In this matter the Court ordered that the application filed 1 December 2017 be dismissed.
[1] Ms Delia Kemppi and her fellow applicants (who are referred to jointly as ‘Ms Kemppi’ in the reasons for judgment), comprise five of the twelve members of the applicant (the W & J applicant) that has been authorised by the Wangan and Jangalingou people to pursue on their behalf the Wangan and Jangalou native title determination application (the W & J application). In that capacity Ms Kemppi applied for an interlocutory injunction to restrain until the final determination of this proceeding, Adani Mining Pty Ltd from seeking, and the State of Queensland from granting approval under cl 9(b) of an Indigenous Land Use Agreement (the ILUA) made and registered under the apposite provisions of the Native Title Act 1993 (Cth) (NTA).
[2] The hearing of the injunction was expedited because the trial of this proceeding was due to commence in six weeks and both Adani and the State indicated that they intend to proceed in the manner described above. His Honour stated that they are entitled to do so because the ILUA mentioned above was registered on the Register of Indigenous Land Use Agreements under Part 8 of the NTA (the Register) on 8 December 2017.
Background
[3] The W & J application has been on foot for 14 years having been filed on 27 May 2004. It covers an area of approximately 30,277.6 square kilometres on the western edge of Central Queensland and includes the townships of Clermont, Alpha, Rubyvale and Capella. For the purposes of this application it also includes an area where Adani proposes to develop the Carmichael coal mine.
[4] The W & J application was entered on the Register of Native Title Claims under s 190(1)(A) of the NTA on 5 July 2004. One of the consequences of that registration is that Ms Kemppi and the other members of the W & J applicant, from time to time, also comprise the Registered Native Title Claim for the claim (the registered W&J claimant) as that expression is defined in the NTA (see ss 253 and 186(1)(d)) NTA).
[5] In April 2016, Adani entered into the ILUA with the W & J registered claimant and the State. That followed a meeting of the Wangan and Jangalingou people held on 16 April 2016 which authorised the making of the ILUA under s 251A NTA.
[6] Adani then applied to the Native title Registrar under s 24CG of the NTA to have the ILUA entered on to the Register. For the purposes of that application Adani sought and obtained from Queensland South Native Title Services (QSNTS) a certificate under s 203BE NTA. The Registrar entered the ILUA on to the Register on 8 December 2017.
[9] In the meantime, on 24 March 2017, Ms Kemppi filed this proceeding, seeking among other things, a declaration that the Certificate is void and of no effect and a declaration that, as a consequence, the Registrar lacked the jurisdiction to register the ILUA on the Register.
In June 2017, this proceeding was set down for trial to commence before his Honour on 12 March 2018.
The relevant provisions of the ILUA are set out in paragraph [11]. Clause 9 of the ILUA is particularly relevant.
[15] Ms Kemppi contended correctly in his Honour’s view that the statement in cl9(g), combined with the operation of s 24 EB(1)(d) of the NTA means that whatever native title exists in the area will be extinguished permanently by the approval of surrender under cl 9(b) of the agreement.
[16] A map of the proposed mining activity and the ‘surrender zone’ is annexed to the reasons for judgment. [19] It comprises approximately 2,750 hectares made up of six lots. Mr Manzi, head of Environment and Sustainability at Adani stated in his affidavit filed in this proceeding that by 8 December 2017, all of the requirements Adani had to meet under its agreement with the State for that purchase had been satisfied. The land is situated in the Galilee Basin State Development Area and partly in the Abbot Point State Development Area. Adani had submitted a proposal to the State that land be compulsorily acquired for the purposes of a rail component of the Carmichael Project. [21] A Notice of Intention to resume was recorded with respect to the land on 23 March 2017. It was not clear to the Court when the process of compulsory acquisition would be completed.
The principles
[25] Reeves J stated that there are two main inter related inquiries to the grant of an interlocutory injunction.
Ms. Kemppi needed to make out a prima facie case in the sense that she needed to show that she had a sufficient likelihood of success at trial to justify the grant of an injunction to preserve the status quo. She also needed to show that the balance of convenience favours that course: see Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at [65] – [72] per Gummow and Hayne JJ (Gleeson CJ and Crennan agreeing at [19]; Samsung Electronics v Apple Inc. [2011] 217 FCAFC 156.
[26] The Court’s role is to assess the strength of the probability of ultimate success and this varies from case to case. It will also depend upon the rights asserted and the practical consequences likely to flow from the grant of the injunction being sought. His Honour stated that ‘In the circumstances of this case the strength of Ms Kemppi’s probability of ultimate success is very much a live issue.’
[27] The second and interrelated inquiry, namely the balance of convenience, requires the Court to make an assessment of the harm that may be occasioned to the applicant if no injunction is granted and the harm that may be occasioned to the respondent if an injunction is granted, and to weigh those two considerations along with any others of relevance.
[28] Ms Kemppi submitted that there is a third inquiry: whether the plaintiff will suffer irreparable harm for which damages will not be adequate compensation unless an injunction is granted. His Honour however disagreed for the reasons set out in Samsung and held that is a matter which will be assessed as part of the balance of convenience and justice.
The strength of the probability of Ms Kemppi’s ultimate success
[31] In Ms Kemppi’s further amended statement of claim (FASC) there are four components:
Unreasonableness in the issue of the certificate
Failure to consider relevant considerations when issuing the certificate
A claim that the ILUA did not contain a complete description of the surrender area as required by regs 5 and 7(2) (e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999
A claim that all member of the W&J applicant had to sign the ILUA in order for it to be valid and effective.
[32] The trial of this proceeding was due to commence on 12 March 2018 and consequently his Honour did not consider it to be appropriate to express any concluded or even detailed views on the countering submissions of counsel concerning the four claims. As to the first two claims, his Honour reiterated the reservations about the probability of success of those claims as pleaded in the FASC: see Kemppi v Adani Mining Pty Ltd (No 2) [2017] FCA 1086 at [17]-[20]; [29]-[31], [35], [39] and [46]-[48].
[33] Reeves J considered that the competing constructions advanced by counsel for Ms Kemppi and Adani each had their strengths ‘so it could not be said that Ms Kemppi’s construction is lacking in strength in the sense of its probability of success.’ His Honour considered a more difficult question to be whether a failure to comply with the regulation caused the application for the registration of the ILUA to be invalid so that the Registrar thereafter lacked jurisdiction to consider that application. This involves an aspect of the s 24EB issue: if Ms Kemppi is correct that the registration is void ab intitio, there is no need for an injunction, but if she is correct she will therefore fail on this critical aspect of her substantive proceedings at trial. Ms. Kemppi’s fourth claim considers the interpretation of resolutions passed at the meeting of the claim group on 16 April 2016.'
[35] Since the question posed by the claim was whether the making of an ILUA was conditional on all of the members of the W&J Applicant signing it, this additional part of the resolution 4 was significant to the strength of Ms Kemppi’s probability of ultimate success on the claim.
[36] However Reeves J concluded that Ms Kemppi did not on the balance of probability have a strong prospect of success on any of the four claims pleaded in her FASC. Reeves J then turned to consider the balance of convenience and justice inquiry.
The prejudice Ms Kemppi claims she will suffer if the injunction not granted
[37] His Honour prefaced consideration of this issue by stating that ‘damages are not an adequate remedy for the extinguishment of an Aboriginal person’s native title rights and interests.’ He also rejected Adani’s submission that the Wangan and Jagalingou people have not yet had a determination of native title in their favour.
[38] Reeves J stated that ‘where there are multiple members of the applicant or a registered native title claimant the members have to act jointly and collectively in discharging their role’: see Burragubba v State of Queensland [2016] FCA 984 at [141] – [142]. It follows that a single member or even a minority of the membership cannot claim to exercise the authority of the applicant or the registered native title claimant as Ms Kemppi purports to do in this proceeding. Therefore ‘I do not see how she can validly claim to suffer any prejudice in that capacity if this injunction were not granted.’
[42] Reeves J concluded by stating that he did not consider therefore that Ms Kemppi can validly assert that she is able to protect the native title rights and interests of the Wangan and Jangalingou people in this application’. As a consequence the Court found that she would not suffer any prejudice if the injunction was not granted. ‘Put differently whatever prejudice she may suffer has already been brought about by the decision of the majority of the Wangan and Jagalingou People attending the meeting of 16 April 2016.’
[43] Affidavits filed by Adrian Burragubba and Elizabeth McAvoy deposed to the sites and features of significance within the surrender area. Mr Bradley Maher, Adani’s Indigenous Engagement Manager filed affidavits in response to those affidavits. Reeves J considered this evidence in paragraphs [44] – [54].
[55] Reeves J accepted the evidence of Mr Burragubba and Ms McAvoy about the sites and features located within the vicinity of the surrender area and accepted that they are likely to be affected by construction in the area. His Honour stated: ‘If any of the sites and features concerned are within the surrender area and if the native title in that particular area is extinguished, that could arguably have some consequences for access to, and control of, those sites.’ Those consequences are not specifically accommodated for under the Aboriginal Cultural Heritage Act 2003 (Qld). ‘The extinguishment that will occur by operation of cl 9(b) of the ILUA could be said to cause prejudice to Ms. Kemppi and her group.’ Reeves J therefore took that prejudice into account when determining whether or not the injunction should be granted.
The prejudice Adani claims it will suffer if the injunction is granted
[57] Adani claimed that any delay caused by the grant of the injunction would create uncertainty and reputational damage for the Carmichael project. Adani by way of affidavit evidence filed by its executives claimed it had spent more than $1 billion on the mine and more than $400 million on the railway line and the port components of the project. A further $18 million had been approved for release but construction would not commence until there was clarity around this proceeding. Counsel for Adani submitted that it had established a real risk of prejudice if the injunction was granted. The delay until the commencement of the trial would also need to consider the time for the Court to provide judgment.
[59] By way of reply, the evidence filed in support of Ms Kemppi stated that the ILUA and therefore the injunction only applied to a small area and not the total area of the project. Risks concerning financing of the project were also rebutted by stating that finance had not been assured for the project in any event.
[61] Reeves J in assessing the prejudice Adani might face if the injunction was granted stated that the delay would more likely be months rather than weeks to allow for the trial and judgment. His Honour did not place much significance on the delay of several months given construction projects were notorious for delays and his Honour assessed the impact as more than very small but not significant as Adani contended.
Ms Kemppi’s refusal to provide undertaking as to damages
[62] Ms. Kemppi refused to provide any undertaking as to damages and the impact that the injunction may have on third parties. [63] With respect to this refusal, Ms Kemppi submitted that this was an exceptional circumstance that justified refusal, namely that she was seeking to prevent the permanent extinguishment of her native title rights (see Rares J in Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 (Weribone)).
[65] Reeves J did not consider the decision in Weribone as justification for Ms Kemppi’s refusal. His Honour stated that in Weribone the Court itself took the initiative to make the so called ‘injunction orders’ in the public interest (see at [68] – [69] and [80]). Reeves J characterised those orders as more in the nature of preservation of property orders rather than interlocutory injunction orders sought by a party to a proceeding. Reeves J also noted that no party in Weribone sought an undertaking as to damages. And further as Rares J put it at [86]:
The discretion to grant an interlocutory injunction or similar remedy is ordinarily to be exercised only on the condition that an undertaking as to damages is offered. If it is not the Court will proceed very cautiously but may still consider that it should grant that relied without requiring an undertaking.’
Impact on third parties
[68] Ms Kemppi submitted that there would be no impact on third parties. [69] Adani submitted that there would be adverse impacts on the members of the Wangan Jangalingou native title claim group.
[73] Reeves concluded that in taking into account the assessment of the lack of strength of the ultimate success in this proceeding; the competing fundamentally different prejudices identified did not in his Honour’s view tip the balance one way or the other. Ms Kemppi’s refusal to provide an undertaking as to damages in support of her application meant that on the consideration of the balance of convenience and justice in this application the grant of an injunction was refused and the status quo preserved. [74] The Court ordered that the application be dismissed.