The Court orders that the applicants pay the first and second respondents’ costs of and incidental to this proceeding, to be taxed failing agreement.
This case concerns an application for costs, made by the applicants (Kemppi and others) who sought that there should be no order as to costs in the proceedings. The applicants argued:
relying upon the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the extinguishment of native title at the core of this proceeding was a matter of ‘singular public importance’;
the proceeding was being pursued to seek to protect the group native title rights of the Wangan and Jagalingou People from extinguishment; and thus proceeding in the public interest (Oshlack v Richmond River Council (1998) 193 CLR 72) rather than personal interests; and
the issues of statutory construction of s 203BE of the Native Title Act 1993 (Cth) and reg 7(2) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) were of great significance to present and future native title holders.
Adani, the first respondent, responded that:
the Declaration as an aspirational, non-binding international instrument was irrelevant, nor was it previously raised in the proceedings;
the proceedings were being pursued to protect personal and private rights and interests and thus the applicants did not raise a matter of public importance; and
the applicants had failed on all of the issues raised relating to statutory construction, and thus those construction issues ‘did not provide a special circumstance for the usual rule not to apply’ (at [2]).
Queensland South Native Title Services Limited (second respondent) echoed these contentions. The State of Queensland (third respondent) did not seek an order for costs and thus made no submissions on costs.
Reeves J considers the Declaration to be irrelevant. His Honour rejects the argument that the applicants were acting in the public interest, citing his view in Burrugubba v State of Queensland [2016] FCA 1525 at [15] in which ‘regardless of how large that [native title claim group] was, it cannot… be characterised as a “section of the public” in the Oshlack sense”. That is so because the interests concerned are quintessentially personal and private’ at [6].