Edwards v Santos Limited [2010] FCAFC 64

Federal Court

Stone, Greenwood and Jagot JJ

This case concerned an injunction to prevent the granting of petroleum leases over a native title claim area. Edwards and others sought leave to appeal the decision which dismissed their application for an injunction to prevent the granting of petroleum leases over their native title claim area. The Full Court dismissed the application for leave to appeal a decision of the primary Judge. 

Two respondents, Santos and Delhi, hold an Authority to Prospect issued under the Petroleum Act 1923 (Qld) which covers land subject to the applicant's registered native title claims. The dispute between the parties arose during negotiations for an indigenous land use agreement (ILUA). The applicants sought a declaration that any such petroleum leases would not be a pre-existing right-based act under s 24IB of the Native Title Act 1993 (Cth). The applicant also sought an order preventing the State from granting any such petroleum lease to Santos or Delhi. The primary judge held that the application had no reasonable prospects of success.

The applicants claim that the primary judge erred in finding that the applicant's claim was premised on the proposition that the grant of a petroleum lease would be a future act. However, in the applicant's own submissions they contradict this. The submissions of the applicants are directed at establishing that the grant of a petroleum lease does ont fall within the subcategory of future acts that is exempted from the right to negotiate. A declaration that the grant does not fall into a particular subcategory would make no sense if it were not premised on the grant being a future act. The Full Court found the primary judge was correct in determining that the application was premised on the grant of a petroleum lease being a future act.

The decision was affirmed by the Full Federal Court which did not allow leave to appeal, for what it considered amounted to an ‘advisory opinion’. Edwards and others were native title claimants, and therefore did not yet have a legal or equitable interest to be protected. The order for Edwards and others to pay costs was also affirmed.