land Access Code applied (see at [107]). On the latter basis, it recorded the State's contention that, even if the protection conditions did not apply, the limited nature of Glencore's Work Program, including the rehabilitation and mitigation measures to be undertaken under it, and the non-inclusion of any bulk sampling or considerable infrastructure work, meant that there would be no major disturbance under s 237(c) (see at [108]). 24 In determining whether any major disturbance was likely to occur on the area concerned, the Tribunal also referred to Glencore's contentions about the effect of the State's regulatory regime, including the Environmental Authority and the Code of Environmental Compliance, and then examined the nature and effect of the constraints imposed under both of those regimes (at [103]-[105]). In this respect it is important to note that, earlier in its decision, when considering whether Glencore's activities under the proposed licence would be likely to interfere with any sites of significance in the area concerned under s 237(b), the Tribunal conducted a detailed examination of the "intended activities and the nature of the licence" (see [2016] NNTTA 22 at [76]-[92]). In the course of that examination, the Tribunal considered, among other things, the apposite provisions of the MR (Qld) Act (at [77]-[81]); Glencore's Work Program, including the sampling and drilling work that was likely to be required (at [82]-[84] and [88]-[90]); the construction activities that were likely to be conducted upon the site (at [85]-[87]); and the operation of the State's Land Access Code (at [92]). 25 Returning to its consideration of the major disturbance criterion in s 237(c), the Tribunal also recorded the contentions made by both Glencore and the State that the activities under the proposed licence would be limited because of the extent of the previous activities undertaken on the area in question. In this respect, the Tribunal noted the State's contention that "significant work, including drilling and sample collection, has been undertaken for the bauxite deposit by previous tenement holders … [and that there were] extensive drilling samples from previous works, which can be used to evaluate resources for present purposes without the need to collect any more samples" (see at [106]). 26 Finally, before coming to its conclusion at [112] (set out at [19] above), the Tribunal identified the assessment task it was required to undertake (see at [109]-[111]) citing the Full Court's judgment in Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (Little) at [51]-[54]. In particular, it noted that it was required to assess whether the "future act is likely to involve, or create rights whose exercise are likely to involve, major disturbance to the land and waters must be evaluated by reference to what is likely to be done, rather than what could be done" (see at [109]); and that it was entitled to have regard to "the history of mining and exploration in the area, the characteristics of the land and waters concerned and any relevant regulatory regime" (see at [111]).

Principles on the assessment required by section 237 27 As is already mentioned above, in making its assessment under s 237, the Tribunal relied on the principles set out in the Full Court's judgment in Little. There is no dispute in this matter that this was the correct approach. In Little, the Court approved, as correct, the approach adopted by the primary judge and by French J (as he then was) in an earlier judgment of Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (Smith) (see Little at [50]-[51]). In Smith, French J examined the amendments that were made to s 237 in 1998 and considered the judgments in Ward v State of Western Australia (1996) 69 FCR 208 (Ward) and in Dann v Western Australia (1997) 74 FCR 391 (Dann), both of which preceded those amendments (see Smith at [19]-[22]). His Honour compared the competing approaches adopted in those two judgments as follows (Smith at [20]): On one view these questions required consideration of whether the consequences negating the application of the expedited procedure were "likely" and involved "a predictive assessment of whether the grant of the exploration licences and the exercise of rights conferred by those licences would or would not be likely to result in interference of any of the three relevant types" -- Ward v Western Australia (1996) 69 FCR 208 at 222 (Carr J). The other view was that it was not the Tribunal's task to attempt to foresee what activities would in fact occur on the subject tenement if an exploration licence were to be granted. The appropriate course involved assessment of the nature of the future act. So where the relevant future act created a right, the Tribunal's task was to assess the potential consequences of its exercise, not to determine the degree of likelihood that they would in fact occur -- Western Australia v Ward (1996) 70 FCR 265 at 279 (Lee J). The latter view was preferred by the Full Court in Dann v Western Australia (1997) 74 FCR 391 at 393 (Wilcox J), 399-400 (Tamberlin J) and 411 (R D Nicholson J). 28 Having made this comparison, his Honour concluded that the 1998 amendments were intended to reflect the approach taken in Ward rather than the one adopted by the Full Court in Dann (see Smith at [23]). He then proceeded to describe the nature of the assessment required by s 237 as follows (Smith at [23]): … The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term "likely" in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. … Consistently with the objects of the Act, the word "likely" requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237. 29 French J added (at [27]) that: The evaluation is contextual. The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial. It is that kind of assessment which the applicant in this case regards as impermissible. In my opinion, however, it reflects a commonsense approach to the question posed for the Tribunal which was reflected in the approach which it took in this case. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act. Counsel for the applicant accepted that it was this issue that was at the core of his argument. It was put to him in the course of oral argument that what the ground really boiled down to was that the Tribunal, by implication, had suggested that interference was not direct if there were other concurrent impacts in the light of which the impact of the proposed future act was assessed. It was the applicant's position that what the Tribunal should have done was simply look at the impact of the proposed future act. 30 Little, and therefore Smith, remain the authoritative decisions on the nature of the Tribunal's assessment under s 237 of the NTA.

The Tribunal took a two step approach to its assessment 31 Ngan Aak-Kunch's position on its two grounds of review before this Court is substantially the same as it was before the Tribunal. On the protection conditions issue, its position is set out at [13] above and on the major disturbance issue, its position is set out at [20] and [21] above. 32 Ngan Aak-Kunch accepts that, in its decision, the Tribunal adopted the correct approach to the assessment it was required to undertake under s 237 of the NTA, namely that outlined in Smith and Little. Those judgments make it clear that the Tribunal was required to make a predictive assessment of the disturbance that was likely to be involved in undertaking the proposed act. Further, while the legal rights likely to be conferred by the proposed licence must be considered, the assessment is not confined to those rights. That is, it is not limited to what could, or could not, be done under the conditions of the proposed licence. Rather it looks to what is likely to be done, taking into account those rights and all the relevant circumstances relating to the proposed act and its likely effect on the area concerned. For example, as the Tribunal correctly observed at [111] (set out at [26] above), in this matter those circumstances included the history of mining and exploration in the area concerned, the characteristics of that area and any relevant regulatory regime applying to Glencore's activities. 33 In my view, the Tribunal undertook such an assessment of the proposed act in this matter. With respect to the criterion in s 237(c), it did so in two steps. First, it considered the nature and extent of the legal rights that were likely to be conferred by the grant of the proposed licence to Glencore. In the second step, it considered those rights in the context of the activities that were likely to be pursued by Glencore and all the relevant circumstances bearing on those activities, to determine whether the proposed act was likely to involve a major disturbance to the area concerned. While the protection conditions issue overlapped both steps, in broad terms, these two steps correspond to the protection conditions issue and the major disturbance issue, respectively. They also broadly correspond to Ngan Aak-Kunch's second and first grounds of review, respectively.

The second ground rejected - the protection conditions were likely to be imposed and not varied 34 In considering the nature and extent of the legal rights that were likely to be conferred by the proposed licence, under the first step mentioned above, the Tribunal examined the regulatory regime that governed the proposed licence, including the administrative practices of the State and the relevant provisions of the MR (Qld) Act. From that legislation, it identified the discretion the issuing Minister had to impose conditions on the grant of the proposed licence. It also ascertained that the Minister concerned had a discretion to vary those conditions during the life of the proposed licence. It then considered the evidence before it and decided, as a matter of fact, that the protection conditions were likely to be imposed as conditions of the grant of the proposed licence to Glencore. It also decided, as a matter of fact, that it was "highly unlikely" ([51] of its decision set out at [15] above) that those conditions would be varied in the future to remove them, or to otherwise alter the conditions of the proposed licence as granted. It did not determine, nor need to determine, the question whether, if the State did attempt to vary the conditions of the proposed licence, such a variation would engage the right to negotiate process under Subdivision P. It did not need to determine that question because, having determined, as a matter of fact, that any such variation was highly unlikely to occur, it was entirely unnecessary for it to do so. 35 All of these conclusions are plain, in my view, from [51] of the Tribunal's decision, and particularly the final sentence thereof (see at [15] above). It is true that, in [50] and later in the Tribunal's decision, for example at [114], and in the final sentences of [112] and [118], the Tribunal could be taken to be expressing a view about that question. However, having regard to the clear terms of its conclusion at [51] and to the whole of the Tribunal's decision, I do not consider it did. Instead, in those paragraphs, I consider the Tribunal was doing no more than reiterating the positions put to it by Glencore and the State which undoubtedly touched on that question, but in circumstances where the State emphasised its view that that question was not a matter for the Tribunal to determine (see at [14] above). In reaching this conclusion, I have had regard to what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that "[t]he reasons [of a decision-maker] are not to be construed minutely and finely with an eye keenly attuned to the perception of error". 36 For these reasons, I reject Ngan Aak-Kunch's contentions on the protection conditions issue (set out at [13] above) and, as a necessary consequence, its second ground of review.

The first ground rejected - the Tribunal conducted a valid predictive assessment 37 Because Ngan Aak-Kunch partly relied on the protection conditions issue in its first ground of review (see at [20] above), my conclusion immediately above about that issue also disposes of its first ground of review, at least to that extent. Furthermore, in this respect, and on Ngan Aak-Kunch's first ground of review, it is important to note that the Tribunal concluded at [108] (see [23] above) that, even if the protection conditions did not apply to the proposed licence, because of the limited nature of the activities Glencore proposed to undertake, there was not likely to be any major disturbance to the area concerned. 38 The remainder of Ngan Aak-Kunch's first ground (to the extent there is any) calls for an examination of the validity of the Tribunal's assessment, under the second step mentioned above, of the activities that were likely to be pursued by Glencore under the proposed licence; and all the relevant circumstances bearing on those activities; to determine whether the proposed act was likely to involve a major disturbance to the area concerned. Having conducted a careful and thorough assessment of the evidence and materials before it bearing on those matters at [76]-[92] and [100]-[111] of its decision, the Tribunal summarised its conclusion at [112] and [118]. There it said that, after taking account of all the relevant circumstances, it was of the view "that it is not likely that Glencore will engage in activities which involve significant ground disturbance". This conclusion about the likely scope of Glencore's activities in the area concerned constitutes a clear rejection of Ngan Aak-Kunch's contentions to the contrary (see at [20] above). Having regard to my review (set out at [21]-[25] above) of the paragraphs of the Tribunal's decision where it conducted that assessment, I consider the Tribunal properly conducted a predictive assessment of the kind outlined in Smith and Little. That is, it conducted a predictive assessment as to whether the activities Glencore proposed to carry out under the proposed licence would, in all the relevant circumstances, be likely to result in a major disturbance to the area concerned. Putting aside the protection conditions issue, Ngan Aak-Kunch was not able to point to any evidence, or any matter, that the Tribunal failed to properly consider in this assessment, nor any finding of fact that the Tribunal made in the course of it that was not supported by the evidence before it. 39 For these reasons, I reject Ngan Aak-Kunch's contentions on the major disturbance issue (set out at [20]-[21] above) and, therefore, its first ground of review.

Conclusion - application dismissed 40 Since I have rejected both of Ngan Aak-Kunch's grounds of review, it necessarily follows that its originating application must be dismissed. I will order accordingly. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.