Colvin J
The Barngarla Determination Aboriginal Corporation RNTBC (BDAC) sought an injunction stopping the District Council of Kimba (Council), the local government authority for an area of land in the Eyre Peninsula in South Australia, from holding a community ballot pending the hearing of BDAC's appeal against a Federal Court decision dismissing BDAC's application.
The respondent was the Council. The Attorney-General of South Australia intervened.
Background
BDAC is responsible for administering the declared native title rights and interests of its members. The BDAC members' declared native title rights and interests apply to about 10% of the Council area.
Two sites within the area of the Council had been nominated as potential sites. Neither of the sites is the subject of declared native title rights and interests. However, the Barngarla People hold non‑exclusive native title over considerable parts of the Council area. Some of those parts are quite close to each of the two potential sites.
The Council was conducting a community ballot as part of a process being undertaken by the Commonwealth Minister responsible for selecting a site in Australia for a radioactive waste management facility. The ballot would comprise those people eligible to vote in Council elections under the Local Government (Elections) Act 1999 (SA) - residents and rate payers only. As rates are not assessed on native title interests BDAC members did not qualify on that basis. Native title holders would only be included if they separately qualified to vote as residents or ratepayers.
BDAC claimed that its members were excluded from the community ballot on the basis of their Aboriginality. BDAC argued that the Council was breaching the Racial Discrimination Act 1975 (Cth) by by failing to treat a native title interest as a sufficient interest to confer a franchise to vote in the community ballot, while allowing a freehold interest to be a sufficient qualification.
BDAC's claims had been rejected by the Federal Court on the basis that BDAC had not established that the members' exclusion was based on race: Barngarla Determination Aboriginal Corporation RTNBC v District Council of Kimba [2019] FCA 1092.
BDAC sought an injunction restraining the ballot pending the hearing of its appeal and asked the Council to defer the community ballot until the outcome of its appeal was known. The Council did not agree to delay the ballot until the appeal was determined.
Consideration
Colvin J considered the basis on which an application for an injuction pending an appeal could be granted and determined that BDAC's injunction application should be refused for the following reasons:
An applicant for an injunction pending an appeal must demonstrate that:
(a) the ultimate benefit of a successful exercise of the appeal right is in jeopardy if there is no injunction;
(b) there is sufficient strength in the argument that there was error in the primary decision to contemplate a restraint upon its being given effect; and
(c) a sufficiently serious consequence for the applicant if an injunction was not granted to justify depriving a party of the benefit of what is a considered determination of the issues after a final hearing.
Having considered the background to the proposed Council ballot and the evidence of members of BDAC the Court concluded that refusal of the injunction and conduct of the ballot would not render the appeal outcome futile.
The Court rejected the Council's argument that the injuction should not be granted as Minister was not obliged to consider or act on the result of the ballot. It found that there is potential future significance in the outcome of the ballot for the process being conducted by the Minister.
Colvin J noted that the real harm in any unlawful discrimination lay in the possible, perhaps likely, use of the ballot to guide the Minister's decision as an indication of the extent of overall community support for 'hosting the Facility in the Kimba community'. The Court found that until that point is reached there will be no further meaningful consequence over and above that which has already taken place.
Colvin J rejected BDAC's argument that there was a strong prima facie case for the appeal and the Council's arguments that the balance of convenience did not support the granting of the injunction.
Conclusion
The application for injunctive relief was refused but the Court noted that there may be good grounds for renewing the application in the future depending upon the intentions of the Minister about the steps to be taken once the outcome of the proposed ballot is known but before the appeal is able to be heard and determined.
Orders
The appellant's application for an interlocutory injunction be dismissed.
There be liberty to apply as to costs.