White J
In this matter White J dismissed an application to stay the execution of orders dismissing a native title application pending the hearing of an appeal from the decision in Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899. Those proceedings dealt with the dismissal of three overlapping claims made by the Kokatha, Adnyamathanha and Barngarla people for determinations of native title in relation to the lands and waters of Lake Torrens, South Australia.
The appeals are scheduled to be heard by the Full Federal Court on 27 February 2017. The Kokatha people sought an order under r 36.08 of the Federal Court Rules 2011 (Cth) staying the dismissal of their native title claim until the Full Court of the Federal Court has handed down judgment on the appeal, or at least until 27 February 2017. The stay was aimed at preventing the holders of exploration licences (the Mining Respondents) from commencing drilling on Lake Torrens. The Kokatha people believe this activity would be contrary to their rights and interests should the Full Court appeal succeed, especially as the detriments which they fear they will suffer may not be compensable in damages, or at least fully compensable in damages.
Legal Reasoning
The application to 'stay' the Court's order dismissing the claim could not operate because there is no action required to give effect to a dismissal and no orders to stay the execution of.
The Kokatha people applied for an injunction in response to notices served on South Australian Native Title Services (SANTS) by the Mining Respondents, pursuant to s 63N of the Mining Act 1971 (SA). The interlocutory injunction application sought to prevent the Mining Respondents from applying to the Environment Resources and Development Court for a determination authorising entry to the land to commence exploration operations on Lake Torrens.
His Honour found that an appropriate undertaking had not been given as to damages in respect of the financial losses which might be caused to the Mining Respondents by the grant of an injunction. White J did not consider that any of the exceptions applied that would allow the grant of an injunction in the absence of such an undertaking. As a result, his Honour ordered that the application for interlocutory injunction be dismissed and costs reserved.