Reeves, Perry and Abraham JJ
This case concerned an appeal to the Full Federal Court by Glencore of a decision by Katzmann J in Glencore Coal Pty Limited v Franks [2020] FCA 1801 to not release Glencore from a ‘Harman undertaking’ that prevented using a report from a previous native title claim. Glencore sought to use the report by an anthropologist, Dr Sackett, in proceedings for a claim by Scott Franks and Robert Lester acting as representatives of the Plains Clan of the Wonnarua People made under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘Heritage Act’). The land in question is located between Muswellbrook and Singleton in NSW, in close proximity to numerous Glencore mining tenements.
Background
The report in question written by Dr Sackett was prepared as part of an earlier native title determination (Scott McCain Franks & Anor on behalf of The Plains Clans of the Wonnarua People v Attorney General of New South Wales & Ors (NSD1680/2013, later NSD39/2019)). Between those proceedings and the first instance trial for these proceedings, Glencore tried to procure Dr Sackett’s services but Dr Sackett declined. The appellants and the court accepted that the principle of a Harman undertaking, that information not in the public domain cannot be used for a collateral purpose distinct from the proceedings through which the information was obtained, would apply to the case if the court did not issue an order to the contrary (Harman v Secretary of State for the Home Department [1983] 1 AC 280). Katzmann J declined to make an order to permit the Sackett report to be tendered as evidence.
Submissions
Glencore took issue with a number of grounds given by the primary judge, namely that Glencore using the report could: affect the willingness of First Nations peoples to co-operate in court processes, create the potential for unfairness or prejudice to the respondents or other First Nations peoples, and embarrass or prejudice Dr Sackett if released to the anthropologist preparing a report for the application under the Heritage Act as Dr Sacket refused to assist Glencore voluntarily. Further, Glencore alleged that her Honour was wrong to consider the Sackett report to have little relevance to the matters to be considered under the Heritage Act because, among other reasons, the respondents in this case had ‘pitched’ their application as representing the Wonnarua people, a claim which Glencore alleged the Sackett report could verify.
Decision
On the question of whether releasing the report from the Harman undertaking would deter Aboriginal people from participation in court processes, the court held this was a real possibility and that the strong public interest in preventing this deterrence weighed in favour of refusing Glencore’s application. On the questions of creating unfairness to the respondents or other First Nation people, the effect on Dr Sackett, and the question of relevance to matters to be considered under the Heritage Act, the court did not find an appellable errors. Therefore the court dismissed the application.