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

1. Ngan Aak-Kunch Aboriginal Corporation RNTBC pay the second respondent's costs of and incidental to this proceeding to be taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 When Ngan Aak-Kunch Aboriginal Corporation RNTBC's (Ngan Aak-Kunch) originating application was dismissed ([2017] FCA 265 (Ngan No 1)), I ordered the parties to file any submissions they wished to on the question of costs. Glencore Bauxite Resources Pty Ltd, the first respondent, subsequently informed the Court that it did not wish to seek an order for costs and therefore would not be filing any submissions. However, the State of Queensland, the second respondent, did file submissions in which it sought an order that Ngan Aak-Kunch pay its costs of and incidental to this proceeding. 2 In support of that application, the State submitted that Ngan Aak-Kunch had been wholly unsuccessful in the proceeding and the usual rule should apply that costs should follow that event. It submitted that there were no special circumstances to warrant any different order. In particular, it submitted that it is well-established in this Court that proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) are not proceedings to which s 85A of the Native Title Act 1993 (Cth) (the NTA) applies. Furthermore, it submitted that there was no reason to apply the "spirit" of that section in exercising the discretion to award costs in this matter. In this regard, it submitted that Ngan Aak-Kunch's application did not raise any issue of public importance about the construction of s 237 of the NTA and nor were there any other special circumstances that would justify a departure from the usual rule. 3 Ngan Aak-Kunch opposed the State's application for costs. It submitted that the "spirit" of s 85A of the NTA should apply in this matter, relying in particular on the decision of Marshall J in Murray v Registrar of the Native Title Tribunal [2003] FCA 45 (Murray) at [7]-[9]. It submitted that its application raised a "key question" about whether the variation of conditions of a mineral development licence under the Mineral Resources Act 1989 (Qld) attracted the "right to negotiate" process in Part 2, Division 3, Subdivision P of the NTA. It submitted that the Court's failure to accept its contentions on this question did not detract from its claims that its application raised a matter of construction of the NTA. 4 I reject Ngan Aak-Kunch's contention that its application raised a key question concerning the construction of the NTA. As I observed in Ngan No 1 (at [34]): "having determined, as a matter of fact, that any … variation [to the conditions of the proposed licence] was highly unlikely to occur, it was entirely unnecessary" for the Tribunal 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". I do not therefore consider that there is any basis for applying the "spirit" of s 85A of the NTA in this matter. Even if there were some reason to adopt that approach, as Edelman J observed in Burragubba v State of Queensland (2015) 236 FCR 160; [2015] FCA 1163 at [27] and [30], with which I agreed in Burragubba v State of Queensland [2016] FCA 1525 at [7]-[9], it has only been applied in limited circumstances involving questions of construction of the NTA and it does not extend to apply to every such issue of construction, no matter how tenuous it is. As to the decision of Murray, which was relied upon by Ngan Aak-Kunch, I consider it is distinguishable because it related to proceedings where the "scope and meaning of s 24CD of the [NTA], amongst other matters" was being considered for the first time: see Murray at [8]. 5 For these reasons, I consider the State is entitled to an order that Ngan Aak-Kunch pay its costs of and incidental to this proceeding. Accordingly, I will order that: