Indigenous Law Bulletin
Federal Court (Full Court)
(2000) FCA 603
Heerey, Drummond & Emmett JJ
Appeal from decision by Keifel J
11 May 2000
By Francis Anggadi
Harris and the Gurubana Gunggandji people of Yarrabah, Queensland are registered claimants under the Native Title Act 1993 (Cth) (‘the Act’). As such, they have a right under section 24HA(7) to be notified and to make comments on any permits proposed to be granted by the Great Barrier Reef Marine Park Authority (‘the GBRMPA’) under the Great Barrier Reef Marine Park Act 1975 (Cth) (‘the GBRMPA Act’).
Section 24HA(7) of the Act provides that before the GBRMPA (or any other authority) grants a permit that includes the management or regulation of certain marine and terrestrial areas in Great Barrier Reef, the Authority must notify any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies, corporate and registered native title claimants in relation to that area.
In this appeal, the claimants argued that the notice issued by the Authority did not provide them with enough information to comment on. Supporting this claim, the claimants argued that the identities of the applicants for the permits were not disclosed to them, nor did the notices purport to identify an area or location within the claimant’s native title claim area. Rather, the notice provided ‘no more than a blanket description of areas specifying whole zones’ (para 12).
The Full Court found that any more detail than this blanket description was not envisaged by the Act. The Full Court considered that the requirement under section 24 HA(7) will be satisfied if the GBRMPA:
1. notifies the registered native title claimants that the Authority proposes to grant a number of permits; and
2. generally describes the activities comprising the activities requiring the permit; and
3. invites claimants to comment.
Provision of copies of each permit application, or all information provided by permit applicants, was found to be unnecessary. It was held that the Authority had gone beyond what was required in that it particularised the activities and sent a total of 109 notices to the claimants.
In relation to both the issue of the notice and the opportunity to comment, the claimants argued that because the outcome of the Authority’s decision to grant a permit might profoundly affect their interests, the claimants were entitled to a common law right to procedural fairness to advance arguments for their case – a right which included ‘the Authority providing them with extensive information before they can be in a position to respond to the Authority’s proposal to grant the permits’ (para 19).
The Full Court rejected the implication of procedural fairness because the legislative intent shown by the section and surrounding sections was that the requirement should be interpreted narrowly –
persons with determined or possible native interests in the land are to have carefully graded rights to be notified beforehand and are also to have carefully graded rights to have attention given by the decision-maker to their views about the doing of the act (para 27).
The Full Court held that in this case there was no room for adding an implication of procedural fairness to such carefully graded rights.
The Full Court held that the Act requires that the notice and the invitation to comment be given before the permit is granted. No positive right of participation in the decision-making process relating to the granting of the permit can be implied. Rather, the Act ‘leaves it entirely to the Authority to decide whether the comment should cause it to change or modify its decision to grant the permit’ (para 51). There is no positive duty upon the Authority to consider the comments so that it will ensure that no harm is done to native title interests. The object of s 24HA(7) is precautionary only (para 52) and confers only ‘a right to proffer information and argument to the decision-maker that it can make such use of as it considers appropriate’ (para 38).
Based on these considerations, the Full Court dismissed the appeal on this count and held that there had been more than adequate notification procedures and opportunity to comment.
Francis Anggadi is a paralegal with Corrs Chambers Westgarth Lawyers. This casenote was prepared for the Aboriginal and Torres Strait Islander Commission and is published with the kind permission.