North, Mansfield and Gilmour JJ
Background
The Yindjibarndi people had been in negotiations with FMG Pilbara Pty Ltd over applications for mining leases, which led to the publicised breakdown of negotiations and the split within the Yindjibarndi community. Before the Tribunal, the Yindjibarndi people argued that the mining lease would damage ceremonial sites, and that the interference with their religion was barred by s. 116 of the Constitution, which prohibits laws for restricting freedom of religion. The Tribunal determined that the future acts – the grant of those mining leases – could be done.
The Yindjibarndi people appealed that determination to the Federal Court, which upheld the Tribunal’s determination. The Yindjibarndi people appealed McKarracher J's decision to the Full Federal Court on administrative law grounds.
This appeal
The Full Court considered the Yindjibarndi people’s first ground of appeal that ‘the Tribunal erred by determining that s.38 and s.39 of the Act did not have the intention, design, purpose or effect of prohibiting or seeking to prohibit the free exercise of the applicants’ religion, contrary to s.116 of The Constitution’ at [59]. The Full Court rejected this ground and agreed with McKarracher J, who had followed the rule from Kruger v Commonwealth of Australia [1997] HCA 27; (1996) 190 CLR 1. This rule is that a law can only be invalid for inconsistency with s.116 if its purpose – not its effect – is to prohibit the free exercise of religion. [89]
The Full Court stated the appellants’ argument on international obligations at [62]: ‘that the Tribunal erred in law in determining that international instruments [the International Convention on Civil and Political Rights (ICCPR)] were irrelevant to its inquiry because there is no relevant ambiguity in s.39 of the Act’. This ground too was wholly rejected by the Full Court, which agreed with the lower Court that legislation is not to be interpreted by reference to international instruments when there is no ambiguity in the meaning of the statute. At [105] the Full Court said: ‘The language of these two sections leaves no room for the contention that the Tribunal is bound to come to a particular decision favouring the freedom to enjoy culture or practise religion…. the international obligations can provide no assistance to the construction of provisions which govern the scope of the Tribunal’s jurisdiction’. The Court said further that even if these sections were interpreted in line with the ICCPR, this would not have prevented the Tribunal’s finding of fact that the future act determinations, subject to certain conditions, would not result in preventing the appellants from exercising their religion [105].
Other matters
Counsel for the appellants also argued orally that McKarracher J had erred in finding that FMG had complied with the heritage protection legislation, because it had previously apologised to the Yindjibarndi people for bulldozing a significant site. The Full Court noted that the argument was not pleaded in this appeal, and affirmed the finding below that this is a matter of fact and not law.
The Court qualified the Tribunal's endorsement of a passage from Waljen (Western Australia v Thomas) (1996) 133 FLR 124) at 215 and 216, which heard detailed economic evidence and stated that there is public interest in mining. The Full Court commented at [138] that 'whilst it may be accepted that mining developments generally are in the public interest, it may be necessary in other circumstances for the Tribunal to consider the public interest in the particular project rather than by reference to the mining industry in general’.