Taylor, Simon --- "Compulsory Acquisition Acts in Native Title Claims: Angus Arthur Smith on behalf of the Gunggari People v Tenneco Energy Queensland & Ors" [1996] AboriginalLawB 74; (1996) 3(85) Aboriginal Law Bulletin 29

• Compulsory Acquisition Acts In Native Title Claims: Angus Arthur Smith On Behalf Of The Gunggari People V Tenneco Energy Queensland &Amp; Ors
• Injunctions Sought
• The Injunction Application Against Tenneco
• No Arguable Case
• Balance Of Convenience
• The Injunction Application Against The State Of Queensland

---

Compulsory Acquisition Acts in Native Title Claims:
Angus Arthur Smith on behalf of the Gunggari People v Tenneco Energy Queensland & Ors

Angus Arthur Smith on behalf of the Gunggari People v Tenneco Energy Queensland & Ors

Federal Court, Drummond J

Unreported, 3 Mat 1996

Matter QG60/96

Casenote by Simon Taylor[1]

This matter concerned the grant of a licence to Tenneco Energy Queensland Pty Ltd (Tenneco') to construct a pipeline through an area in southern-central Queensland. Drummond J accepted that there was a good deal of evidence of the Gunggari's connection with the region. The Goolburri Aboriginal Corporation Land Council ('the Land Council') is the relevant representative body under s202 of the Native Title Act 1993 (Cth).

During 1995, the State of Queensland and Tenneco consulted extensively with the Gunggari and other Aboriginal groups whose members lived near the proposed pipeline route. According to Drummond J, the Gunggari had agreed to the Land Council representing their interests in the consultations, and Tenneco had apparently relied on the Land Council to identify interested Aboriginal groups. Each clan, including the Gunggari, provided information to Tenneco as to the location of sites of cultural and heritage significance so that Tenneco could plan the pipeline route with due regard to them. The Gunggari were concerned with a 108 kilometre section of the pipeline route between the towns of Morven and Amby.

In December 1995, the Queensland Government granted Tenneco a licence under s69 of the Petroleum Act 1923 (Qld) to construct the pipeline. The character of this grant was an important consideration in the case.

Following the consultations a cultural heritage management plan was agreed to by Tenneco and relevant Aboriginal groups; this plan was found to have been settled in March 1996.

The plan included provision for 'traditional monitors' of construction work. Under the plan, Tenneco would retain the Land Council and make payments for the provision of the traditional monitors, who would in turn be paid by the Land Council for their services. However, Goolburri made a decision to appoint members of the Bidjarra clan to undertake this work, arguing that the Bidjarra rather than the Gunggari were the relevant traditional owners (even though the Gunggari had been involved in the consultations culminating in the cultural heritage management plan).

The Land Council's decision to appoint the Bidjarra to monitor the pipeline route drew protest from the Gunggari who, in late February, withdrew the Land Council's authority to deal with Tenneco on behalf of the Gunggari. On 8 March 1996, the Gunggari lodged native title claim QC 96/1 with the National Native Title Tribunal ('the NNIT); it was accepted on 12 April 1996 and took in not only the contentious section between Morven and Amby, but sections extending a similar distance on either side.

Injunctions sought

The Gunggari also filed proceedings in the Federal Court for interlocutory relief against

1. Tenneco, seeking an injunction to prevent the construction of the section of pipeline between Morven and Amby on the basis that the right to negotiate procedure contained in the Native Title Act 1993 should have been complied with prior to the issuing of the relevant licence;

2. The Land Council, seeking orders that moneys disbursed by the Land Council to the Bidjarra be paid into court pending resolution of the Gunggari native title claim;

3. The Queensland Government, seeking an injunction to prevent it from granting further interests in land capable of impairing the native title of the Gunggari. Pending determination of these proceedings, Tenneco decided to 'leapfrog' the contentious section of pipeline, and continue with pipeline construction in the area.

The injunction application against Tenneco

Drummond J declined to grant an injunction against Tenneco. He was not satisfied that the Gunggari had an arguable case that the grant of the licence to Tenneco was invalid, and he found that the balance of convenience heavily favoured dismissal of the injunction claim. As the High Court Wik case had not been determined (refer 'Effect of pastoral leases in Queensland: Wik Peoples v State of Queensland & Ors' in Vol 3, 78 Aboriginal Law Bulletin 29), Drummond J proceeded on the basis that arguably, any relevant native title had not been extinguished.

No arguable case

The Gunggari contended that the licence under s69 of the Petroleum Act was either a right to mine within s26(2)(a) of the Native Title Act, or a compulsory acquisition of native title rights under a compulsory acquisition act within the meaning of s26(2)(d). Sections 26 to 44 of the Native Title Act (the 'right to negotiate provisions) provide that if a government is to validly do either of those two things in relation to native title land, then it must first issue a notice under s29, and negotiate with native title claimants in good faith. The Queensland Government had not followed this procedure before issuing the licence; accordingly, it was contended the licence was invalid.

Drummond J found:

1. That the 'grant of a licence to carry gas many hundreds of kilometres from the gas well to consumers' was not a right to mine within the meaning of s26(2)(a) of the Native Title Act;

2. That there was no relevant acquisition under a compulsory acquisition act.

In relation to the compulsory acquisition act issue, His Honour found:

1. Section 69 of. the Petroleum Act, under which the licence was granted, was not a law that permitted the compulsory acquisition of native title interests or any other interests in land. It merely permitted the granting of a licence to construct and operate a pipeline;

2. Although, in connection with the grant of a licence under s69, land or interests could be acquired by agreement under s75(1) of the Petroleum Act, there was no mention in that section of compensation being required. Therefore 75(1) was not a law falling within the definition of compulsory acquisition act, because s253 of the Native Title Act provides that an act which does not require the payment of compensation is not a compulsory acquisition act;

3. Although under s75(2) the grant of an easement over vacant Crown land could be made in connection with a s69 licence, and although this might impair native title, s75(2) could not impair non-native title interests in land: by definition there could be no such interest in relation to vacant Crown land. Thus although s75(2) might underwrite the 'confiscation' of native title interests, it could not be a compulsory acquisition act, as s253 of the Native Title Act provides that an act which does not apply to both native title and non-native title interests is not a compulsory acquisition act;

4. Although ss75(5) and 76 of the Act might allow for the acquisition of both native title and non-native title interests, there was nothing requiring consideration of non-monetary compensation, which is one of the essential elements of a compulsory acquisition act (s253 of the Native Title Act).

None of the above provisions came within the definition of compulsory acquisition act; therefore none enlivened the right to negotiate. (It is not clear whether it was relevant on the facts, or whether argument in the matter explored the possibility that, s75(2) was discriminatory and the grant of an easement thereunder not a 'permissible future act' within the meaning of s235 of the Native Title Act.)

Balance of convenience

In any case, Drummond J held that the balance of convenience was heavily against the granting of an injunction, finding that

1. There was no specific evidence that the pipeline would harm the interests of the Gunggari (indeed, Gunggari input during the 1995 consultations would have been expected to prevent the pipeline from harming any cultural sites);

2. The pipeline had already been built on some land claimed by the Gunggari (bearing in mind the Gunggari native title claim covered a wider area than the injunction claim) and the Gunggari had supported and partaken in this construction;

3. There was substantial evidence indicating that the real cause of the injunction application was the dispute between the Gunggari and the Land Council over the fact that Bidjarra, rather than Gunggari, had been appointed as traditional monitors;

4. Prior to that dispute, the Gunggari had consented to construction of the entire pipeline;

5. Evidence suggested that 'the physical disturbance caused by the construction activities is transient';

6. The likely damages if the Gunggari succeeded in their native title claim would 'probably be measured by something equivalent to a licence fee in respect of the presence of the pipeline in their traditional lands';

7. Damages would in all the circumstances provide an adequate remedy for the Gunggari, if they succeeded in their native title claim;

8. If an injunction were granted Tenneco would suffer massive loss measured in millions of dollars through penalty provisions in the construction contract and breach of other obligations occasioned by the delay;

9. The Gunggari had not provided the usual form of undertaking as to damages and, even if they had, Tenneco would be unlikely to be able to recover its damages from the Gunggari;

10. Changing the route of the pipeline would be impracticable;

11. There was evidence that current gas supplies were waning, and without gas supplied through the Tenneco pipeline there was a risk of significant social and economic disruption in the Brisbane-Gold Coast area in early 1997.

The injunction application against the Land Council The Gunggari sought an injunction requiring the Land Council to pay all moneys received from Tenneco on account of traditional monitoring services provided by the Bidjarra into court, pending the outcome of the Gunggari native title claim.

Drummond J refused to grant such an injunction, noting:

1. The Land Council was bound to keep proper accounts of receipts from Tenneco and disbursements to the Bidjarra;

2. There should be no difficulty identifying the amounts paid to the Bidjarra if the Gunggari native claim succeeds in full.

The injunction application against the State of Queensland

Finally, the Gunggari sought an injunction against the State of Queensland preventing the grant of any interests which could impair the Gunggari's native title. However, it would appear no evidence was led as to any impending grant; accordingly there was no evidentiary basis for such relief.

Eds' note: This case appears to have influenced the proposal to exempt private infrastructure developments from the right to negotiate: see the Government's Outline of Proposed Amendments to the Native Title Amendment Bill 1996 (dated 8 October 1996) at p7, and item 98E of the exposure draft of the second amendment bill.

Justice Drummond's decision suggests that a government can avoid the right to negotiate by acquiring land under an act which is not defined as a 'compulsory acquisition act' in s253 of the Native Title Act. It is difficult to see why such acquisitions would appear to remove the requirement in s26(2)(d) that for the right to negotiate to apply, the acquisition must be made under a compulsory acquisition act.

See also 1(4) Australian Indigenous Law Reporter (forthcoming) for a full reproduction of the case.

---

[1] The views expressed herein are the writer’s and not necessarily those of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund.