Reeves J
In this matter, Reeves J dismissed the Ngan Aak-Kunch Aboriginal Corporation RNTBC’s application to have a decision of the National Native Tribunal judicially reviewed. The Ngan Aak-Kunch PBC holds exclusive native title rights and interests over an area of land near Aurukun in North Queensland which includes the site of the proposed mineral development licence, the grant of which, the Tribunal had determined attracted the expedited procedure. The first respondent was Glencore Bauxite Resources.
In January 2015, Glencore lodged an application under the Mineral Resources Act 1989 (Qld) for a licence to study the bauxite resources at the site and to assess its mining development potential with the Queensland State Government. The Tribunal determined that the grant of the proposed license to Glencore was an act that attracted the expenditure procedure as it was not likely to interfere with the community or social activities of, or areas or sites of particular significance to, the native title holders, or involve major disturbance to any land or waters concerned.
The Ngan Aak-Kunch PBC filed a Federal Court application for judicial review of the Tribunal’s decision on two grounds: 1. that the Tribunal made an error of law in concluding that a future variation of the conditions of the proposed license would involve the creation of a right to mine to which the right to negotiate process in Subdivision P of the NTA would apply; 2. the Tribunal’s failure to take into account the mandatory consideration of the likelihood of interference to the area concerned. As such, the group sought to have the Tribunal’s decision set aside.
Protection conditions ground
The applicant submitted that protection conditions were omitted from the s 29 notice, contrary to the normal practice followed by the State. The State attempted to rectify this by notifying Ngan Aak-Kunch that the proposed licence would be granted subject to protection orders. Ngan Aak-Kunch contended that even if the protection orders were to apply, the Minister would be able to amend the tenement conditions as per s194AC of the Mineral Resources Act 1989 (Qld), without the need to give notice under s 29 of the NTA. The group submitted that if this were to occur, they would be unable to control Glencore’s activities at the site, because the ‘right to negotiate process’ in Subdivision P would not apply to any variation to the protection conditions the Minister may permit. The Minister’s discretion to vary the protection conditions was unlimited and it was therefore ‘impossible to exclude the possibility that the protection conditions would be altered during the life of the proposed licence’. Consequently, Ngan Aak Kunch contended that the Tribunal should make its assessment under s 237 of the NTA on the basis that the protection conditions would not apply to the proposed licence as granted.
Reeves J found that the Tribunal had examined the regulatory regime that governed the proposed licence and affirmed the discretion of the issuing Minister to impose conditions on the grant of the proposed licence during the life of the licence. Furthermore, his Honour agreed with the Tribunal’s finding that it was ‘highly unlikely’ that those conditions would be varied in the future to remove them or to otherwise alter the conditions of the proposed licence as granted. In dismissing the application, Reeves J relied on the High Court decision in Minister for Immigration and Ethnic Affairs v WuShan Liang [1996] HCA 6 at [272]: ‘[t]he reasons [of a decision maker] are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.
Major disturbance ground
Ngan Aak-Kunch sought to rely on the protection conditions argument in relation to the second ground of review. As the first ground was dismissed, the Court found the second must also be dismissed. Reeves J found that even if the protection conditions did not apply to the proposed licence, there was not likely to be any major disturbance to the area concerned.