Banks-Smith J
In this matter the Court considered an application for an urgent interlocutory injunction by Goldfields Land and Sea Council Aboriginal Corporation (GLSC) to restrain the Commonwealth Minister for Indigenous Affairs (Minister) and the Assistant Secretary, Land Branch, Department of the Prime Minister and Cabinet (Assistant Secretary) from entering into a funding agreement or providing any funding to any party, other than Grant Thornton Australia Limited, for the performance of representative body functions under Part 11 of the Native Title Act 1993 (Cth)(NTA) until an appeal against a decision not to fund GLSC is determined.
Background
GLSC was formerly the native title representative body for the Goldfields region of Western Australia .
GLSC was appointed by the then Minister as the recognised representative body for the Goldfields region from 1 July 2016 until 30 June 2018. On 1 July 2018 GLSC ceased to be recognised as the representative body for the Goldfields region.
The Minister decided not to invite the applicant to apply for recognition as the representative body for the region for a further period (NTRB decision). Funding was made available to GLSC until 30 June 2019 while a suitable alternative native title service provider was sought (Funding decision).
GLSC sought judicial review of the NTRB decision, the Funding decision and the conduct of the Assistant Secretary in making the Funding decision.
The relevant Commonwealth agency, the National Indigenous Australians Agency (NIAA), planned to enter into a funding agreement with a third party, Native Title Services Goldfields (NTSG), to provide native title service until 30 June 2020.
GLSC sought an urgent injunction to prevent execution of the funding agreement pending the outcome of its judicial review application.
Consideration
The Court considered the relevant principles for seeking injunctive relief and the evidence and submissions filed by the parties.
Balance of Convenience
The Court found that:
GLSC brought its application late, and only after transitioning and appointment steps were significantly advanced.
GLSC was not carrying out native title services in the Goldfields region, had not been doing so for some months, and therefore did not need to be funded to do so.
The suggestion that the Ranger program would be prejudiced absent injunctive relief was not supported by the evidence.
The effect of funding ceasing on GLSC's charitable status was the subject of submission, but there was no evidence of any communications with the appropriate body or any real evidence as to other funding utilised or tasks undertaken.
The Court was not satisfied that GLSC had established that the refusal to grant injunctive relief would have a detrimental effect on it that outweighed the effect on the Minister and Assistant Secretary and third parties if the relief was granted.
The injunction would not cause the applicant to be funded pursuant to s 203FE of the NTA.
In relation to the Funding decision, the orders sought did not appear to take into account that funding had already been provided for the period post 1 July 2019 and relevant work had been undertaken.
GSLC failed to address the discretionary nature of the power of the Minister to recognise an eligible body as a representative body under s 203AD or the discretionary nature of the power of the second respondent to fund a native title service provider under s 203FE of the NTA.
In the Court's view the balance of convenience strongly favoured the Minister and Assistant Secretary.
Serious question to be tried
The Court had regard to the following allegations of GLSC:
The Minister failed to have regard to GLSC's email attaching a draft operational plan
There was prejudicial material contained in comments from a GLSC legal advisor and other parties which amounted to a denial of natural justice
There was impermissible conduct revealed by an email exchange between Department staff and the Assistant Secretary
The management of GLSC was wrongly considered by the Assistant Secretary
The Minister was wrongly involved in the Funding decision
The Court was not satisfied on the evidence and submissions that GLSC's position was sufficiently strong.
Banks-Smith J referred to a “clear tipping” of the balance of convenience in favour of the respondents.
The Court considered the direct losses (presently existing and future) that NTSG would suffer and GSLC had not provided an undertaking as to damages.
Banks-Smith J was particularly concerned about the position of native title claimants who were in the course of prosecuting their native title claims and were likely to be left unrepresented until February 2020. Regard was also had to the position of persons who had not yet made applications but were seeking to make native title determinations in the Goldfields region.
It was relevant that steps had been taken by NTSG to immediately undertake services, meaning it could engage with the community sooner, conduct relevant meetings with claimants and ensure the opportunity to progress the claims towards consent determinations. A lawyer had already been retained.
The delay on the part of the applicant in bringing the application for injunctive relief was also taken into account.
Banks-Smith J held that the risk of injustice was higher if the injunction was granted than if it was not.
Orders
The Court made orders that:
The application for an interlocutory injunction is dismissed.
The name of the barrister who sent the email dated 22 October 2018 as included in the affidavit of William John Eldridge filed 18 October 2019 is suppressed and may not be published and is to be redacted in any copy of the transcript other than that provided to the Court or the parties.
No person other than a party to the proceeding or their legal advisors may inspect any of the affidavits or submissions filed in this proceeding.
The evidence tendered at the hearing of 27 November 2019 is taken to have been tendered solely for the purpose of that hearing.
Costs reserved.