Kourakis CJ, Gray and Stanley JJ
In this decision, the Full Court of the Supreme Court of South Australia considered an appeal and application for judicial review by Straits Exploration (Australia) Pty Ltd and its joint venturer, Kelaray Pty Ltd (the Appellants), against a decision of a judge of the Environment, Resources and Development Court (ERDC) of South Australia refusing to authorise mining operations.
The respondents are the Kokatha Uwankara Native Title Claimants and the Adnyamathanha people (no appearance at the hearing). The Attorney-General of South Australia intervened on the hearing.
Background
The Appellants held an exploration licence covering approximately 295 square kilometres of land on and around Lake Torrens and Andamooka Island in South Australia. They wanted to conduct mining exploration on the land and sought to negotiate a native title mining agreement with native title claimants, including the Kokatha Uwankara People, as is required under the South Australian future act regime. This attempt was unsuccessful and in August 2010 the Appellants applied to the ERDC for a determination under part Part 9B of the Mining Act 1971 (SA) (Mining Act) authorising them to conduct exploration by drilling on Lake Torrens.
The Kokatha Uwankara Native Title group lodged a native title claim over land and waters bounded by Lake Torrens, Stuarts Creek, East Well Outstation and Barker Range in 2010. They opposed the future acts application, arguing that Lake Torrens and the area of Andamooka Island are of ‘religious significance’ for them and Western Desert people more generally.
In January 2011, the ERDC made a determination prohibiting the mining operations, placing particular weight on the native title claimants’ longstanding opposition to mining and the prime importance of the land to the Kokatha Uwankara People. The ERDC also made findings about a breach of the exploration licence and violation of the rights of the Kokatha People.
Appeal Grounds
The appellants argued that:
the primary judge had misconceived his role and dealt with the facts at trial as a judicial determination, rather than an administrative decision.
The judge failed to have regard to the extinguishing or limiting affect of two significant grants made over the native title land (a pastoral lease over much of Andamooka Island and the Proclamation of the Lake Torrens National Park) when considering the effect of the mining operations on the respondent’s native title rights and interests in the land.
The judge failed to consider whether mining should be allowed subject to conditions minimising its impact on native title rights and interests.
The Appellants had been denied procedural fairness by the judge's failure to give them notice that allegations of breach of Part 9B of the Mining Act and the exploration licence were being made by another party or being raised by the Judge on his own motion.
Consideration
Kourakis CJ held that:
The ERDC's functions are arbitral and the critical question in the appeal was how the ERDC should treat native title rights and interests when they have not yet been declared.
The primary judge failed to consider the strong evidence that the Kokatha Uwankara’s claimed exclusive native title rights had been extinguished by the prior grant of the Bosworth Pastoral Lease and the creation of the Lake Torrens National Park. According to Kourakis CJ, where a native title application has been registered but not yet determined by the Federal Court, the weight which native title rights are given by an administrative decision must reflect the strength of the evidence of these rights. In this case, the primary judge assumed that the Kokatha Uwankara People’s native title rights existed, but did not take into account the prima facie case that these rights had been partially or totally extinguished.
Further, Kourakis CJ, Gray and Stanley JJ accepted the Appellants' argument that the District Court Judge denied them procedural fairness. They held that the primary judge made findings about the Appellants' breach of the exploration licence, which could potentially give rise to a criminal sanction and vicarious liability, without giving them express notice and the opportunity to present evidence and make submissions. This was regarded as a particularly serious breach of procedural fairness, due to the legal and commercial implications for the appellants and their officers and employees.
Kourakis CJ, Gray and Stanley JJ also considered that the primary judge had misunderstood his role under s 63S of the Mining Act 1971 (SA). Determinations under s 63S are purely administrative decisions, which must take into account broad policy considerations, can be overruled by the Minister and, when registered, have the effect of a contract between the parties. Instead of exercising this administrative power, the primary judge conducted the hearing as though it were a judicial process, including making findings which would penalise the Appellants for past conduct, and therefore fell into jurisdictional error.
Conclusion
The Full Court set aside the decision and orders of the primary judge and remitted the matter to another judge of the ERDC for determination in accordance with the Full Court's reasons.