Reeves J
In this matter, Reeves J ordered that the Ngan Aak-Kunch Aboriginal Corporation RNTBC pay the second respondent’s costs of and incidental to the proceeding to be taxed or agreed. The respondents to the application were Glencore Bauxite Resources Pty Ltd, the State of Queensland and the National Native Title Tribunal.
Reeves J ordered the parties to file submissions on the question of costs after the Ngan Aak-Kunch Aboriginal Corporation RNTBC’s originating application (which sought to have the application of the expedited procedure to the grant of a mineral development licence to Glencore Bauxite Resources Pty Ltd overturned) was dismissed in [2017] FCA 265 (Ngan (No 1)). Glencore, the first respondent, did not seek an order for costs and did not file any submissions. The State of Queensland as the second respondents filed submissions in which it sought an order that Ngan Aak-Kunch Aboriginal Corporation RNTBC pay its costs of and incidental to the proceeding. The State of Queensland argued that Ngan Aak-Kunch Aboriginal Corporation RNTBC had been wholly unsuccessful in the proceeding and that therefore the usual rule should apply that costs follow the event. In particular, it submitted that proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) are not proceedings to which s 85A of the Native Title Act 1993 (Cth) (NTA) applies. It further submitted that Ngan Aak-Kunch Aboriginal Corporation RNTBC’s application did not raise any issue of public importance about the construction of s 237 of the NTA and nor were there any special circumstances that would justify departure from the usual rule.
Ngan Aak-Kunch opposed the State’s application for costs and submitted that the spirit of s 85A of the NTA should apply in this matter. Ngan Aak-Kunch submitted that its application raised a ‘key question about whether the variation of conditions of a mineral development licence under the Mineral Resources Act 1989 (Qld) attracted the right to negotiate process in Part 2, Division 3, Subdivision P of the NTA, and therefore that its application raised a matter of construction of the NTA despite the Court deciding against its application.
Reeves J rejected this argument and found that there is no basis for applying s 85A NTA in this matter. Accordingly His Honour ordered that Ngan Aak-Kunch pay the second respondent’s costs of and incidental to this proceeding to be taxed or agreed.