Burragubba & Ors v Minister for Natural Resources and Mines & Anor

This interesting decision concerned an application for judicial review of the Minister’s decision to grant three mining leases to the second respondent.  The appellants had a registered claim for native title over land affected by the mining leases.  At the time of the Minister’s decision, the appellant’s appeal against a decision of the National Native Title Tribunal in respect of their native title claim had yet to be decided.  The appellants successfully argued that they were entitled to procedural fairness even though they had failed to lodge an objection under s 260 of the Mineral Resources Act 1989.  However, they failed to persuade the court that there were facts and circumstances which required the Minister, acting fairly, to consult them.

Morrison, Philippides and McMurdo JJA

22 August 2017

This matter concerned an application for judicial review of a decision of the first respondent, the Minister, to grant three mining leases to the second respondent, Adani Mining Pty Ltd. [4]. The appellants were members of the Wangan and Jagalingou people, on whose behalf there was a registered claim for native title under the Native Title Act 1993 (Cth). [3].

The appellants argued before the primary judge that the Minister’s decision should be set aside, among other things, upon the basis that it was made in breach of the rules of natural justice. [5]. The appellants argued that the Minister had made his decision to grant the mining leases “upon the basis of material going to the merit of their claim to native title without hearing from them on the question”. [5]. The relevant issue concerned whether the native title claimed by the appellants had been extinguished. [7].

The primary judge dismissed the application and, on this point, held that the Minister was not obliged to hear from the appellants because they had not objected to the grant of the leases under the Mineral Resources Act 1989 (“MRA”). [6]. His Honour held that “upon the proper interpretation of the MRA, in no circumstance would the Minister be obliged to hear from any party, as to why a mining lease should not be granted, if that party had not lodged an objection under that regime”. [6].

On appeal, the appellants argued that the Minister was obliged to hear from them because the issue was one they could not have been expected to raise as an objector under the MRA. [7]. The appellants argued that the Minister had acted on information adverse to them, namely that native title had been extinguished, without affording them an opportunity to be heard. [8].

McMurdo JA, with whom Morrison and Philippides JJA agreed, was not persuaded that the requirement for procedural fairness had been excluded or confined by the MRA. [54]. His Honour held that although the terms of the Act “affect the content of the duty to act with procedural fairness”, and in this sense “clearly inform the obligation to accord procedural fairness, they do not displace it”. [54]. Accordingly, his Honour respectfully disagreed with the conclusion of the primary judge that the appellants were not entitled to be given procedural fairness because they had not presented an objection under s 260 of the Act. [56].

However, his Honour did not consider that the appellants had established that they were denied natural justice by not being asked for a submission, primarily for the reason that no inference could be made that the Minister had considered that native title had been extinguished.

In the statement of reasons, the Minister wrote “Native title has been resolved” (emphasis added). [36]. As McMurdo JA explained, there was “no finding that native title had been extinguished”. [39]. The use of the language “resolved” referred to the fact that the National Native Title Tribunal had determined that the leases could be granted, notwithstanding the claimed native title. [39]. Further, the contents of the documents, which the appellants argued had been relied upon by the Minister, had not been proved before the primary judge. [58]–[65]. His Honour noted that “[t]he documents may have advised the Minister that native title had been extinguished, that it had not been extinguished, or that no conclusion could be made one way or the other”. [58]. On balance, it could not be inferred that the documents were adverse to the appellants. [65].

His Honour concluded, the “essential premise of the appellants’ argument” was not established and the appellants therefore “failed to prove that there were facts or circumstances which required the Minister, acting fairly, to consult them before making his decision”. [65].  Accordingly, the appellants failed to prove a denial of natural justice in the making of the Minister’s decision.

J English