White J
In this matter White J ordered that the respondent whether by itself, its officers, employees, agents or contractors howsoever be restrained from:
Entering or remaining on or crossing any land within the Waanyi/Garawa Aboriginal Land Trust Area (the Aboriginal Land) which surrounds Mineral Lease 585 for the purpose of or relating to obtaining access to Mineral Lease 585;
Causing damage to Aboriginal Land;
Committing any activity on the Aboriginal Land, including the carrying out of exploration or mining activities, camping the creation or construction of roads or tracks or accessing or taking water or any activities ancillary to these matters without either:
Express agreement
In the event that the Respondent and the Northern Land Council fail to agree, a determination by an arbitrator appointed by the Minister.
The costs of an incidental to the application for the interlocutory injunction were reserved.
Directions were made with respect to the filing and serving of evidence and the matter was adjourned to 5 September 2017 with liberty to apply to the Court to relist the matter for further directions if necessary.
In these proceedings White J was dealing with an application for an interlocutory injunction to restrain a mining company from entering on and within the area of the Waanyi/Garawa Aboriginal Land Trust in the Northern Territory. The first applicant was the Northern Land Council (NLC) and the second applicant was the Waanyi/Garawa Aboriginal Land Trust. The respondent to the application UAU was the mining company that had recently acquired Mineral Lease 585 (ML 585).
Section 70 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) prohibits a person from entering on to or remaining on Aboriginal land. Section 70(4) ALRA provides for a means of access to land which is landlocked by Aboriginal land. Extensive correspondence between the NLC and the respondent to negotiate an access agreement were unsuccessful. The NLC sought the injunction to prevent any unauthorised access to the land.
The principles relating to the Court’s granting of an interlocutory injunction are set out in Samsung Electronics Company Limited v Apple Inc. [2011] FCAFC 156. An applicant for an interlocutory injunction must identify the legal or equitable rights which it seeks to have determined at the trial and for which final relief is sought. When such a right has been identified the Court has regard to two principal matters: (1) whether the applicant has made out a prima facie case in the sense that if the matter was referred to trial there is a possible entitlement to the relief sought and (2) whether the balance of convenience favours the granting of the injunction. It is sufficient if the applicant shows a likelihood of success to justify in the present case the preservation of the status quo pending the trial of the action.
White J rejected at [25] the respondent’s offer of an undertaking as being insufficiently precise to dissuade the Court from issuing the injunction. In summary, White J found that the applicants have established a strong prima facie case and that the balance of convenience favoured the applicant. On that basis the interlocutory injunction was granted.