Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC v State of Queensland [2014] HCATrans 183 (19 August 2014)

Last Updated: 20 August 2014

[2014] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B26 of 2014

B e t w e e n -

QUANDAMOOKA YOOLOOBURRABEE ABORIGINAL CORPORATION RNTBC

Plaintiff

and

STATE OF QUEENSLAND

Defendant

Directions

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 19 AUGUST 2014, AT 10.16 AM

Copyright in the High Court of Australia

MS S.E. PRITCHARD, SC: May it please the Court, I appear for the plaintiff. (instructed by Queensland South Native Title Services Ltd – Brisbane)

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear for the defendant. (instructed by Crown Law – Brisbane)

HER HONOUR: Ms Pritchard, could we start with just a little clarification of the argument that is sought to be advanced so that I am a little better across it? I notice in the outline of submissions on the summons for directions that there is reference to the direct inconsistency argument, but in the statement of claim there is also reference to an indirect inconsistency argument. Is it not sought to pursue that further?

MS PRITCHARD: It is pursued as well, your Honour.

HER HONOUR: It is pursued.

MS PRITCHARD: I apologise, it was oversight and I intended to address on the inconsistency claim briefly this morning, if it please the Court.

HER HONOUR: Were you going to give me an overview of the argument sought to be advanced in the - - -

MS PRITCHARD: I was not proposing to, your Honour. I was hoping to refer to the summons and the statement of claim, make a few submissions in relation to why we say it is appropriate for the proceeding to remain in the original jurisdiction of the High Court and not be remitted and then to say something perhaps about the directions going forward, filing of a defence, which I understand is not resisted by the State, and then say something in relation to the 78B notices which have been served and the responses which have been received.

HER HONOUR: All right. Well, could I just ask you then, in relation to the two strands that appear to be in the case, the indirect inconsistency argument seems to be based upon the fact that the Native Title Act makes provision for indigenous land use agreements and that they may cover the field. That is basically the operation of the Act?

MS PRITCHARD: That is it, yes.

HER HONOUR: The direct inconsistency case appears to accept – this is what I was not entirely clear about – that the Native Title Act might operate with respect to its past Act provisions, so that something like a mining lease might be continued in existence by a renewal. Is that - - -

MS PRITCHARD: The direct inconsistency argument, your Honour, is that the 2011 State Act provided for the termination of mining leases and provided for the excision, so to speak, of mine paths. Two of the mining leases imposed mine path restrictions over a significant area of two of the mining leases. They were the subject of agreement in the ILUA binding upon the plaintiff/defendant, the Quandamooka people. They were recognised, given effect to, in the determination of the Federal Court. The 2013 State Act detracts from, impairs, restricts the operation of the ILUA given effect under the Native Title Act - - -

HER HONOUR: Because so long as the mining leases are allowed to continue they will detract from native title.

MS PRITCHARD: Yes, they will.

HER HONOUR: But is it the plaintiff’s case that the ILUAs have something more than the contractual effect that the Native Title Act gives them?

MS PRITCHARD: They are given effect – we would seek to develop it at an appropriate time – analogy with awards which are not laws of the Commonwealth per se, but they are given a status.

HER HONOUR: But something more than a contractual status?

MS PRITCHARD: Something more than that, your Honour.

HER HONOUR: Is there anything in the argument which develops by way of there being some implied prohibition in the Native Title Act in relation to ILUAs?

MS PRITCHARD: The argument that we will seek to develop, your Honour, in relation to that point concerns the relationship in the future act provisions of the Native Title Act between validation of future acts under ILUAs and validation of future acts by operation of the future act provisions in the Native Title Act itself, and we say that the hierarchy between an ILUA and the future act provisions, the other provisions within Division 3 of Part 3 are such that in the instant case the ILUA is given precedence over any availability of validity pursuant to the other future act provisions in the Native Title Act.

HER HONOUR: I see. So there is that question of ILUAs having greater force and you have ILUAs having a particular status?

MS PRITCHARD: That is correct, your Honour. Section 24AB of the Native Title Act provides for order of application of provisions. Your Honour will see - perhaps if your Honour has the Act - section 24AA in Part 2, Division 3. Your Honour will see in the overview section 24AA(2):

this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not -

and then subsection (3) –

Validity under indigenous land use agreements –

and your Honour will recall from the pleading the provisions in the ILUA here in relation to validity of future acts. Subsection (4) provides for “Other bases for validity”, and your Honour will see those. Then in order of application of provisions, section 24AB(1) provides:

To the extent that a future act is covered by section 24EB (which deals with the effect of indigenous land use agreements on future acts), it is not covered by any of the sections listed in paragraphs 24AA(4)(a) to (k).

We say this accords a clear priority, primacy, to validation of future acts through an ILUA. In the case of the subject mining leases, that the approach we anticipate is put against us is to render ILUAs utterly ineffective, in particular in relation to sensitive matters such as mining leases where the State simply decides, in effect, to walk away from something which has been the subject of lengthy negotiations, is accorded status under a Commonwealth Act and is a recognised determination of the Federal Court.

HER HONOUR: And are taken from the way in which it was pleaded that some weight was placed upon the fact that where a determination is based upon an ILUA that is the premise for the determination and that derives some statutory force as well from the fact of the determination.

MS PRITCHARD: That is correct, your Honour.

HER HONOUR: Yes, I see. I do not think it is suggested by the State of Queensland that the matter should not stay in this Court. Is that correct, Mr Solicitor?

MR DUNNING: That is correct, your Honour. We went only as far as to identify the fact that our contention is on a proper construction of the ILUA the issue does not arise, that is, there is no breach, but we do not urge remitter of the matter. You would only be remitting it to determine that construction issue, otherwise it is a matter that the facts are capable of being resolved.

HER HONOUR: There is no difficulty with the facts. I would not have thought there were many facts necessary for this determination.

MR DUNNING: Correct, your Honour.

HER HONOUR: Is your argument with the construction of the ILUAs or with the effect of the amending Act?

MR DUNNING: Your Honour, I do not think we have come to a final decision on that. I do not mean to evade your Honour’s question but, in particular myself, I have not come to a view on that.

HER HONOUR: Well, at the point when the special case is settled I will need to know whether or not that is a fairly fundamental issue.

MR DUNNING: It is, your Honour.

HER HONOUR: If you are going to be at odds about that, that would affect - might affect whether or not there are any facts necessary.

MR DUNNING: Yes. We would have that resolved well before then, your Honour, at the point we deliver our defence.

HER HONOUR: Have you agreed any dates for directions?

MR DUNNING: Your Honour, I understand there is a controversy, but there is only about a week in it between the two sides. I am happy to do it. I am happy for my friend to do - - -

HER HONOUR: Ms Pritchard, do you have the draft?

MS PRITCHARD: Yes, we do, your Honour. Might I say, the only difference is that our version is slightly less liberal than that proposed by the State.

HER HONOUR: When was the statement of claim served on the State?

MS PRITCHARD: 5 June 2014 – 6 June, I apologise.

HER HONOUR: What is the matter of controversy, the time for the defence?

MR DUNNING: Yes, your Honour. We would ask for 8 September rather than 1 September, the reason being on 2 and 3 September obviously we have some other commitments in Kuczborski and we would like a little time after that to finalise it.

HER HONOUR: Yes. Well, it is either that or you have it ready before that week.

MR DUNNING: Yes, that is correct, your Honour. I cannot say we cannot do it, but we would be grateful if it were possible to make it the 8th.

HER HONOUR: Can that be accommodated, Ms Pritchard?

MS PRITCHARD: It can certainly be accommodated, your Honour.

HER HONOUR: If I just change the date in the first order to the 8th, do you need to alter the others?

MS PRITCHARD: We do not, your Honour, but the State proposes further alterations by way of expansion of that timetable.

HER HONOUR: Mr Solicitor, does there need to be any further alteration to the timetable then?

MR DUNNING: We had some other minor suggestions, but I gather we can accommodate them. Thank you, your Honour.

HER HONOUR: All right, then. Would 22 or 23 October be convenient for the parties?

MS PRITCHARD: For the plaintiff, yes, your Honour.

MR DUNNING: Yes, thank you, your Honour.

HER HONOUR: If there is nothing much to discuss in relation to the further directions – although I might have some questions, I suppose, in relation to the special case, that is always a possibility – in terms of the cost for the plaintiff, I am happy to accommodate a video link if that is of any assistance, Ms Pritchard.

MS PRITCHARD: Thank you, your Honour.

HER HONOUR: I will list it for further directions on 22 October at 10.15.

MS PRITCHARD: May it please the Court.

HER HONOUR: Otherwise there will be orders in terms of the draft initialled by me. Yes, thank you.

The Court will adjourn.

AT 10.28 AM THE MATTER WAS ADJOURNED