FEDERAL COURT OF AUSTRALIA

Burragubba v State of Queensland [2016] FCA 984

ORDERS

THE COURT ORDERS THAT:

1.    The third further amended originating application filed on 25 May 2016 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    Mr Adrian Burragubba is a member of the Wangan and Jagalingou People. Along with two others, he is also a member of the Applicant that the Wangan and Jagalingou People have authorised to make and pursue a native title determination application on their behalf under the apposite provisions of the Native Title Act 1993 (Cth) (the NTA). Henceforth, in these reasons, I will describe that native title determination application as the “Wangan and Jagalingou application” and the Applicant as the “WJ Applicant”.

2    In this proceeding, Mr Burragubba seeks to challenge a determination made on 8 April 2015 by a member of the National Native Title Tribunal (the Tribunal), the third respondent ([2015] NNTTA 16). That determination related to the proposed grant of two mining leases in the Galilee Basin in central Queensland.

3    The State of Queensland, the first respondent, proposed to grant the mining leases in question to Adani Mining Pty Ltd (the second respondent) in order to allow Adani to develop a large coal mine to be known as the “Carmichael Mine”.

4    Because the areas of the proposed mining leases are located within the claim area of the Wangan and Jagalingou application, they could only be validly granted under the NTA if, broadly stated, after negotiations with the representatives of the State, Adani and the Wangan and Jagalingou People, the latter agreed to those grants being made or, failing such an agreement, if the Tribunal made a determination under s 38 of the NTA that they may be made, with or without conditions.

5    This process of negotiation, agreement or, failing agreement, a Tribunal determination under the NTA is set out in Part 2, Division 3, Subdivision P (ss 25 to 44) and is generally described as the “right to negotiate process”.

6    To make his challenge to the Tribunal’s determination, Mr Burragubba has relied on the provisions of s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). He has advanced the four grounds which can be summarised as follows:

(a)    Adani’s conduct before the Tribunal was analogous to fraud in that it dishonestly misled the Tribunal by submitting the economic section of the Executive Summary to Environmental Impact Statement (EIS) for the Carmichael Mine project to the Tribunal and deliberately refrained from providing the expert’s reports that it had placed before the Land Court of Queensland, which drew materially different conclusions about the economic benefits that would flow from the project in terms of jobs and economic activity (ground 1).

(b)    The Tribunal erred in construing the provisions of s 39(1) of the NTA and, as a consequence, improperly failed to take account of certain materials that Mr Burragubba and another person had placed before it (grounds 2 to 4 inclusive).

It is important to record at the outset that Mr Burragubba’s position in this proceeding was not supported by the other two persons who, at the time, made up the WJ Applicant.

7    While the Tribunal itself is also a respondent in this proceeding, in accordance with the usual practice, it has filed a submitting appearance.

The factual background

8    Before analysing the Tribunal’s Reasons for determination (the Reasons), it is convenient to describe the complex factual background to this proceeding. In the course of this description, I will also identify the apposite provisions of the NTA as they arise.

The filing and registration of the Wangan and Jagalingou application

9    The Wangan and Jagalingou application was originally filed in the Court on 27 May 2004. It was registered on the Register of Native Title Claims (s 190(1)(a)) on 5 July 2004. It covers an area of approximately 30,277.6 square kilometres located on the western edge of central Queensland and includes the townships of Clermont, Alpha, Rubyvale and Capella. The native title rights and interests described in the entry relating to the Wangan and Jagalingou application on the Register of Native Title Claims (s 186(1)(g): see further below at [14]) are important because those rights and interests are central to the operation of the right to negotiate process in Subdivision P (see further at [11]–[26], [247]–[261] below). That entry describes those rights and interests in the following terms:

Rights and Interests

1.    Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where s238, ss47, 47A or 47B apply), the Wangan and Jagalingou People claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.

2.    Over areas where a claim to exclusive possession cannot be recognised the Wangan and Jagalingou claim the following rights and interests:

(a)    To access, be present on, move about on and travel over the area

(b)    To camp on the area and for that purpose, erect temporary shelters on the area

(c)    To hunt, fish and gather on the land or waters of the area for personal, domestic and non-commercial communal purposes

(g)    To have access to, take and use natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes

(i)    To conduct ceremonies in the area

(j)    To maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places

(k)    Teach on the area the physical and spiritual attributes of the area

(l)    To be buried or bury native title holders on the area

(m)    To live on the application area

(n)    To move about the application area

(p)    To make decisions about the use and enjoyment of the area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged and observed by the native title holders

(q)    To transmit the cultural heritage of the native title claim group including knowledge of particular sites

The native title rights are subject to and exercisable in accordance with:

(a)    The valid laws of the State of Queensland and the Commonwealth of Australia;

(b)    The traditional laws acknowledged and the traditional customs observed by native title holders.

10    It is unnecessary, for the purpose of this proceeding, to describe what has, or has not, occurred in the progress of the Wangan and Jagalingou application in the 12 years (approximately) since it was originally filed.

The right to negotiate process begins

11    On 9 October 2013, the State gave notice under s 29 of the NTA of its intention to grant the two mining leases mentioned above (ML70505 and ML70506) to Adani. That notice marked the commencement of the right to negotiate process referred to above. Such a notice is necessary where the Commonwealth, or a State or a Territory proposes to undertake a future act (as defined in s 233) of a kind described in s 26. In this instance, the grant of the two mining leases was such a future act. In particular, it was of a kind described in s 26 of the NTA because it involved the “creation of a right to mine … by the grant of a mining lease” (see s 26(1)(c)(i)). Section 29(4) of the NTA requires such a notice to specify a notification day. 30 October 2013 was the notification day stated in this notice. The notice contained some other pertinent details as follows:

(a)    that the first proposed lease (ML70505) covers approximately 16,960 hectares (169.60 square kilometres) located approximately 144 kilometres north west of Clermont within the Isaac Regional Council;

(b)    that the second proposed lease (ML70506) covers approximately 1588 hectares (15.58 square kilometres) located approximately 173 kilometres West North West of Clermont within the Isaac Regional Council;

(c)    that the grant of the leases would authorise Adani to mine and carry out associated activities under the Mineral Resources Act 1989 (Qld) (Minerals Act) for a term not exceeding 30 years with the possibility of renewal for a term not exceeding 30 years.

12    The negotiation process that is set in train by a s 29 notice (assuming the expedited procedure in s 32 does not apply, which it did not in this instance) is described in s 31(1) of the NTA in the following terms:

(a)    the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and

(b)    the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

(i)    the doing of the act; or

(ii)    the doing of the act subject to conditions to be complied with by any of the parties.

13    The “negotiation parties” for the purposes of s 31(1)(b) above are prescribed by s 30A of the NTA as: the Government party; any native title party; and any grantee party. In this matter, the Government party (defined by s 26(1)(b)) was the State, and the grantee party (defined by s 29(2)(c)) was Adani.

14    Sections 29(2) and 30(1) of the NTA identify the persons who comprise the “native title party”. In this matter, because there was no registered native title body corporate in relation to any of the area in question (s 29(2)(a)), the only native title party was the “registered native title claimant” (s 29(2)(b)(i)) for the Wangan and Jagalingou application. The expression “registered native title claimant” is defined in s 253 of the NTA to mean: “in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters”. The words “a person or persons” are plainly intended to accommodate the circumstance that often occurs of more than one person being authorised by a native title claim group to constitute the applicant. The same terminology is used in s 61(1) and s 251B. The Register of Native Title Claims is established under s 185 and the Native Title Registrar is required under s 190 to maintain that Register. Section 186 prescribes the information that must be included in the Register. Under s 186(1)(d), the Register must contain “the name and address for service of the applicant”. This is the only mention of the expression “the applicant” in s 186.

15    The other entry in the Register that is of importance in this matter has already been mentioned above (at [9]): the native title rights and interests under s 186(1)(g).

16    The information recorded in the Register for the Wangan and Jagalingou application (as at 7 August 2014), insofar as it related to s 186(1)(d), was as follows: “Applicants: Adrian Burragubba, Patrick Malone, Irene White”. It should be noted that the use of the plural “Applicants” in this entry is not consistent with the definition in s 253, nor s 61(2)(c) of the NTA where the singular expression “applicant” is used.

17    The entry above was altered to that form following orders made by Collier J on 7 August 2014 under s 66B of the NTA. Those orders replaced the seven existing members of the WJ Applicant with the three persons named in the entry above. It should be noted that Mr Malone and Ms White were among the seven previous members of the WJ Applicant, so Mr Burragubba became the only new member under those orders. For completeness, I also note that on 21 August 2015, after the Tribunal’s determination was made, I made orders under s 66B of the NTA replacing the abovementioned three members of the WJ Applicant with 12 members, including the three existing members named above.

18    At this stage, in order to avoid entering the controversy as to the meaning of the expression “native title party”, I will refer to the registered native title claimant or, to use the words of the definition in s 253, the person or persons whose name or names appear as the WJ Applicant in the entry on the Register as: the Wangan and Jagalingou native title party.

Adani applies to the Tribunal

19    Section 35(1) of the NTA places a six months time limit on the negotiation process prescribed by s 31. It provides:

Any negotiation party may apply to the arbitral body for a determination under section 38 in relation to the act if:

(a)     at least 6 months have passed since the notification day (see subsection 29(4)); and

(b)    no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act.

20    In this matter, the Tribunal was designated as the arbitral body under s 27(2)(b) of the NTA. Section 75 of the NTA confirms the right of a negotiation party to make such an application to the Tribunal and describes the application as a right to negotiate application.

21    On 10 October 2014, relying upon the above provisions, Adani applied to the Tribunal for a determination under s 38 of the NTA. It actually filed two applications, one with respect to each mining lease (ML70505 and ML70506).

22    There were, in this matter, only three kinds of determination open to the Tribunal under s 38(1) of the NTA. They were:

(a)    a determination that the act must not be done;

(b)    a determination that the act may be done;

(c)    a determination that the act may be done subject to conditions to be complied with by any of the parties.

23    Section 36(1) of the NTA requires the Tribunal to “take all reasonable steps to make a determination in relation to the act as soon as practicable”.

24    Section 36(2) permits a negotiation party to attempt to satisfy the Tribunal that any other negotiation party did not negotiate in good faith, as required by s 31(1)(b) (above). While this matter was the subject of certain directions the Tribunal member made on 23 October 2014 (see at [27] below), none of the parties subsequently sought to raise it as an issue in Adani’s right to negotiate applications.

25    Part 6, Division 5, Subdivision B of the NTA sets out the procedural requirements the Tribunal must follow when it is conducting an inquiry in relation to, among other applications, a right to negotiate application. In particular, s 141(2) provides that “[t]he parties to an inquiry in relation to a right to negotiate application are the Government party, the native title parties and the grantee parties”. That is, in this matter, the State, the Wangan and Jagalingou native title party and Adani, respectively. Section 143 provides that “[a] party may appear in person or may be represented by a barrister, a solicitor or another person”. Subject to various provisions that are not relevant for present purposes, s 142 provides that the Tribunal:

must ensure that every party is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in making a determination in the inquiry and to make submissions in relation to those documents.

26    Finally, s 151(2) of the NTA allows the Tribunal to make a determination “on the papers”. That is:

by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.

The Tribunal’s directions

27    On 23 October 2014, the Tribunal member convened a preliminary conference of the parties to Adani’s right to negotiate applications. Putting aside matters that are not relevant for present purposes (see at [24] above), at that conference, the Tribunal member made the following directions requiring the parties to submit their statements of contentions and supporting materials addressing the criteria outlined in s 39 of the NTA:

6.    On or before 16 January 2015 the Grantee Party and the Government Party are to provide to the Tribunal and each of the other parties:

(a)    a statement of contentions, in particular addressing the criteria relevant to them in section 39 of the Native Title Act 1993 (Cth) including:

(i)    the nature of the proposed mining lease, in as much detail as possible;

(ii)    the economic or other significance of the grant to Australia, the State or Territory concerned, the area in which the land or waters concerned are located, and the Aboriginal or Torres Strait Islanders who live in that area; and

(iii)    any public interest in the granting of the mining lease.

(b)    a list of documents or evidence intended to be relied upon concerning land access and use, with copies of such documents provided to the Tribunal. Where practicable copies of these documents should also be provided to the other parties. Documents should include:

(i)    details of the current land tenure and mining, petroleum and geothermal tenure in the vicinity of the land;

(ii)    copies of the current land tenure and mining, petroleum and geothermal tenure title documentation in the vicinity of the land;

(iii)    copies of any relevant mining tenement documents, operational or other reports in relation to the mining lease; and

(iv)    where possible, a topographical map of the area of a scale 1: 100,000 identifying the location of the proposed mining tenement and the mining tenements in its vicinity marked on it.

(c)    any documents or evidence intended to be relied upon concerning any area or site which may be relevant for the purposes of s 39(1)(a)(v), including for example, any information available from the Aboriginal Cultural Heritage Database or Register under the provisions of the Aboriginal Cultural Heritage Act 2003 (Qld).

(d)    a statement of the evidence to be given by any witness for the party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.

7.    On or before 30 January 2015 the Native Title Party is to provide to the Tribunal and each of the other parties:

(a)    a statement of contentions addressing:

(i)    the effect (if any) of the grant of the proposed mining lease upon the following matters (referred to in section 39(1)(a) of the Native Title Act 1993 (Cth)):

A.    the enjoyment by the Native Title Party of their registered native title rights and interests;

B.    the way of life, culture and traditions of the Native Title Party;

C.    the development of the social, cultural and economic structures of the Native Title Party;

D.    the freedom of access by the Native Title Party to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance conducted on the land or waters in accordance with their traditions; and

E.    any area or site, on the land or waters concerned, of particular significance to the Native Title Party in accordance with their traditions.

(ii)    the interests, proposals, opinions or wishes of the Native Title Party in relation to the management, use or control of the land or waters in relation to which there are registered native title rights and interests of the Native Title Party that will be affected (section 39(1)(b));

(iii)    whether the Native Title Party contends that any of the matters referred to in subsections 39(1)(c) to (f) are relevant to the inquiry and, if so, an outline of the Native Title Party’s contentions in relation to each of those matters; and

(iv)    whether the Native Title Party contends that the Tribunal should impose a condition for an amount to be paid into trust on account of a future determination of compensation.

(b)    a list of all documents or evidence intended to be produced, with copies of such documents provided to the Tribunal. Where practicable copies of these documents should also be provided to the other parties;

(c)    a statement of the evidence to be given by any witness for the Native Title Party, verified where possible by affidavit, and the details of where the Native Title Party proposes that the evidence be heard if the matter is not to be heard on the papers; and

(d)    where there is an issue relating to the confidentiality of documents or evidence and where evidence will need to be given in restricted circumstances, a statement of the nature of such documents and evidence and the proposed arrangements for the hearing of the evidence.

28    Section 39 of the NTA is critical in this proceeding. It provides:

(1)    In making its determination, the arbitral body must take into account the following:

(a)    the effect of the act on:

(i)    the enjoyment by the native title parties of their registered native title rights and interests; and

(ii)    the way of life, culture and traditions of any of those parties; and

(iii)    the development of the social, cultural and economic structures of any of those parties; and

(iv)    the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v)    any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

(c)    the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

(e)    any public interest in the doing of the act;

(f)    any other matter that the arbitral body considers relevant.

Existing non‑native title interests etc.

(2)    In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and

(b)    existing use of the land or waters concerned by persons other than the native title parties.

Laws protecting sites of significance etc. not affected

(3)    Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

Agreements to be given effect

(4)    Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

(a)    must take that agreement into account; and

(b)    need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.

The materials submitted

29    On 16 January 2015, the State and Adani submitted their statements of contentions, together with their supporting materials, to the Tribunal. As required by paragraph 6(a)(ii) of the directions, Adani’s statement of contentions addressed the “economic or other significance” of the grant of the mining leases with reference to the criterion in s 39(1)(c) above. On that matter, it stated:

3.51    In Queensland Gas Company Limited & Ors / Iman People #2; Mandandanji People / Queensland [2010] NNTTA 210 at [78] the Tribunal applied 3 relevant factors to section 39(1)(c) from [70]-[73] of Cameron / Hoolihan & Ors (Gugu Badhun) / Queensland [2006] NNTTA 3:

(a)    how the proposed future act will impact on the economies and persons specified;

(b)    the ‘significance’ of granting the right to mine (act) must be viewed in an expansive sense and not purely and necessarily from the quantum of money that will be generated; and

(c)     the significance of the proposed act to indigenous persons living within close proximity to the proposed tenement. For example, it may be that a proposed mine will generate jobs and related benefits to indigenous Australians who live nearby whether or not they are members of the claim group.

3.52    The Grantee Party submits that the grant of each of ML 70505 and ML 70506 will have highly significant positive economic impacts on the country, the State and the local region. The likely economic benefits can be divided into two distinct categories, being:

(a)    the primary, direct economic benefit resulting from the Project’s:

(i)    expenditure in the community;

(ii)    employment of personnel;

(iii)    direct payment of taxes, State royalty and infrastructure charges; and

(iv)    use of resources within the community, surrounding region and the State of Queensland; and

(b)    the indirect economic benefits that will flow chiefly from increased spending and employment in service industries.

3.53    Specifically, the capital investment for the life of the mine is expected to total $21.5 billion. Construction of the mine component of the Project is expected to generate on average over the construction years $78.2 million per annum in direct and indirect benefits on the Mackay region’s Gross Regional Product (GRP), a considerable proportion of which will be direct benefits such as purchase of local materials or services. For the State as a whole, impacts on average over the construction period are estimated to be $203 million per year.

3.54    The construction phase also provides considerable benefits to household income and employment. On average, construction will generate an additional 378 full time equivalent jobs per year within the Mackay region and 1,192 full time equivalent jobs for Queensland.

3.55    The operational phase of the mine component of the Project will see benefits that increase in line with production rates for coal. At the point of full production (60 Mtpa), total impacts on GRP, for that year, in the Mackay region will reach an estimated total of $3,795 million and at a State level $4,170 million. Benefits to household incomes within the region will reach an estimated total of $372.2 million and State wide $573.5 million. Employment levels locally are forecast to see an increase of 4,093 full time equivalent jobs and State wide 6,789 full time equivalent jobs.

3.56    The grant of each of ML 70505 and ML 70506 would also allow works to proceed on the rail aspects of the Project.

3.57    In this regard, construction of the rail infrastructure is expected to generate on average over the construction years $145 million per annum in direct and indirect impacts on the Mackay region’s GRP. For the State as a whole, the direct and indirect benefits generated by the construction of the rail infrastructure is estimated to be $229 million per year. The construction phase also presents considerable benefits in terms of household income and employment. On average construction will generate an additional 1,451 full time equivalent jobs within the Mackay region and 2,481 full time equivalent jobs for Queensland. Benefits during the construction period will be most significant during the first and second years of construction.

3.58    The operational phase of the rail component of the Project will see impacts that increase in line with production rates of the Mine. At the point of full production (60 Mtpa), total impacts per year on GRP, for that year, in the Mackay region are expected to reach an estimated total of $176.6 million and at a State level $274.1 million. Benefits to household incomes within the region will reach an estimated total of $107.2 million and State wide $157.9 million. Employment levels locally are forecast to see an increase in full time equivalent jobs of 1,215 and State wide 2,025 full time equivalent jobs.

3.59    The Project will also include significant port expansion works, activities that will also generate substantial economic and social benefits for the State and the local region.

3.60    The matters detailed at paragraphs 3.53 to 3.58 above are set out in the Grantee Party’s EIS, a copy of the Executive Summary of which is attached at Annexure K. The complete EIS may be accessed at www.adanimining.com/EIS-PDFDocs-Listing.

3.61    The grant of each of ML 70505 and ML 70506 will also have positive societal impacts on the local economy resulting from the influx of new people into the regional community as a direct result of the economic activity the Project is expected to generate.

3.62    The distribution of the impacts on the local and State economics will be overwhelmingly positive, with further positive impacts felt nationally and internationally. In order to ensure the local and State economies reap the maximum possible benefit from development of the Project, and to mitigate the potential adverse impacts on the region, the Grantee Party will put policies and measures in place to ensure these economies retain as many of the benefits as possible. Such measures will include strategies for increasing local participation in regional and Queensland based industry as well as for encouraging the participation and up-skilling of disadvantaged groups.

(Emphasis in original)

30    Annexure K (referred to at [29(3.60)] above) was entitled “Environmental Impact Statement, Executive Summary”. It was a 46 page document divided into 12 sections: E.1 to E.12. Section E.5 dealt with Economics, as follows:

An economic assessment of the Project on has been undertaken, measured through a range of economic indicators namely: Gross Regional Product (GRP); household income and employment. The capital investment for the life of the Mine is expected to total $21.5 billion.

Construction of the Project (Mine) is expected to generate on average over the construction years $78.2 million per annum in direct and indirect impacts on the Mackay regions GRP, a considerable proportion of which will be direct benefits such as purchase of local materials or services. For the State as a whole, impacts on average over the construction period are estimated to be $203 million per year. The construction phase also provides considerable benefits to household income and employment. On average, construction will generate an additional 378 full time equivalent (fte) jobs per year within the Mackay region and 1,192 fte jobs for Queensland.

The operational phase of the Project (Mine) sees benefits that increase in line with production rates for coal. At the point of full production (60 Mtpa) total impacts on GRP, for that year, in the Mackay region reach an estimated total of $3,795 million and at a State level $4,170 million. Benefits to household incomes within the region will total $372.2 million and State wide $573.5 million. Employment levels locally will see an increase of 4,093 fte and State wide 6,789 fte.

Construction of the rail infrastructure is expected to generate on average over the construction years $145 million per annum in direct and indirect impacts on the Mackay regions GRP. For the State as a whole, this is estimated to be $229 million per year. The construction phase also presents considerable benefits in terms of household income and employment. On average construction will generate an additional 1,451 fte jobs within the Mackay region and 2,481 fte jobs for Queensland over the construction period. Benefits during the construction period will be felt most vigorously during years one and two.

The operational phase of the Project (Rail) sees impacts that increase in line with production rates of the Mine. At the point of full production (60 Mtpa) total impacts per year on GRP, for that year, in the Mackay region reach an estimated total of $176.6 million and at a State level $274.1 million. Benefits to household incomes within the region will total $107.2 million and State wide $157.9 million. Employment levels locally will see an increase in fte of 1,215 and State wide 2,025.

The distribution of the impacts on the local and State economies are mostly positive, with further positive impacts felt nationally and internationally. In order to ensure the local and State economies reap the maximum possible benefit from development of the Project and to mitigate the potential adverse impacts on the region, policies and measures will be put in place to ensure these economies retain as many of the benefits as possible. Such measures include strategies for increasing local participation in regional and Queensland based industry as well as for encouraging the participation and up-skilling of disadvantaged groups.

I have set this material out in full because it is at the heart of Mr Burragubba’s claim that Adani dishonestly mislead the Tribunal.

31    As required by the Tribunal’s directions above (at [27(7)]), the Wangan and Jagalingou native title party was required to submit its statements of contentions and supporting materials by 30 January 2015. Instead, on 23 January 2015, its appointed representative, Ms Rosenman, of Chalk & Fitzgerald Lawyers, sent an email to the Tribunal, the State and Adani stating “we have today had instructions that the native title party will not be making any submissions in relation to the grant of the two mining leases in question”.

32    In early February 2015, the appointed representatives of each of the parties notified the Tribunal member in writing that they preferred the Tribunal’s determination to be made on the papers under s 151 of the NTA (see at [26] above). Subsequently, the Tribunal member decided to proceed in that manner.

Mr Burragubba’s statement

33    On 5 February 2015, Mr Burragubba sent an email to the Tribunal which attached a statement headed as follows:

Wangan and Jagalingou Families Representative Council

Statement by the Wangan and Jagalingou People about the Carmichael Mine

To the National Native Title Tribunal

CC:Adani Mining P/L (Mining Party); Queensland Government (State Party)

34    While this statement is quite lengthy, because it is central to three of Mr Burragubba’s four grounds of challenge in this proceeding (see at [6(b)] above), it is appropriate that I should set it out verbatim as follows:

THE Wangan and Jagalingou people are the common law holders of the Carmichael Mine land. We wish to speak about the damage this mine will do to our people and our culture. We will tell you something about our culture and sacred beliefs so that you can understand our frustration with the legal processes and the unwillingness of government and Adani to listen to us and respect us.

We have made our position clear- Wangan and Jagalingou Families Representative Council are resolved to maintain the claim group’s position of no ILUA with Adani; and to publicly oppose Adani’s proposed Carmichael mine because of its devastating impacts on the group’s native title, ancestral lands and environment and cultural heritage.

We state that, as first nations people, we will defend our rights as sovereign owners and custodians, protect our ancestral land inheritance, and maintain our rights and interests in and on our Country. We will take necessary actions to protect our rights and interests.

Adrian Burragubba speaks on behalf of Wangan and Jagalingou Families Representative Council. He has knowledge that was passed on to him through the elders of his father’s people from when he was a small boy. They taught him the law. The land teaches him and the Wangan and Jagalingou people how to belong, when to sing or dance or practice culture. This is what the Wangan and Jagalingou people say about the mine.

This mine will forever damage Wangan and Jagalingou sacred country. The sacred beliefs of our culture, our religion, is based on where the song lines run through our country. These song lines connect us to Mother Earth. Trees, plants, shrubs, medicines we know are on country, waterholes, animals, habitats, aquifers- all have a special religious place in our land and culture and are connected to it. Our spirits and the spirits of our ancestors travel above through and under the ground of our country. They dwell there indefinitely.

Harming the environment, the country, the landscape, the ecosystems, the dependent species, is harming our sacred beliefs and spiritual connections.

The Carmichael Mine site is part of a large number of sacred and archaeological sites that exist in the country of the Wangan and Jagalingou people. The Queensland government knows about this but will not help protect our sacred lands and it does not speak of what it knows. Adani is only interested in the mine and does not respect our culture and religion. Adani’s leader will not show us the respect of talking with our elders and law men.

We will say something about our sacred beliefs and land.

Many sites in Wangan and Jagalingou country are associated with Ancestor Dreaming Totems and other totemic beings that manifest through certain natural species for the Wangan “babbing bura” (Bottletree people) the Possum, Bee and Sand Goanna are said to own fire and the (kidji)tree.

The Jagalingu [sic] “Woccullabura” (Eel people) are said to own the Sandalwood tree for ceremony and the ownership of water are associated with Carpet Snake, Scrub Turkey and Echidna. These are moiety classifications throughout Wangan and Jagalingou. All people, animals and plants are classified into moieties, the classification defining rights to land and resources, and defining kin relations. The term bigun relates to totems. Every bigun relates to land interests and associated decision-making and ceremonial responsibilities derived from relationship to land through either Mother’s Father or Father’s Mother.

We the Wangan and Jagalingou people believe that any damage to the integrity of our moiety dreaming would have catastrophic consequences for all Aboriginal and non-Aboriginal people in the region. Any damage, regardless of the perpetrator, attracts sanctions from other members of the regional Aboriginal societies. The law is you don’t kill your totem whether it is an animal or a tree. Our law protects us and maintains social order. Offences against our law and custom are offences of strict liability. They are serious, but remain unrecognized in Australian law. The forms of customary punishments included death, corporal punishment (including spearing), shaming and banishment. Because such punishments no longer exist does not mean the offences are no longer serious.

Our sacred connection starts at our place of birth. There, the child is given a representative animal, bird or reptile totem, either a social totem, or a dreaming totem they are forbidden to eat such creatures or their eggs as this would infringe our Law as you could die from eating your totem in most cases our people would go hunger for this reason. The Jagalingou (Woccullabura) belonging to the Gummoo Gummoo (Rain) Totem. The rain totem is connected to a tree totem. The tree totem for the Jagalingou (Wakeelbuhra) people is the Waxy Cabbage Palm and the Melaleuca – rain trees. They only come to life and flower in water. The dreaming totem Mundunjudra lives in the water, resides and moves and travels in and through the land. The dreaming totem comes from Gurri (the sun). In the Jagalingou country, spiritual ancestors who come up from under the ground and travel in and through the land at sacred sites associated with the Rainbow Serpent known as the Mundunjudra. The Rainbow Serpent has power to control Wangan &Jagalingou sites where our people are born into their bigan (Totem) this has been so since the beginning of the creation period. We have ceremony near these trees to pay respect to our water Totem the (Eel). When we marry we are betrothed to a different moiety than our own. Even before birth we are promised to someone close to our estate but not within. Death signifies a return to the spirit dreaming so from birth you are connected to that tree. You are also buried with that tree. It is the totemic spirit being that can take you back to your dreaming.

Wangan & Jagalingou ceremonies and rituals are performed at sacred places like the Doongmabulla Springs and along the Carmichael River. They are performed to obtain access to the Ancestral Beings for example Mundunjudra (water spirit) and to spiritual powers that come from our Totemic beings. The ceremonies and rituals give access to animal spirit beings that go through your body at birth and connect you to your Moiety under our law of the Wangan & Jagalingou. Our people are responsible for protecting these birthing sites in accordance with our systems of law.

The djala ceremony or (Yangaru), red Kangaroo was the last in the sacred ritual series of the Wangan & Jagalingou region and its ceremonies in terms of the sequence. By those ceremonies, those born to that skin Banbari/Kargilah and their totem tree and animal totem carry the terms on which the owner clans are defined. An owner clan member is any person who was a member by local descent and is responsible to protect the trees, animals and water under our law and our group. The group has a common spiritual affiliation to a site on the land and the owner clan has primary spiritual responsibility for that site. Group members are entitled by tradition to forage upon the land associated with the local descent group ..

This ancient connection, through to the present, endows us with the knowledge of our traditional ownership and of our distinct identity as Wangan & Jagalingou peoples – the Weirdi speaking people – the Aboriginal peoples of the area covered by the proposed Carmichael mine.

Wangan & Jagalingou have in the past exercised and enjoyed our customary laws and practices in our lands including the area of the Carmichael Mine. We still do so to this day. We want to in the future but this Mine will damage our rights and offend our spiritual beliefs because of the destruction it will cause to the land and the waters on the mine site and around it and also the wider region.

The impacts of the mine and the various leases are not limited to the places on which they sit; especially because of the way water flows through and connects vast interlocking landscapes and our neighboring peoples’ lands. Our neighbouring tribes also have similar stories of their connection through the Water Spirit, referred to regularly as Moonagudda or Mundunjuda. We will not subject our Country and that of others to ‘death by a thousand cuts’. Our law (and lore) embodies a ‘seamless web of cultural landscape’ – this is our Country; and it must be cared for and managed.

This mine will forever interfere with our way of life and culture and traditions. It will have negative impacts on our social, cultural and economic structures. We know this because of the way Adani has treated us. We know this because of what is proposed for the future. It has not listened to us and does not respect our views. We have seen damage already in country under cultural heritage management plans. Adani and the State Government have not offered anything meaningful to protect and secure the future of our country and our sacred connection. The price Adani is asking us to pay includes silence in the future - not being able to object to anything they do.

This runs against our rights as Aboriginal people – rights described in the United Nations Declaration of the Rights of Indigenous Peoples, to which Australia is a signatory.

We assert our right to free, prior, informed consent; to our own economic development; to protection of our country and culture – and object to the way in which our rights are systematically over-ridden in the process by which the State grants mining interests, and the Tribunal is restricted by the law; and in the way Adani negotiates with us. While the legal system may weigh against us – when we say No, we mean No.

We realise we are up against the power and wealth of a massive global corporation and a State government. We realise that the Tribunal is influenced in its decision by the idea that the public interest is in having an expanding mining industry and therefore other interests don’t get a look in. We cannot afford to continue a case where we do not have the resources to put our objection to the Tribunal and the cards are already stacked against us. It is better not to participate at all. Adani has the benefit of a system that does not respect our rights as Aboriginal peoples – the right to our lands and resources; the right to conservation and protection of the environment; the right to practice our law and customs; the right to live in freedom, peace and security.

The association of Wangan & Jagalingou with the Rainbow Serpent (the Water Spirit) promotes the collective right to live in freedom, peace and security as distinct peoples with our own cultural values. The Wangan & Jagalingou people have reluctantly decided that we are unable to continue to participate in the Tribunal proceedings. These proceedings and the legislation under which they are held do not advance our right to live in freedom, peace and security as distinct peoples with our own cultural values.

For these reasons our lawyers were asked to tell the tribunal that we can no longer participate in these proceedings.

35    As the Tribunal records in its Reasons, this statement was not signed. However, it contained the following notation at the end of it:

Adrian Burragubba, Wangan and Jagalingou Traditional Owner

On behalf of the Wangan and Jagalingou Families Representative Council

Monday 2 February 2015

36    On 6 February 2015, the Tribunal member sent an email to each of the representatives of each of the parties to Adani’s applications and to Mr Burragubba noting, in relation to Mr Burragubba’s statement, that:

[T]he compliance date had passed; the native title party’s representative had previously confirmed no material would be submitted; no extension request had been submitted; and all parties had confirmed their preference for the decision to be made on the papers.

37    Nonetheless, the Tribunal member requested that, by 11 February 2015, each party submit its views on whether Mr Burragubba’s statement should be considered as part of the decision-making process on Adani’s applications.

38    On 11 February 2015, the Tribunal’s Reasons record that:

The native title party emailed the Tribunal … confirming ‘we are instructed by the applicant for the native title party that the [Tribunal] member should not consider the statement of Mr Burragubba as part of the decision making process in relation to the applications. We advise that the earlier decision by the native title party applicant not to make a submission on the grantee party’s applications for the grant of the two mining leases was unanimous as between each member of the native title party applicant’.

39    On the same date, the State sent an email to the Tribunal member stating that it was of the view that “the issue of whether [Mr Burragubba’s statement] should be considered is one for the Native Title Party as it has the specific facts relating to how the Statement came into being and its authenticity”. As well, Adani sent an email to the Tribunal member stating that its position was that:

the [Tribunal] must determine whether the document is relevant to the determination having regard to those factual matters and that the Document (Mr Burragubba’s statement) did not contend that the position of the native title party has changed (from Ms Rosenman’s advice on 23 January 2015 that no material would be submitted), or that the relevant future acts not be done … [However] if the document is found to be relevant in making the future act determinations, [Adani] requests the opportunity to respond to it and requests that appropriate weight be given in the context of the factual circumstances explained.

40    On 12 February 2015, Mr Burragubba sent an email to the Tribunal quibbling with certain of the statements in the Wangan and Jagalingou native title party’s email (see [38] above):

I wish to clarify a number of matters.

As a member of the Applicant, I put forward my view to our legal representative yesterday. The view of the Applicant conveyed to you was not a unanimous position of the members arrived at by consensus, as the rules governing the Applicant provide for in the first instance. As no collective discussion took place between the members of the Applicant to give direction to our legal representative, I thought it important to put my position to you directly.

As I stated in writing to the other members of the Applicant and our legal representative, my view is this:

The statement is a faithful representation of the Family Council’s position, which itself is in accord with the decisions of the Claim Group. It is self-explanatory. It is not an objection under the terms of the order. While it may be a little bit unconventional it is not a breach of anything.

For the record, the following is my position; and I also believe it is in the interests of the Applicant, in relation to the Family Council and the W&J Claimant, to adopt the same. I therefore proposed the response be –

“The W&J applicant doesn’t have a position on the Family Representative Council’s statement submitted by Adrian Burragubba, and takes the view that it is entirely a matter for the Tribunal to consider and respond to the statement”.

Further, the State Party’s response shows a misunderstanding of our decision structure and the importance of the W&J Family Representative Council and its role; and the importance of the Applicant abiding by the guidance of the Family Council. The Council is central to the collective governance of the W&J people in between meetings of the Claim Group; and provides resolutions and advice for the Applicant to consider when making the decisions it is authorised to make. Ignoring the Council is a serious concern for us; and a contrary direction taken by the Applicant needs to be fully explained. This has not occurred so far in relation to this matter.

At a meeting of the W&J Family Representative Council on the 24th October, convened by Qld South Native Title Representative Body, the Council resolved that the applicant should object to Adani’s application for a determination. In this, the W&J Family Representative Council was acting consistently with a resolution dealt with by the Claim Group at the authorisation meeting on 5 October 2014, when the Adani ILUA was rejected. The Applicant was informed of this resolution of the Council.

My agreement not to lodge a formal objection was based on the reasons given in the Statement that I submitted on behalf of the W&J Family Representative Council.

A final point in relation to the State Party’s response: it is obvious that the reference to the Carmichael mine area also applies to the area encompassed by the application for the leases ML 70505 and ML 70506. As attested to in the W&J Family Representative Council Statement, our Country and culture is an indivisible whole. At no time has the W&J Claimant Group, through its own determination, consented to the proposed mine or any of its component parts. The W&J Family Representative Council’s objection is a broader one that goes to the heart of our rights as an Indigenous People, and the issue of obtaining our free, prior and informed consent for matters affecting our traditional territories, upon which we uphold all of our spiritual, cultural, family and social, environmental and economic values, rights and interests.

I sincerely hope that Member McNamara will consider what I have put forward here.

Yours sincerely

Adrian Burragubba

The Tribunal rejects Mr Burragubba’s statement

41    On 23 February 2015, the Tribunal member sent an email to each of the parties to the Adani application and to Mr Burragubba stating that he did not consider Mr Burragubba’s statement was relevant for decision-making purposes. By way of explanation, the Tribunal member stated that:

The position of the native title party, as communicated by its legal representative, is that the statement is not to be considered. While ‘any matter the Tribunal considers relevant’ is one of the criteria the Tribunal must consider in making a determination, in context it must be relevant to the determination in the sense that it could have some bearing on the decision-making. The native title party’s representative did not submit material, thus did not ask for a determination that the act must not be done and Mr Burragubba refers to the fact that the representative was informed not to participate in proceedings. To that end, the position of the native title party is clear and unambiguous.

Whilst in a narrow sense Mr Burragubba’s statement is capable of relevance (in the sense that it is connected to the subject tenements as they are encompassed by the project he speaks of), whether the statement is in fact relevant is perhaps a matter of weight and authority. I note that:

•    Mr Burragubba’s statement was received after the native title party had indicated no submissions would be made, and after the compliance date was passed; his comment/s about his statement were also received after the closing time for such comments.

•    Mr Burragubba’s statement is headed ‘on behalf of the Wangan and Jagalingou people’ and on the last page ‘on behalf of the Wangan and Jagalingou Families Representative Council’, however, there is no confirmation of support from the other members of the Applicant or the members of the Families Representative Council. The statement was sent to various recipients, not inclusive of the other two registered claimants Ms White and Mr Malone. Noting those circumstances, it raises questions of authority.

•    Mr Burragubba’s updated comment says that his position, which he also believes is in the interests of the Applicant to adopt, is that ‘the W & J applicant doesn’t have a position of [on] the Family Representative Council’s statement submitted by Adrian Burragubba, and takes the view that it is entirely a matter for the Tribunal to consider and respond to the statement’.

Considering the statement and comments from Mr Burragubba, the statement is capable of relevance, but considering the weight to be attached to it, and its failing in terms of authority (i.e. the manner it was submitted and with no proof of support from the other members) I do not consider it to be relevant.

I also note that all parties have indicated their agreement for the matter to proceed on the papers. Having considered s 151(2), I confirm that the matter will proceed on the papers and the tentative listing hearing and hearing are vacated.

Ms Bobongie’s letter

42    On 2 April 2015, the Tribunal member received another communication from a person who was not a party to Adani’s right to negotiate applications. It was a letter under the letterhead of the Wangan & Jagalingou Family Council from Ms Linda Bobongie, the Chairperson, Organisational Committee, Wangan & Jagalingou Family Group. The letter stated:

Further to your email on behalf of Member McNamara dated 23 February 2015, we wish to correct a statement in relation to the authority of Adrian Burragubba to correspond on behalf of the Wangan and Jagalingou People.

Adrian Burragubba is an Applicant appointed by the Wangan and Jagalingou Family Representative Group. The Wangan and Jagalingou Family Representative Group holds decision-making authority, subject to the decisions authorised by the Wangan and Jagalingou Native Title Claim Group. Details of the decision-making structure are explained below.

At no time have the Wangan and Jagalingou People consented to a mining lease or the surrender of their Native Title to Adani Mining.

The Wangan and Jagalingou People have a decision-making structure that adapts traditional decision-making processes into a process agreed upon by our People.

All decision-making refers back to resolutions of the Native Title Claim Group, being all the Wangan and Jagalingou People, who met together at an authorisation meeting on 29 June 2014. This meeting authorised the structure of the “Wangan and Jagalingou Representative Group” (the Family Group), which is representative of all the families that make up the Wangan and Jagalingou People. Each member of the Family Group is obliged to, according to Terms of Appointment Part A s2 “do all things necessary to implement the resolutions of the Claim Group made at the meeting on 29 June 2014”.

The Wangan and Jagalingou People required the Applicant to abide by decisions of the Family Group. Applicant Terms of Appointment Part A sl6 provides that “The Applicant will not agree to any agreement, contract or undertaking unless supported by a majority of the members at a meeting of the Representative [Family] Group held to consider any agreement, contract or undertaking.”

The Wangan and Jagalingou Claim Group rejected the proposed Indigenous Land Use Agreement with Adani Mining in 4th October 2014, by a decision of an authorised Claim Group meeting. Under the decision-making structure, this decision to reject was made by the most authoritative group of the Wangan and Jagalingou People.

Following that decision by the Claim Group, the Family Group met on 22nd November 2014: this meeting was convened by the Native Title Representative Body – Queensland South Native Title Services. The Family Group is obliged to follow the decisions of the Claim Group. At this meeting the Family Group passed a resolution for the Applicants to object to Adani’s application to the Tribunal and it is authorised to make its own decisions.

The majority also authorised Adrian Burragubba to explore the possibility of challenging the mining lease and the compulsory acquisition on its behalf.

Every effort was made to compile relevant information to submit to NNTT under that authority, but the task was insurmountable and was hampered by many different obstacles.

The submission was abandoned, but the objection to the mining lease still stands.

Adrian Burragubba has advised that the Wangan and Jagalingou People were unable to mount a properly detailed case of objection in the Tribunal proceedings and contribute to them in a meaningful way.

The statement sent to the Tribunal on 5th Feb 2015 records our continuing opposition to the Adani mining lease in the only way that was reasonably available to us, and is supported and endorsed by the majority of the Wangan and Jagalingou Family Group.

We are concerned that the Tribunal has acted on what other parties have said about our decision-making process. It is not for other parties to say who should speak on behalf of W&J. Article 18 of the UN Declaration of the Rights of Indigenous Peoples says –

Article 18 – Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

We trust this clarifies the matter. We are happy to provide copies of the documents that record the structure if it is of any assistance.

(Emphasis in original)

43    As is already noted above, the Tribunal made its determination on 8 April 2015. In the Reasons, the Tribunal member expressed his views about the contents of Ms Bobongie’s letter in the following terms:

I can’t be completely certain that the Wangan and Jagalingou Family Group, Family Council, Family Representative Group, and Family Representative Council are indeed all the same body although the representations made are similar. In any case I don’t believe that this most recent correspondence adds anything to my understanding of the group’s opposition to the grant of the mining leases and to their rejection of the indigenous land use agreement. I accept that if there was agreement to the grant of the mining leases (subject perhaps to an indigenous land use agreement or an ancillary agreement) then the matter would not be before the Tribunal. I accept that the native title party has not made submissions in support of the grant of the mining leases, nor have they consented to the grant of the mining leases.

The Tribunal’s determination

44    The final paragraph of the Tribunal’s Reasons summarised its determination thus ([2015] NNTTA 16 at [121]): “The determination of the Tribunal is that the acts, being the grant of mining leases 70505 and 70506 to Adani Mining Pty Ltd, may be done.”

The EIS process

45    While the Tribunal’s determination is the central focus of this proceeding, there was another statutory process and a court proceeding that together played important roles in the factual context to this matter. The first was the statutory process contained in the State Development and Public Works Organisation Act 1971 (Qld) (as then in force) (the State Development Act). That process commenced on 22 October 2010 when Adani submitted an Initial Advice Statement to the Queensland Coordinator-General seeking to have the Carmichael Coal Mine and Rail Project declared a significant project under s 26(1)(a) of the State Development Act.

46    In response to that statement, on 26 November 2010, the Coordinator-General caused a notice to be published in the Queensland Government Gazette making a declaration that the Carmichael project was a significant project under that legislation.

47    Once a project has been declared to be a significant project, Part 4 of the State Development Act requires, among other things, that the proponent must prepare an Environmental Impact Statement (EIS) for the project. An EIS is required under that Act to address the subject matters set out in a Terms of Reference document issued by the Coordinator-General. On 25 May 2011, the Coordinator-General issued the Terms of Reference for the Carmichael project EIS. Prior to the issue of that document, a draft set of Terms of Reference had been released for public comment.

48    The Terms of Reference document comprised 94 pages. The Carmichael project was summarised in the introductory pages of it in the following terms:

The Carmichael Coal Mine and Rail project comprises of two major components:

(1)    a greenfield coal mine (over exploration permit for coal 1690), being both open-cut and underground mining, and associated mine processing facilities.

(2)    a railway line from the mine to Moranbah, joining the existing Goonyella rail system, connecting on to export facilities at Hay Point.

The proposed mine is expected to produce 60 million tonnes per annum of product coal at peak production. The project has a potential mine life of 150 years, including construction, operation and closure. Export coal from this project will predominantly service the Indian market.

...

It is anticipated the mine construction will require an investment of approximately $4.1 billion. Railway development will require a total investment of approximately $6.8 billion for rail connectivity to the Port of Hay Point.

…

49    The Terms of Reference also noted that, in January 2011, the relevant Commonwealth Minister had determined under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) that the project was a “controlled action” under that legislation. It went on to note that:

The Commonwealth Government has accredited the EIS process, to be conducted under the [State Development Act], under a bilateral agreement between the Commonwealth and Queensland governments. This will enable the EIS to meet the impact assessment requirements under both Commonwealth and Queensland legislation.

50    There were numerous and varied subject matters that Adani was required to address in the EIS for the Carmichael project. They included: a detailed description of the project (including its location, construction, operation, decommissioning and rehabilitation); the environmental values and the potential impacts thereto (including climate, natural hazards and climate change, land, nature conservation, water resources, air quality, greenhouse gas emissions, noise and vibration, waste, transport, Indigenous cultural heritage and non-Indigenous cultural heritage); the social values and the potential impacts thereto; the economies and the management of impacts thereto; the hazard and risks involved; the cumulative impacts involved; an environmental management plan and various matters of national environmental significance.

51    In the section dealing with the economics of the project, the Terms of Reference required Adani to address the following matters (relevantly):

5.1    Economy

5.1.1    Description of affected local and regional economies

Describe the existing economy in which the project is located and the economies materially impacted by the project. It should include:

•    a map illustrating the local and regional economies (local government areas) that could be potentially affected by the project

•    gross regional product or other appropriate measure of annual economic production

…

•    labour force statistics

…

5.1.2    Potential impacts and mitigation measures

The potential impacts should consider local, regional, state and national perspectives as appropriate to the scale of the project.

Describe both the potential and direct economic impacts including estimated costs, if material, on industry and the community by assessing the following:

•    property values

•    industry output

•    employment

•    potential land severance issues as a result of proposed rail infrastructure and proposed mitigation measures (including rail crossings)

•    the indirect impacts likely to flow to other industries and economies from the development of the project (and the implications of the project for future development). Include the volume of extractive materials to be used (particularly limited local resources) and any measures proposed to mitigate identified impacts

…

52    The EIS was prepared for Adani by GHD Pty Ltd. In an affidavit filed in this proceeding, Mr Chubb, the Queensland Market Leader for Environment of GHD, described how the economic assessment was undertaken for the purposes of preparing that section of the EIS as follows:

17.    As part of assessing the anticipated impacts of the Project, GHD undertook an analysis of its potential economic impacts, based on the project information provided by Adani and publicly available information at the time.

18.    That analysis was performed by a team within GHD which specialised in economic assessments for environmental impact statements. The team was led by Rob Coulton, and technically reviewed by Richard Rawnsley. Mr Coulton and Mr Rawnsley are no longer employed by GHD.

19.    The economic assessment performed by Mr Coulton (and reviewed by Mr Rawnsley) was also subsequently reviewed for compliance with the Terms of Reference by GHD’s Project leadership team responsible for preparing the EIS.

53    The EIS economic assessment was based on an input/output (I/O) method. That method was described in section 1.4 of the EIS, as follows:

1.4    Methodology

1.4.1    Model Extent

The economic assessment is largely based on the input-output (I/0) method of impact determination. Table 1-2 identifies the relevant local government authorities (LGA) and statistical local areas (SLA) utilised for the modelling.

…

1.4.2    Data Sources

Data used for the baseline economic overview has predominantly been gathered from publicly available sources and includes:

•    Queensland Government’s Office of Economic and Statistical Research (OESR)

•    Australian Bureau of Statistics (ABS)

•    The Local Government Authority for Isaac

•    Regional Economic Development Corporation (Mackay, Whitsunday and Isaac)

1.4.3    Input Output Analysis

The input output analysis (I/O) analysis is able to provide two types of information:

•    A numerical picture of the size and shape of the economy: this describes the important features of the economy, the interrelationships between different sectors within the affected economy and their relative importance.

•    An estimation of the relative contribution of a specific sector to the affected economy: this provides the multiplier numeric relative to the scale of the Project, which is utilised to develop the approximation of the potential economic impacts scaled from the initial estimation.

The economic assessment for the development of the Project has a range of economic impacts for both the local region (Mackay) and the wider State economy (Queensland). The assessment required the use of data from a number of data sources such as:

•    Australian Bureau of Statistics (ABS)

•    2006 Census of Population and Housing

•    2006 Agricultural Census and AgStats data for 2008/0

•    2003/04 Household Expenditure Survey

•    2009/10 Australian National Accounts, State Accounts

•    Regional Population Growth, Australia and New Zealand

•    Department of Employment and Workplace

•    Australian Taxation Office

The model for this specific economic assessment was then extended beyond the basic I/O model, to a demographic-economic model. This enabled the additional analysis of how local population levels will respond to employment growth or decline. The addition of an unemployment sector allows a preliminary estimate to be generated for the consumption induced impact from the growth or decline in unemployment.

The economic impact assessment estimates the expected impact on the affected economies. The employment numbers provided in Section 3 outline the additional employment within those economies as a result of the Project. These numbers have been determined using an assumption that a certain per cent of labour will be sourced from the local or State economy. In addition, as outlined in the report, these impacts will only occur if every effort is made to procure labour from within these economies - which will largely depend on the mitigation strategies, outlined in Section 3.4.3.

This specific model for the Project also provides a profile of sales of goods and services to visitors to the region, i.e. expenditure by tourists. Such data was sourced from Tourism Research Australia (2010) and the ABS. Once amalgamated, the model produced impacts for 66 different sectors within the affected economies. Using such an approach to estimate the expected impacts also requires a number of assumptions such as:

•    Price changes between the model construction year and the base year of analysis, i.e. the model base year was 2008/09, due to available data, however the base year for the analysis in this assessment was 2013. Growth rates of one per cent per annum were incorporated into the modelling to allow for increases in productivity in all sectors. Table 1-3 identifies the household incomes, GRP and employment for the model base year of 2008/09.

•    In the creation of new jobs by the Project it is assumed that a certain proportion of jobs, unless otherwise stated, will be filled by individuals from the local or regional areas. This assessment has used the assumption that 60 per cent of employees will be sourced from the local and regional economies and 90 per cent will be sourced from the State of Queensland as a whole.

•    Industries incorporated into the model have a linear production function, which assumes that industries have fixed input proportions.

•    Firms within industry sectors are homogeneous. They produce a fixed set of products that are not produced by any other firms and their input structures are all the same.

•    The model does not account for permanent changes that may occur in the management of natural resources for example due to legislative requirements.

54    The EIS document itself comprised thousands of pages.

55    The critical part of the EIS, for present purposes, namely the economic section of the Executive Summary, is set out above (at [30]). The assumptions upon which that economic section were based were set out in section 3.2 of the EIS, as follows:

3.2    Project (Mine)

3.2.1    Overview

The Project (Mine) will at full production produce 60 Mtpa (product) and have an operating life of approximately 90 years. The scale of the Project (Mine) and technical aspects i.e. the different methods of mining used on the same site, poses a number of complications due to the uncertain nature of required investments further into the life of the Project. Therefore, high-level estimates have been generated based on a number of assumptions specific to the modelling technique, outlined in Section 1.1, and to the Project itself.

The analysis has been conducted for the two main stages of the mine; construction, the majority of which is expected to occur prior to 2015, and operation for the first 10 years, post-2015, which takes the mine through ramp up to full production.

3.2.2    Construction

3.2.2.1    Capital Investment

Capital investment for the life of the Mine is expected to total $21.5 billion (Runge Limited 2011). It is estimated that $5.818 billion will be spent in the years preceding 2022, with the remaining $15.6 billion being spent over the remaining years of operation. Figure 3-1 shows capital investment for the life of the Project (Mine).

Direct expenditure for the construction phase of the Project (Mine) between years 1 and 3 (nominally 2013-2015) and to full production in year 10 (nominally 2022) is estimated from this data. The location in which the expenditure would take place is also estimated. Table 3-1 outlines the values and expected location of expenditure.

3.2.2.2    Gross Regional Product (GRP)

The analysis provides an estimate of the direct and indirect impacts of the development on the affected economies GRP. Table 3-2 provides a synopsis of the results. The analysis suggests the net contribution of the Project (Mine) to the affected economies is positive. In the first year of construction of the Project (Mine), the region’s GRP would be boosted by 1.2 per cent - that is, $82 million (based on 2008-09 GRP). This figure would drop to $73 million in 2014 before rising to $80.5 million in year three of construction.

At the State level Table 3-2 outlines the Project’s contribution to gross state product (GSP), which is expected to be $212 million in year one and $189 million and $209 million in subsequent years. In the context of the Queensland economy, which had a GSP of $243.9 billion in 2008-09, year one, the peak year of the development, would provide an increase in GSP of 0.1 per cent.

3.2.2.3    Household Income

The impacts of the development on household income follow similar patterns to those for GRP and GSP. Year one of the construction sees the most considerable contribution to household income. Considering both direct and indirect impacts, the Mackay region is expected to experience an increase of $32.6 million in year one, plus subsequent annual increases of $29.1 million and $32.3 million in the following years.

As can be seen in Table 3-3, impacts are similar at the State level; the highest levels of impacts are seen in year one, dropping by $9.4 million in year two and increasing by $8.4 million in year three.

3.2.2.4    Employment

Employment, which shows the welfare of households within the affected economies, is the final indicator used to identify potential impacts of the Project (Mine) on the region.

An initial workforce of 400 persons is anticipated to be onsite in January 2013 for the pre-construction phase and then construction phase of the Project (Mine). Numbers are expected to increase to up to 3,000 people over the next ten years where full production is reached. Figure 3-2 shows the workforce numbers for the construction period. As there is an overlap between construction and initial operation of the Mine, total workforce Figure 3-2 shows workforce for the period of 2013 through to full production at 2022.

Table 3-4 identifies the estimates the impact that the Project (Mine) will have on employment within the region and within the State. Year one sees the greatest benefits both in the Mackay Region and for the State as a whole. In 2008-09 total employment within the Mackay region was 52,322. Using these figures, the Project (Mine) will boost local employment by 0.8 per cent and State employment by 0.05 per cent.

3.2.3     Operation

3.2.3.1     Operational Cost

The operation of the Mine is expected to commence with an initial output of 2 Mtpa. Over the subsequent years, output is expected to ramp up to reach full production target of 60 Mtpa product in the tenth year after construction commences (nominally 2022). The operational scale of the Project is significant, with coal extracted via underground and open cut mining techniques. Therefore, the Mine will continue to see considerable investment in capital, as can be seen in Figure 3-3, as the Mine is expanded and as machinery reaches the end of its life and needs to be replaced.

The estimated production cost, over the life of the Mine (for the purpose of this assessment) is expected to be around $33 per tonne. Table 3-5 provides an expected operational expenditure taking into account both the production cost and the on-going capital expenditure. Table 3-5 was derived from the assumptions that 11 per cent of operational expenditures would occur within the Mackay region, 13 per cent would occur within Queensland and the rest, 76 per cent will occur outside Queensland.

Economic impacts, both direct and indirect have been determined until 2025, the first 10 years of the Mine life. This forecast period has been selected as it has the appropriate level of certainty. It has been assumed that once the Mine has reached full production (60 Mtpa), and stabilised at that output, the impacts would remain the same with perhaps some variation as new deposits are found and pits constructed.

3.2.3.2    Gross Regional Product

Impacts on GRP are expected to continue rising through the life of the Project. Impacts in year three of the mine life are estimated at $106 million (Table 3-6). This is projected to rise to $3,769 million by 2025, representing 35 per cent of GRP.

At the State level, as seen Table 3-7, impacts are estimated to be $231.3 million in 2015 and have grown to $4,170 million by 2025.

3.2.3.3    Household Income

Household income is predicted to increase by 10.1 per cent solely due to the development of the Project (Mine) from 2008-09 value, to 2025, year 13 of the Mine life when it is operating at maximum production. At the State level, the long-term increase is expected to be almost $574 million, representing 0.45 per cent of the State total in 2008-09 ($128.6 billion).

3.2.3.4    Employment

The Project (Mine) total operational workforce, including underground and open cut operations, is expected to average 2,366 persons (peak just under 3000) for the period from full production in 2022 to completion of all on site works in 2102. The number will remain above 2,000 when underground mining ceases production by 2067, but will gradually reduce as the production winds done and the mine ceases production in 2102.

The Mackay region is expected to see an increase of 7.8 per cent, of 2008-09 levels, in employment due to direct and indirect impacts of the Mine development. Similar trends are expected State wide where employment levels will increase from 1,502 fte to 6,789 fte in 2025. Therefore, by 2025, employment levels State wide will have been boosted 0.3 per cent by the Project (Mine).

(Emphasis added)

56    Once Adani had prepared the EIS, it was required, under the State Development Act (s 33), to make it available for public comment. The public comment period occurred between 15 December 2012 and 11 February 2013. Under s 35 of the State Development Act, the Coordinator-General was then required to consider the EIS and all submissions received in relation to it. That section of the State Development Act also allowed the Coordinator- General to seek further information from Adani about the document. That occurred on 26 March 2013, when the Coordinator-General wrote to Adani requesting it to submit a quantity of further information in the form of a supplementary EIS.

57    On 7 May 2014, after receiving and considering the supplementary EIS along with the original document, the Coordinator-General published an evaluation report under s 35 of the State Development Act. The main import of that report, comprising more than 600 pages, was to approve the project subject to certain conditions.

58    The Commonwealth Minister gave his approval for the Carmichael project under the EPBC Act on 27 July 2014. The conditions for that approval were varied on 21 November 2014. That approval has since been the subject of separate proceedings in this Court which are yet to be resolved.

The Land Court proceeding

59    Parallel to this statutory process under the State Development Act, there was a proceeding in the Land Court of Queensland. It arose because, under s 185 of the Environmental Protection Act 1994 (Qld) (the EPA (Qld)) and s 265 of the Minerals Act, objections to an application for a mining lease must be referred to the Land Court for a decision on those objections. Such a referral occurred in mid to late 2014 in relation to Adani’s applications for Mining Leases 70505 and 70506 and that referral resulted in the Land Court proceeding. It also included another mining lease application (ML70441), but that application is not relevant for present purposes.

60    The respondent parties to the Land Court proceeding included Land Services of Coast and Country Inc (Land Services) and the Conservation Action Trust.

61    On 29 October 2014, the Acting President of the Land Court gave detailed directions for the trial of the proceeding. They included the following directions for the exchange of lists and statements relating to lay witnesses and expert witnesses:

7.    By 4.00pm on Friday, 21 November 2014:

(a)    [the parties] are to exchange a list of any lay witnesses and expert witnesses additional to those notified pursuant to paragraph 6 above, specifying the topics the additional lay witnesses are to address and the field of expertise of each additional expert; and

…

8.    By 4.00pm on Friday, 28 November 2014 [Adani and the Objectors] must deliver to the Land Court and exchange any statements of evidence of lay witnesses limited to matters in reply to the statements of evidence pursuant to paragraph 7(a) above.

Preliminary identification of issues

9.    Also by 4.00pm on Friday, 28 November 2014 [the Objectors] must provide to the other parties a notice containing a list of the specific issues their notified experts propose to seek agreement upon at the joint expert meetings.

10.    By 4.00pm on Friday, 5 December 2014, [Adani] must provide to the other parties a notice containing a list of any additional issues its notified experts wish to seek agreement upon at those joint expert meetings.

Expert evidence

11.    By 4.00pm on Wednesday, 31 December 2014, the identified experts in each field must:

(a)    confer with the corresponding expert in the same field, and discuss whether the issues relevant to their field of expertise can be resolved in whole or in part in accordance with the Land Court Rules 2000 (Qld); and

(b)    prepare and provide to the parties a joint report in accordance with the Land Court Rules 2000 (Qld).

12.    The meetings of experts referred to in order 11 hereof are to take place in the absence of the parties and their legal representative and discussions about working notes of the parties’ experts shall, unless otherwise agreed by the parties, be on a ‘without prejudice’ basis, except for any:

(a)    notices given under orders 9 and 10 above; and

(b)    joint reports produced pursuant to orders 11(a) or 15(b).

13.    By 4.00pm on Friday, 30 January 2015, [Adani] is to deliver to the Land Court a copy of each joint expert report prepared pursuant to order 11(a) above.

14.    By 4.00pm on Friday, 6 February 2015, [the parties] must deliver to the Land Court and exchange any further statements of evidence of their expert witnesses in accordance with the Land Court Rules 2000 (Qld).

…

17.    Subject to the leave of the Court, no party may lead testimony from a witness which is not fairly disclosed in the reports, statements or other material delivered/filed and served under these Orders for that witness.

62    For the purpose of the Land Court proceeding, Adani appointed Dr JG Fahrer, a consulting economist, as its expert. Land Services appointed Mr R Campbell, also an economist, as its expert. On 28 November 2014, Land Services delivered a notice to Adani containing a list of the specific issues in respect of which it proposed to seek agreement (see Direction 9 above). An amended version of that list was delivered on 2 December 2014.

63    On 19 December 2014, Dr Fahrer and Mr Campbell produced a document entitled “Joint Expert Report to the Land Court of Queensland” (the Joint Report). As recorded in that report, it set out: “[T]he areas of agreement and disagreement of the Experts in relation to the issues in respect of energy markets and financial analysis”. The body of the Joint Report contained a table (Table 1) above which appeared the statement: “Our views on the issues are set out in Table 1 below”. Table 1 of the Joint Report was as follows:

64    Following the production of the Joint Report, Dr Fahrer produced two further reports of his own: a preliminary reported dated 12 January 2015 (the First Report); and a final report dated 30 January 2015 (the Second Report).

65    The First Report dated 12 January 2015 was entitled: “CGE ANALYSIS OF CARMICHAEL COAL MINE PRELIMINARY REPORT: SUBJECT TO REVISION”.

66    The purpose of that report was stated in its first paragraph to be to present “preliminary results of Computable General Equilibrium (CGE) modelling of the economic impacts of the Carmichael coal mine and rail project”. It should be noted that the intention to undertake CGE modelling was foreshadowed in the Joint Report above. The CGE model was explained in the next paragraph of the First Report in the following terms:

A CGE model takes account of interactions between industries, the effects of price changes and resource constraints in an economy. As such CGE models provide the most theoretically sound and empirically comprehensive method of evaluating the economic impacts of major projects, ‘shocks’ to an economy (such as a financial crisis) or policy reforms.

67    What Dr Fahrer described as the “headline results” of that modelling were set out in the last of the introductory paragraphs of the First Report in the following terms:

Headline results of the modelling are that over the period 2014-15 to 2046-47 the Project will add $61577 million to Australian real economic output and $42282 million to Australian real income. Most of the increase in real output will occur in the MIW [Mackay Isaacs and Whitsunday Local Government areas] region, while most of the increase in real income will occur in the rest of Queensland. The principal reason that the increase in income is less than the increase in output is that Adani is foreign owned, and so the profits (after taxes and royalties) from the Project will not accrue to Australian residents. Nonetheless, despite this foreign ownership, the Project will result in significant real income gains for Australians in general and Queenslanders in particular.

(Footnote omitted)

68    Dr Fahrer’s Second Report, dated 30 January 2015, served a more general purpose. It was entitled “Carmichael Coal and Rail Project Economic Assessment”. Its general purpose was described in the introductory paragraphs (paragraph 2) as: to “provide an expert report in the Land Court proceedings”.

69    Its specific purpose was described in these terms (at paragraph 9):

I am instructed by Adani’s solicitor Peter Stokes of McCullough Robertson that the Land Court is required to consider whether any good reason has been shown for a recommendation that the application be refused pursuant to section 269(4)(l) of the Mineral Resources Act. Although the Applicant complied with the Terms of Reference (section 5.1) and examined the economic benefits of the project based upon an Input-Output economic model an outcome so produced might be seen as providing an incomplete response to whether good reason has been shown to recommend a refusal of a grant of a mining lease. The report I have prepared examines the question of economic value based on two complementary models in order to answer the question of whether any good reason exists from an economic benefit standpoint to warrant an unfavourable recommendation for the grant of the lease.

The “Terms of Reference (section 5.1)” refers to section 5.1 of the Executive Summary to the EIS. The “good reason” criterion referred to above is posed by s 269(4) (particularly ss (l)) of the Minerals Act (see at [90] below).

70    This Second Report noted the existence of the Joint Report and indicated (paragraph 8) that the issues discussed in that Joint Report had been addressed in the following chapters or sections (using the item numbers in the left column of the Joint Report at [63] above):

––    103 (a),(b) (e): Chapters 4,5,6 and 7

––    103 (c): Chapter 3, paragraph 59 and Chapter 4, paragraph 99

––    103 (d) and 108 (a) (b): section 4.1, paragraphs 87 and 88

––    104, 105(a) (b) (c), 106,107 (a) (b) (c) (d): Chapter 4 and Attachment A

71    The broad assumptions upon which Dr Fahrer based his Second Report were set out in section 2.1. The first paragraph thereof (paragraph 12) described the project in these terms:

Adani Pty Ltd (Adani) proposes to produce around 40 million tonnes per annum (mtpa) of coal for export to a variety of Asian countries including, inter alia, India, China, Korea and Japan.1

(Emphasis added)

72    The footnote to this paragraph stated:

[1    The figure of 40 mtpa is associated with the bankable feasibility study (BFS) for the Carmichael Project, which is focussed on its first phase of 30 years: In the second phase of the Project, the mine’s capacity is expected to increase up to a level of 60 mtpa. The second phase could commence at any point during the 30 year period, or afterwards: …]

(Emphasis added)

73    It is convenient to interpose that this footnote was explained by Mr Lezar in an affidavit filed by Adani in this proceeding. Mr Lezar is the Head of Mining Operations at Adani. In that affidavit, he said:

The reference to the “BFS scenario” means the Bankable Feasibility Study performed by an external consultant on behalf of Adani for a purpose unrelated to Adani obtaining government approvals or responding to issues raised in tribunal proceedings.

74    The 30 year timeframe for the Second Report was explained in a later paragraph of section 2.1 (at paragraph 17) as follows:

While the Carmichael Project is expected to have a life of 60 years, the economic impact analysis and cost benefit analysis reported in this document is for the first phase only, covering the period to 2046-47. In practical terms, for the purposes of this report, truncating the analysis at that point makes no substantial difference, since the present value of benefits, costs and incomes more than 30 years into the future is likely to be small.

75    In section 2.2, Dr Fahrer addressed Land Services’ objections to the Carmichael project before the Land Court. He summarised the nature of those objections and then set out his response to them in the following terms (paragraphs 20 to 23). First he summarised the objections as (paragraph 20):

a.     the mine will have adverse economic and social impacts on local, regional, state and global economies and communities

b.    Application of the precautionary principle should lead to the mine not being approved, given the absence of evidence that the mine will not create unacceptable environmental harm

c.    the mine will have adverse impacts on groundwater, surface water, biodiversity and climate

d.    for a variety of reasons, the Input/Output modelling used in the Environmental Impact Statement is deficient

e.    a net economic benefit from the mine has not been been (sic) demonstrated.

(Footnote omitted; emphasis omitted)

76    Dr Fahrer then described the two methods of evaluation he had used in his reports and his response to the objections above in these terms:

21    In this report I estimate the economic impact and net economic benefit of the Carmichael Project, using two methods of evaluation: Computable General Equilibrium (CGE) modelling and Cost Benefit Analysis (CBA). In doing so, I take account of the objections made and issues raised by Land Services of Coast and Country Inc.

22    I find that the net economic benefits of the Carmichael Project are likely to be very large.

23    The CGE modelling finds that the net benefits in present value terms, are between $18.6 billion and $22.8 billion while the CBA analysis finds that the net benefits, narrowly defined, are between $12.3 billion and $16.6 billion. More broadly defined, they are between $34.5 billion and $44.3 billion. In all cases, they are more likely to be closer to the larger figure.

77    The differences between, and similarities of, these two methods were described in some detail in the Second Report. That description included the following paragraphs:

28    The primary purpose of CGE modelling is to determine the economic impacts of a project. Such modelling is not designed to make value judgments about whether a project ought to take place, though it is possible, as a by-product of this modelling, to make value judgments about whether residents of a nation, state or region are better off as a result of a project’s economic impacts.

29    Cost Benefit Analysis (CBA), on the other hand, is designed to make value judgments about whether a project ought to proceed (where such value judgments implicitly adopt the consequentialist ethics that forms the basis of most welfare economics). It does so by evaluating whether a project creates value (i.e. profit for producers and utility for consumers) in the market for the good that is produced in the project, that is greater than the costs to society of the resources used in the production of the good.

30    Unlike CGE modelling, CBA considers only economic effects in one market, so in that sense it is a more narrow type of analysis. But on the other hand, unlike CGE modelling, CBA does consider externalities, where possible quantifying their effects, as well as correcting for market prices that are not those that would exist in a competitive market (e.g prices of key inputs that are regulated by governments, or subject to monopoly pricing). In that sense, CBA is a broader type of analysis than CGE.

78    And further:

35    A CGE model takes account of interactions between industries, the effects of price changes and resource constraints in an economy. As such CGE models provide the most theoretically sound and empirically comprehensive method of evaluating the economic impacts of major projects, ‘shocks’ to an economy (such as a financial crisis) or policy reforms.

36    In essence, the modelling estimates two future paths over time for the economy; one with, and one without the Project. The impact of the Project at each point in time is the difference between these two paths.

79    In section 3 of his Second Report, Dr Fahrer undertook his CGE analysis. In that section, he identified the “headline results” of that analysis in identical terms to those used in his First Report, namely that the Carmichael project would add $61,577 million to Australia’s real economic output and $48,282 million to Australia’s real income (see at [67] above). Those results are reflected in the following table included in that section of his report:

80    In the same section of his Second Report, Dr Fahrer provided an estimate of the effect the Carmichael project would have on employment in the Queensland economy. He prefaced that estimate with the following observations:

64    As well as creating medium term employment in the Queensland economy, monetising the resources from the Project will generate a significant number of short-term jobs related to the construction phase of the Project. In addition to the direct jobs generated on-site, the construction and installation, and production phases will require significant quantities of Queensland sourced goods and services including mining, engineering and management services, some machinery and cement during construction and mining, manufacturing and various business services during operation. Production of these inputs will further increase the demand for labour across the Queensland economy.

65    A key issue when estimating the impact of a project is determining how the labour market will clear. As discussed Attachment A, for this analysis, increases in the demand for labour in the Local MIW Region can be met by three mechanisms: increasing migration from the rest of Australia; increasing participation rates and/or average hours worked; and by reducing the unemployment rate. In the model framework, the first two mechanisms are driven by changes in the real wages paid to workers in the Local MIW Region while the third is a function of the additional labour demand relative to the Reference Case. Given the moderate unemployment rate assumed throughout the projection period, changes in the real wage rate accounts for the majority of the additional labour supply in the policy scenarios relative to the Reference Case.

(Footnote omitted)

81    The footnote to the latter paragraph above made an important point about the different assumptions that underpinned Dr Fahrer’s CGE analysis as compared to the I-O multiplier analysis used in the EIS. It stated:

As with other CGE models, the standard assumption within Tasman Global is that all markets clear (i.e. demand equals supply) at the start and end of each time period, including the labour market. CGE models place explicit limits on the availability of factors and the nature of the constraints can greatly change the magnitude and nature of the results. In contrast, most other methods used to assess economic impacts, including I-O multiplier analysis, do not place constraints on the availability of factors. Consequently, these methods tend to overestimate the impacts of a project or policy.

“Tasman Global” holds the intellectual property in the CGE analysis methodology.

82    The estimated employment impact of the project was then described as follows:

68    Over the life of the Project it is projected that on average around 1,464 employee years of full time equivalent direct and indirect jobs will be created. More specifically, it is projected that the Project will increase employment in:

––    the Local MIW Region by 15,943 employee years (average annual increase of 483 FTE jobs)

––    Queensland as a whole by 39,796 employee years (average annual increase of 1,206 FTE jobs)

––    Australia as a whole by 48,324 employee years (average annual increase of 1,464 FTE jobs).

83    The balance of Dr Fahrer’s Second Report was devoted to his cost benefit analysis of the project. In the introductory paragraphs to that section, Dr Fahrer described what a CBA entailed in the following terms:

83    Cost Benefit Analysis (CBA) is a method of economic analysis whose primary objective is to determine whether a proposed project is economically efficient, relative to the alternative of not doing the project.

84    If the present value of a project’s benefits exceeds the present value of its costs, then the project is worth doing, in the sense that is allocatively efficient. That is, the project resources that are utilised in the project (land, labour, capital, technology), in the present case the production of coal from a mine, are being put to their highest value use. In this sense, a CBA provides a measure of the economic well-being, or welfare, created by a project.

(Emphasis in original)

84    Thereafter, he discussed various economic concepts that were involved in the analysis including:

4.2    How should consumer surplus be estimated?

…

4.3    Whose costs and benefits should be counted?

…

4.4    Discounting, risk and uncertainty

…

85    Next, he identified and discussed the negative externalities associated with the Carmichael project which he explained at the outset were:

Negative externalities are unpriced impacts from an economic activity that impose costs on third parties. They are considered to be a ‘market failure’ because, in the absence of any corrective action they (generally) cause too much of a good to be produced, because the producer takes no account of the costs that it is imposing on others.

(Footnotes omitted)

86    All this discussion led to the following estimation of the benefits and costs of the project:

181    The benefits and costs of the Project, in present values terms, are shown in Table 5, below. The time period for the calculation is AFY2014-15 to AFY2046-47.

182    Benefits (excluding consumer surplus) are revenues from the sale of coal.

183    The data used in these calculations are in Attachment B of this report. Where necessary, data in $US have been coverted (sic) to $A with an exchange rate of A$ = US$0.8491.

184    Consumer surplus, with an assumed value for the elasticity of demand of (minus) one, is 50 per cent of revenue.

…

185    As Table 5 shows, the net benefits of the Carmichael Project are very stongly (sic) positive, under either discount rate. Under the preferred discount rate, 2.8 per cent, the present value of the net benefits excluding Consumer Surplus is $16.6 billion. Including consumer surplus the net benefits are $44.3 billion.

186    Looking at the benefit-cost ratio, under either discount rate the benefits in present value terms, excluding consumer surplus, are 40 per cent bigger than the costs. Including consumer surplus, the benefis (sic) are more than double the costs.

(Footnotes omitted)

87    Table 5 (mentioned above) was as follows:

Table 5 Present Value of Project Benefits and Costs ($m, real, $2014-15)

Source: Author’s estimates

88    The penultimate section of the Second Report contained a sensitivity analysis using differing market prices for coal and differing production volumes. From this analysis, Dr Fahrer concluded: “that the benefits of the Project exceed its costs including any reasonable environmental cost that might occur but has not been counted in the CBA.”

89    In the final section of his Second Report, Dr Fahrer summarised his overall conclusions as follows:

218    The analysis in this report shows that the economic benefit of the Carmichael Project is very large.

219    The CGE analysis shows a highly positive economic impact on incomes in the MIW region, Queensland and Australia. In Queensland, real incomes will rise between $18.6 billion and $22.8 billion, in real present value terms.

220    This estimated impact is conservative in that it assumes labour that is employed in the Project is drawn from other industries, apart from small labour supply effects. This assumption necessarily places a limit on the extent to which the Project can increase output and incomes in the economy.

221    The Cost Benefit Analysis (CBA) shows that net benefits, in real present value terms, range between $12.3 billion and $16.6 billion, if estimates of consumer surplus are excluded from the analysis. If they are included, the net benefits range from $34.5 billion and $44.3 billion. The costs included in the CBA include the cost of GHDs from the mine and from the electricity that is used to power the mine, at an average carbon price of $126 per tonne.

222    The conclusion that the benefits of the Project well exceed its costs does not change even if much lower coal prices, much lower coal volumes and much higher environmental costs are assumed.

90    The hearing before the Land Court proceeded in two stages between 31 March 2015 and 14 May 2015. The criteria which the Land Court was required to take into account in making its decision on the objections and in making its recommendation to the relevant State Minister were contained in s 191 of the EPA (Qld) and s 269(4) of the Minerals Act. They are as follows:

191    Matters to be considered for objections decision

In making the objections decision for the application, the Land Court must consider the following—

(a)    the application;

(b)    any response given for an information request;

(c)    any standard conditions for the relevant activity or authority;

(d)    any draft environmental authority for the application;

(e)    any objection notice for the application;

(f)    any relevant regulatory requirement;

(g)    the standard criteria;

(h)    the status of any application under the Mineral Resources Act for each relevant mining tenure.

269    Land Court’s recommendation on hearing

(4)    The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether—

(a)    the provisions of this Act have been complied with; and

(b)    the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and

(c)    if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and

(d)    the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to—

(i)    the matters mentioned in paragraphs (b) and (c); and

(ii)    the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and

(e)    the term sought is appropriate; and

(f)    the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and

(g)    the past performance of the applicant has been satisfactory; and

(h)    any disadvantage may result to the rights of—

(i)    holders of existing exploration permits or mineral development licences; or

(ii)    existing applicants for exploration permits or mineral development licences; and

(i)    the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and

(j)    there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and

(k)    the public right and interest will be prejudiced; and

(l)    any good reason has been shown for a refusal to grant the mining lease; and

(m)    taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.

91    The standard criteria referred to in s 191(g) of the EPA (Qld) are defined in the dictionary to that Act (Sch 4) to mean:

(a)    the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment—

(i)    the precautionary principle;

(ii)    intergenerational equity;

(iii)    conservation of biological diversity and ecological integrity; and

(b)    any Commonwealth or State government plans, standards, agreements or requirements about environmental protection or ecologically sustainable development; and

(d)    any relevant environmental impact study, assessment or report; and

(e)    the character, resilience and values of the receiving environment; and

(f)    all submissions made by the applicant and submitters; and

(g)    the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows—

(i)    an environmental authority;

(ii)    a transitional environmental program;

(iii)    an environmental protection order;

(iv)    a disposal permit;

(v)    a development approval; and

(h)    the financial implications of the requirements under an instrument, or proposed instrument, mentioned in paragraph (g) as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument; and

(i)    the public interest; and

(j)    any relevant site management plan; and

(k)    any relevant integrated environmental management system or proposed integrated environmental management system; and

(l)    any other matter prescribed under a regulation.

It can be seen that some of these criteria are linked with the provisions of the EPBC Act.

92    The Land Court delivered its decision ([2015] QLC 48) on 15 December 2015. It recommended to the relevant Minister that Adani’s applications for Mining Leases 70505 and 70506 be granted and the environmental authority be approved, subject to additional conditions being put in place for the protection of the endangered black-throated finch. Although the Land Court found that Adani had overstated certain elements of the financial and economic benefits of the Carmichael mine in the EIS and in the evidence before the Court, this did not lead the Court to conclude that the applications should not be granted.

The Tribunal’s Reasons for determination

93    Having described the factual background to this proceeding in some detail, it is now convenient to set out the critical parts of the Tribunal’s Reasons ([2015] NNTTA 16).

94    The Tribunal began its Reasons by recording the background to Adani’s right to negotiate applications, identifying the relevant provisions of the NTA bearing on the inquiry, describing the areas of land affected and the existing land uses thereof, and detailing the material received from the parties and from Mr Burragubba (see at [29]–[43] above). In the Introductory section of its Reasons, the Tribunal identified the native title party in the following terms: “The Wangan and Jagalingou People are the ‘native title party’ for this inquiry and there are no other overlapping registered claims or determinations.” It went on to record that the members of the Applicant in the Wangan and Jagalingou application were Mr Burragubba, Mr Malone and Ms White in accordance with the orders of Collier J made on 7 August 2014. The Tribunal identified the other parties (referring to s 141 of the NTA: see [25] above) as Adani (the grantee party) and the State of Queensland (the Government party). Having set out all this material, the Tribunal then turned to consider the criteria in s 39 of the NTA. That section is already set out above [at [28]).

95    At the outset of its consideration of those criteria, the Tribunal devoted a number of paragraphs of its Reasons to the nature of its task and the effect thereon of the failure of the Wangan and Jagalingou native title party to place any material before it. In those paragraphs, the Tribunal member made the following observations:

[62]    The Tribunal’s task is to make a determination under s 38 considering the s 39 criteria and the determination is to be made as soon as practicable …

[63]    Many times, the Tribunal has made a determination on the material presented, even where a native title party has not submitted evidence. The Tribunal is generally not required to make out a party’s case for it [quoting Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 at [162] that “the parties have the primary responsibility for presenting evidence and, in general, if they fail to do so, they cannot complain if the Tribunal gives little or no weight to their contentions”]. [Quoting Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia [2006] NNTTA 19 at [8]] “… The mandatory nature of ss 38 and 39 means that even where a native title party says before compliance by the [State] and [Adani] that it will not be making contentions or providing evidence, the Tribunal is obliged to conduct an inquiry which requires the other parties to address the issues dealt with in s 39” … as follows [quoting Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd [2004] NNTTA 108]:

The Tribunal must act on the basis of evidence which ordinarily will be provided by the parties. There is no onus of proof as such but a commonsense approach to evidence which means that parties will produce evidence to support their contentions particularly where facts are peculiarly within their knowledge. The Tribunal will not normally conduct its own inquiries and obtain evidence, particularly where a party is represented before the Tribunal. If a party fails to provide relevant evidence the Tribunal is normally entitled to proceed to make a determination without it.

…

[64]    In the current matter, the native title party’s representative did not provide a reason for not submitting contentions and evidence and did not seek any extension. There was ample opportunity to present its case but the native title party decided not to and notwithstanding this, my task is to proceed and make a determination.

96    The Tribunal’s treatment of each of the criteria set out in s 39 is summarised in the following paragraphs. With each criterion, the Tribunal’s general approach was to record the submissions made by Adani and the State, to set out its consideration of those submissions and, finally, to state its conclusion thereon. In some instances, its consideration and conclusion were contained in the same paragraph.

(a)    Section 39(1)(a)(i) – enjoyment of registered native title rights and interests

97    On this criterion, Adani contended that “the grants are unlikely to have any significant impact on the enjoyment of any registered native title rights and interests, noting it wasn’t aware of whether the native title party exercises any rights or interests over the relevant land”. And: “the existing non-native title interests and uses in the areas, and the operation of the non-extinguishment principles in ss 24MD(3),(8) and 238 of the Act.” As well, it contended that “the existing non-native title use of the land by way of mining tenure would restrict the exercise of the native title rights and interests, thus the grant of the proposed leases is regarded as unlikely to have a measurable additional impact”.

98    The State contended that the grant of the proposed leases was not likely to affect the enjoyment of registered native title rights and interests because of the restrictions contained in various pieces of State legislation, including the EPA (Qld) and the Minerals Act. In addition, it relied upon the following matters:

(d)    There being no known Aboriginal communities within or in close proximity of the proposed leases;

(e)    The comparatively limited size of the proposed leases within the area of the native title party’s external claim boundary …;

(f)    The area of the proposed leases either has been, or currently is, subject to ‘extensive exploration and mining activities which may have already affected the native title party’s enjoyment of their registered native title rights and interests’ …;

(g)    The underlying tenure being subject to third party interests such as leasehold interests (referring to underlying tenure explained above) ‘that would have affected either the existence of enjoyment of the Native [Title] Party’s registered native title rights and interests’.

99    After recording the submissions of Adani and the State, the Tribunal reiterated that it had “no contentions or evidence before [it] regarding the native title party’s position”. It then quoted from two previous National Native Title Tribunal decisions dealing with similar situations and added: “Evidence is preferably provided in affidavit form although the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is not contested. No such evidence was received in this matter.”

100    The Tribunal then concluded that: “I accept the submissions of [Adani] … and the [State] … to the effect that having regard to the matters set out, any enjoyment of native title rights and interests is unlikely to be significantly impacted by the grant of the proposed leases.”

(b)    Section 39(1)(a)(ii) – way of life, culture and traditions of the native title party

101    Both Adani and the State stated they were unaware of any likely effect on the way of life, culture and traditions of the native title party. Adani also added that it intended to conduct its activities in accordance with the Cultural Heritage Management Plans and the requirements of the Aboriginal Cultural Heritage Act 2003 (Qld) (the Aboriginal Cultural Heritage Act).

102    The State repeated its reliance on the matters set out at [99] above in relation to the first criterion.

103    In its consideration, the Tribunal began by noting that: “An apprehension of impact in the absence of evidence is not enough for the Tribunal to make findings that the future act will affect the way of life, culture and traditions of the native title party.” It then concluded: “In the absence of evidence from the native title party I cannot conclude that there will be any effect on the way of life, culture and traditions of the native title party.”

(c)    Section 39(1)(a)(iii) – development of social, cultural and economic structures

104    Again, Adani stated that, in the absence of information from the native title party, it could not state what the effect would be, however, it contended that: “employment and commercial opportunities may arise and suggests the effect on social cultural and economic structures would therefore be positive”.

105    The State also stated it was unaware what the likely effect of the grant would be on these matters and repeated its reliance on the matters set out at [99] above.

106    In its Consideration section, the Tribunal again noted that: “There is no evidence or information before the Tribunal of any social, cultural or economic structure which could be affected either positively or negatively.” It reiterated this observation in its concluding paragraph as follows: “There is no material before me to make a conclusion that the grant of the proposed leases will have any effect on the native title party’s way of life, culture or traditions, or development of their social, cultural or economic structures.”

(d)    Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies

107    On this criterion, both Adani and the State stated that they were unaware of any relevant adverse effect, however, Adani added that the following factors made it unlikely that the proposed grants would have any significant impact on this criterion:

(a)    The non-native title interests …;

(b)    The ‘temporal nature’ of the effect of the grant of the proposed leases; and

(c)    The operation of the non-extinguishment principle in ss 24MD(3)(8) and 238.

108    In its conclusion, the Tribunal restated the lack of any evidence from the native title party (at [88]) and concluded:

Taking into account [Adani’s] intentions as referred to in their contentions as summarised [at [107] above] and the non-native title rights and interests and existing uses of land (see s 39(2) of the Act), I am unable to conclude that there will be any (or any significant) impact on the ability of members of the native title claim group to access the area of the proposed leases, or to carry out rites, ceremonies or other activities of cultural significance.

(e)    Section 39(1)(a)(v) – effect on areas or sites of particular significance

109    With respect to this criterion, Adani reiterated its intention to carry out its activities in accordance with the Cultural Heritage Management Plans it had already entered into and in accordance with the provisions of the Aboriginal Cultural Heritage Act. It also noted that, while the Cultural Heritage Database and Register searches it had conducted showed no Aboriginal heritage sites within the areas of the proposed leases, some sites were identified by the native title party in the course of cultural heritage surveys undertaken as part of the EIS process, but they were not of any particular significance.

110    The State again stated that it was unaware of any area or site of particular significance to the native title party in the relevant area. It also contended that any such areas or sites within the areas of the proposed mineral leases were protected under various State legislation, including the EPA (Qld) and the Minerals Act and made particular note of the Aboriginal Cultural Heritage Act stating that it “protects all Aboriginal cultural heritage”.

111    The Tribunal did not accept Adani’s description of the sites identified during the course of the cultural heritage surveys mentioned above as not being of “particular significance”. Nonetheless, it concluded that:

Taking into account of the grantee party’s intentions to carry out its activities in accordance with the CHMPs already entered into and also taking into account the interests under s 39(2), I must conclude that any mining activities carried out under the proposed leases are unlikely to affect any areas or sites of particular significance to the native title party in accordance with their traditions.

(f)    Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters

112    The absence of any contentions or evidence from the native title party also affected the consideration of this criterion. Adani stated that: “it cannot assess nor state the effect of grant under s 39(1)(b) as the native title party has not made its particular interests, proposals, wishes or interests known to [Adani] in relation to the management, use or control of the areas of the proposed leases”. With respect to this contention, the Tribunal member interposed: “I note that the native title party did not submit contentions or evidence to inform the parties.” However, Adani went on to claim that: “to the extent that any views about the grant of the proposed leases have been made known during negotiations, they ‘have related to the development of the Project and the content of the proposed agreement, rather than the threshold issue of whether an alternative use to mining should be conducted on the Subject Land’”. It added that: “discussions are ongoing in respect of employment and commercial opportunities”. The Tribunal member did not appear to accept this latter claim, stating that: “As there is no further information regarding these opportunities and possible benefits, they appear to me to be speculative in nature.”

113    For its part, the State relied upon the lack of any objection from the native title party to the grant of ML70505 and ML70506. It also noted that the native title party and Adani “were close to authorising an Indigenous Land Use Agreement (ILUA) and executing a s 31 Deed concurrently with the authorisation of the ILUA, but that issues arose within the Native Title Party at the time of authorisation of the proposed ILUA.”

114    In relation to this criterion, the Tribunal made specific reference to the Social Impact Assessment section of the Executive Summary to the EIS – Part 3 of Annexure K (see at [30] above). It noted that it began with a statement that “Adani has developed a number of management and mitigation measures and commitments in order to address both the positive and negative potential impacts of the Project”. The Tribunal then set out a list of measures that Adani proposed to undertake and noted a statement from the Executive Summary above that “stakeholder input will be critical to the implementation of these measures which will be carefully developed in collaboration with relevant organisations, agencies and individuals”.

115    The Tribunal’s consideration and conclusion on this criterion were expressed together in the same paragraph (at [100]) as follows:

As noted … above, [Adani] says that discussions are ongoing although detail is lacking. The measures attached to the Social Impact Assessment also provide some assurance. The collaborative approach described suggests that there may be a forum by which to continue engaging in relation to the interests, proposals and wishes of the native title party. The [State’s] contention suggests the native title party has a passive approach by way of neither consenting nor objecting, but there is no confirmation of this from the native title party. Without knowing the specific interests, wishes and proposals of the native title party in relation to the management, use or control of the land, it is unclear as to how [Adani’s] measures and indeed, the grant of the leases themselves, would affect those interests. In the absence of contrary evidence from the native title party, I am unable to conclude that the grant of the proposed leases would adversely affect the interests, proposals or wishes of the native title party.

(g)    Section 39(1)(c) – economic or other significance

116    Since this criterion is at the heart of Mr Burragubba’s challenge to the Tribunal’s determination, it is appropriate to set out this section of the Tribunal’s Reasons almost verbatim. Under the heading “Material provided”, the Tribunal first set out the details of the State’s materials, as follows:

[101]    The [State] is of the view that the grant of the proposed leases would be economically favourable to the State, local communities and indigenous populations through the provision of ‘employment opportunities, infrastructure upgrades, improved services, royalties and economic stimulus to local towns and businesses within the proximity to ML70505 and ML70506’ ...

[102]    Broadly speaking, [Adani] contends the economic impacts of the proposed grants will be significantly positive to Australia, the State and the local region through expenditure in the community, employment, payment of taxes, State royalty and infrastructure charges and use of resources in the community, surrounding region and the State and increased spending patterns and employment in service industries. [Adani] regards the benefits as impacting internationally and it aims to maximise the benefits through the imposition of policies and measures inclusive of a focus on encouraging local participation in regional and State based industry and participation and up skilling of disadvantaged groups. There is no further information given so I may reasonably infer that these policies are an intention at this point.

117    Adani’s materials were then summarised by the Tribunal as follows:

[103]    For the project as a whole, the following anticipated figures in respect of the mine component are provided (as shown in the Environmental Impact Statement annexed to [Adani’s] material):

a)    For the life of the mine, $21.5 billion in capital investment;

b)    For the constructions years: for the Mackay region, an average $78.2 million per year during construction years for the mine in direct and indirect benefits on the region’s Gross Regional Product; for the State, $203 million per year; for household income and employment levels by way of 1192 full time equivalent jobs per year for Queensland, 378 of which for the Mackay region;

c)    For the operational phase of the mine component:

(i)    total Gross Regional Product per year at the point of full production (60 Mtpa per annum) in the Mackay region to increase by $3795 million and in the State, $4170 million;

(ii)    household income benefits to reach $372.2 million for Mackay region and $573.5 million for the State;

(iii)    local employment levels are expected to ‘see an increase of’ 4093 full time equivalent jobs in the Mackay region and 6789 for the State.

[104]    For the project, the following anticipated benefits for the rail component are estimated by [Adani] (as shown in the Environmental Impact Statement executive summary annexed to [Adani’s] material):

(a)    For the years constructing the rail infrastructure (benefits of which are expected to be most significant for the first two years): for the Mackay region, an average $145 million per year in direct and indirect impacts on Gross Regional Product; for the State, $229 million per year and on average 1451 full time equivalent jobs for the Mackay region and 2481 for Queensland;

(b)    For the operational phase: impacts are expected to increase consistent with the mine’s production rates; total impacts on Gross Regional Product per year at the point of full production (i.e. 60 Mtpa) are estimated at $176.6 million for the Mackay region and $274.1 million for the State; household income benefits for the Mackay region to reach $107.2 million and for the State, $157.9 million; employment levels are expected to see an increase of 1215 full time equivalent jobs for the Mackay region and 2025 for the State.

[105]    Furthermore, [Adani] notes that the port expansion works are expected to generate ‘substantial economic and social benefits for the State and local region’ ...

[106]    In terms of social significance, as the broad wording of s 39(1)(c) may incorporate, [Adani] states that the proposed grants will have a positive impact due to the influx of people to the regional community expected affecting the local economy.

118    The Tribunal began its consideration of this criterion by adopting the approach taken in an earlier decision of the National Native Title Tribunal as follows (at [107]):

The evaluation of the economic or other significance of the act under this sub-section requires specific evidence about the subject future act. I adopt the approach of Member Sosso in Drake Coal v Smallwood at [102]-[104] as follows:

[102]    A few observations can be made about the statutory task required of the Tribunal. First, the paragraph focuses on the significance of the act. It is not a generalised inquiry about the importance of exploration or mining to the economy (localised or national). It is a specific evaluation about the impact of the future act the subject of the inquiry. Accordingly, the Tribunal is not required under this paragraph to look any further than the evidence of how the proposed future act will impact on the economies and persons specified. Issues about the benefits of the mining industry to the health of the local, Queensland or Australian economy are not relevant to this paragraph. The only focus of this paragraph is the act in question and the only issue which the Tribunal is required to evaluate is the significance of the future act. The symbolic, cumulative or ripple impacts of the future act fall outside the purview of this paragraph.

[103]    Second, the inquiry is not limited to the economic consequences of the proposed future act – see Western Australia v Thomas (1996) 133 FLR 124 at 175. The term “other significance” is potentially broad and can only be sensibly dealt with in terms of the evidence produced at a particular inquiry. I do not read the term “other significance” as being limited to impacts of an economic or wealth related nature. It could be that the doing of the future act could have beneficial impacts for the advancement of medical or related research. For example, the minerals proposed to be extracted could be critical for medical research, or any other field of human endeavour. The “significance” of granting the right to mine must therefore be viewed in an expansive sense and not purely and necessarily from the quantum of money that will be generated from the extraction of the relevant material from the relevant land or waters.

[104]    Finally, the Tribunal is required to evaluate the significance of the proposed act to indigenous persons living within close proximity to the proposed tenement. It should be noted that the Act is not worded to limit the inquiry to members of the native title claim group. Rather, the inquiry focuses on the significance of the act to indigenous persons generally. For example, it may be that a proposed mine will generate jobs and related benefits to indigenous Australians who live nearby whether or not they are members of the claim group. The 1998 amendments to this paragraph were designed to ensure that in any proper inquiry the interests of local indigenous persons living and having responsibilities in the general area were given proper weight.

(Emphasis in original)

119    The Tribunal then concluded (at [108]) that:

I understand the figures provided by [Adani] above to be applicable to the Project rather than the proposed grants themselves, however, I accept that the benefits to the Project will be experienced in the area of the proposed leases. On the evidence before me, I conclude that grant of the leases will have a positive economic impact.

(h)    Section 39(1)(e) – the public interest

120    On this criterion, Adani contended that “the grant of the proposed leases will serve the public interest by contributing to ‘developing and maintaining a mining industry that generates very considerable export income, employment opportunities and wealth for the local, State and national economies’”. It then set out the measures it proposed to take by way of management and mitigation initiatives to handle the impacts of the project, as set out in the Social Impact Assessment section of the Executive Summary to the EIS already mentioned above. It added that it “also regards the project being declared ‘significant’ under the [State Development Act] as relevant in terms of the expected significant contribution that grant of the proposed leases and subsequent mine and railway development.”

121    The State relied upon three earlier decisions of the National Native Title Tribunal to support its contention that the grant of the leases would be in the public interest.

122    The Tribunal noted, with apparent approval, each of these submissions and concluded: “In the absence of contrary material from the native title party, I accept that the public interest will be served by the grant of these proposed leases.”

(i)    Section 39(1)(f) – any other matter the arbitral body considers relevant

123    The Tribunal began its consideration of this criterion by noting the wide discretion it had to take into account other matters. It then referred back to the submission Adani had made concerning the use that should be made of Mr Burragubba’s statement to the effect that:

… in making its determination, the NNTT must take into consideration the matters specified in section 39(1) of the Native Title Act 1993 (Cth). In particular, section 39(1)(f) provides: (1) In making its determination, the arbitral body must take into account the following: ...(f) any other matter that the arbitral body considers relevant’ … ‘Adani’s position is that the NNTT must determine whether the Document is relevant to the determination.

124    However, the Tribunal observed that Adani did not specifically state whether it thought Mr Burragubba’s statement was relevant and nor did any of the other parties specifically mention s 39(1)(f). On that basis, it reiterated its view that “Mr Burragubba’s statement is not relevant”. Accordingly, its conclusion on this criterion was: “Based on the material before me, I am of the view there are no further relevant matters to be addressed.”

(j)    Section 39(2) – existing use of land or water by persons other than the native title parties

125    Noting the contentions made by Adani and the State in relation to similar aspects to those raised by this criterion, the Tribunal concluded, in relation to this criterion, that:

I am satisfied there are a range of existing non-native title uses of the land and non-native title rights and interests, clearly established with evidence from both [Adani] and [the State]. These uses and interests have had some bearing on the effect of the proposed acts on the matters in s 39(1)(a), as explained within each sub section above as appropriate.

(k)    Section 39(4) – Issues relevant to the inquiry on which the negotiation parties agree

126    Noting that neither Adani nor the State had identified any such agreed issues, the Tribunal did not draw any conclusion under this criterion. It should also be noted that s 39(3) was not addressed by the Tribunal presumably because it does not contain a separate criterion, but rather qualifies the criterion in s 39(1)(a)(v).

Conclusion

127    The Tribunal’s ultimate determination is set out above (at [44]) and does not require repeating here.

Mr Burragubba’s amended originating application

128    Mr Burragubba was granted leave to amend grounds 1, 3 and 4 of his originating application on a number of occasions during the oral submissions on the first two days of the hearing. The changes were so significant that the hearing had to be adjourned to allow the respondents an opportunity to prepare and present written and oral submissions in response to them. The changes also had the effect of creating a disjunction between some of Mr Burragubba’s pre-hearing written submissions and some of his earliest oral submissions and his case as stated in his final further amended originating application. Consequently, I emphasised on a number of occasions during the hearing that I intended to decide Mr Burragubba’s case as outlined in the latter document and would ignore any submissions that were inconsistent with, or contradictory of, it.

129    In their final amended form, Mr Burragubba’s four grounds of challenge to the Tribunal’s determination (excluding particulars) were as follows:

1.    The Decision was induced or affected by circumstances analogous to fraud or, alternatively, the procedures that were required by law to be observed in connection with the making of the Decision were not observed, in that:

(a)    [Adani] submitted to [the Tribunal] material concerning the economic impact of the project (the “economic material”) of which the two proposed mining leases ML 70505 and 70506 were a central component, for the purposes of [the Tribunal] making the Decision;

(b)    at the time it submitted the economic material, [Adani] had in its possession material which was materially different from the conclusions of the economic material;

(c)    [Adani] deliberately refrained from providing [the Tribunal] with the material which was materially different from the conclusions of the economic material;

(d)    by submitting only the economic material, while refraining from providing other material in its possession which was materially different from the conclusions of the economic material, [Adani] represented that the accuracy of the economic material was not subject to dispute (the “representation”);

(e)    when making the representation, [Adani] was dishonestly misleading;

(f)    dishonestly misleading conduct is conduct analogous to fraud within s.5(1)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or, in the alternative, such conduct has caused and resulted in a failure to observe the requisite procedures in connection with the making of the Decision within s.5(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth); and

(g)    the Decision was induced or affected by the representation.

“The procedures that were required by law” [see 1 above] was the requirements that the parties not conduct themselves in a manner analogous to fraud when participating in the process.

“The process” means the decision-making process of [the Tribunal] leading to the Decision.

2.    [The Tribunal] failed to observe the rules of natural justice, or constructively failed to exercise its jurisdiction, by failing to make obvious inquiries into the basis and extent of the objections that the Applicant sought to make.

…

3.    The Decision was an improper exercise of power reposed in [the Tribunal], in that when making the Decision [the Tribunal] failed to take into account a relevant consideration being material related to the matters set out in ss.39(1)(a)(i)-(iii) and 39(1)(b)-(e) of the NTA.

…

4.    The Decision involved an error of law, being that [the Tribunal] erroneously concluded that the reference to ‘native title party’ in the criteria of s.39(1) was a reference to the persons collectively comprising the applicant in the [Wangan and Jagalingou] application when [the Tribunal] should have concluded that the term was a reference to the members of the native title claim group or the native title party for the [Wangan and Jagalingou] application.

…

(Emphasis in original)

130    Some months after I reserved judgment in February 2016, Mr Burragubba successfully applied to reopen his case and to make a further amendment to his originating application. That amendment was occasioned by the subsequent decision of the relevant State Minister, on 3 April 2016, to grant the two mining leases in question to Adani. Accordingly, Mr Burragubba sought to amend the relief he had claimed in his second further amended originating application to attempt to address this development. In its final amended form, the relief claimed was as follows:

1.    An order setting aside the Decision.

1A.    An order remitting the matter to the Tribunal for decision according to law.

1B.    An order that the [State] and [Adani] pay [Mr Burragubba’s] costs of the proceeding.

2.    A declaration that mining leases ML 70505 and ML 70506, granted on 3 April 2016, are not acts that satisfy the requirements of any of the subparagraphs of s.28(1) of the Native Title Act 1993 (Cth).

3.    Any other orders the Court deems fit.

131    In considering the four grounds of challenge to the Tribunal’s determination above, I will adopt the order in which Mr Burragubba’s counsel addressed them: 1, and then 4, 3 and, finally, 2. I should also note that grounds 4, 3 and 2 essentially relate to the same issue, namely, the construction of s 39(1) of the NTA and whether or not the Tribunal should have had regard to the communications it received from Mr Burragubba and Ms Bobongie.

Ground 1 – conduct analogous to fraud

Introduction

132    Mr Burragubba’s first ground of review relies upon s 5(1)(g) or, in the alternative, s 5(1)(b) of the ADJR Act. Those sections provide:

5 Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

…

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

…

(g)    that the decision was induced or affected by fraud;

133    Before summarising the contentions of the parties on this first ground, it is convenient to set out the particulars Mr Burragubba provided in support of it because they help to explain how this ground arises from the detailed factual background set out above. In doing so, I find that all, except (d), (e), (f) and (g), have been established on the evidence. I will consider the exceptions when I consider the factual issues that arise in this first ground later in these reasons.

Particulars

(aa)    On 23 October 2014, the [Tribunal] made directions for the conduct of the proceeding that resulted in the Decision.

(ab)    The directions of the [Tribunal] included a direction that [the State and Adani] file their contentions in respect of the proposed future acts, and the evidence relied upon, related to the criterion in s.39(1)(c) by 16 January 2015 (direction 6).

(a)    [Adani] made submissions to the Tribunal on 16 January 2015 seeking a determination in the form that was ultimately made as the Decision.

(b)    In support of the submission in (a), [Adani] put before the Tribunal as evidence or material on which the Tribunal should rely Environmental Impact Statement documents (the “EIS”) for the Carmichael Coal Mine and Rail Project (the “Carmichael Project”).

(c)    In proceedings in the Land Court of Queensland:

(i)    [Adani] retained an expert, Mr John Fahrer;

(ii)    on 19 December 2014, Mr Fahrer and another expert, Mr Roderick Campbell, produced a document (the “Expert Agreement”) setting out their agreed views about the EIS;

(iii)    Mr Fahrer prepared a preliminary report (the “First Report”) which set out his expert opinion about the economic impact of the Carmichael Project, and gave it to [Adani] on 12 January 2015;

(iv)    Mr Fahrer prepared a final report (the “Second Report”) which set out his expert opinion about the economic impact of the Carmichael Project, and gave it to [Adani] on 30 January 2015.

(d)    The Expert Agreement identified that the EIS:

(i)    used modelling which was likely to have over-estimated the economic benefit of the project;

(ii)    did not provide insight into the financial viability or economic efficiency of the Carmichael Project.

(e)    Both the First Report and the Second Report were materially different from the EIS, in that:

(i)    the EIS:

A.    estimated employment increase from the Carmichael Project, in its operational phase, as 4,093 full time equivalent jobs in the Mackay region and 6,789 full time equivalent jobs for Queensland;

B.    estimated the increase to gross regional product from the Carmichael Project at the point of full production, as $3,795 million per annum for the Mackay region and $4,170 million per annum for the State;

(ii)    the First Report and the Second report:

A.    estimated the employment increase from the Carmichael Project as 483 full time equivalent jobs in the Mackay Region and 1,206 full time equivalent jobs for Queensland;

B.    estimated the increase to real economic output from the Carmichael project as approximately $1,617 million per annum in the Mackay region (based on $51,749 million for the period 2015-2047) and as approximately $1,876 million per annum in Queensland (based on $60,024 million for the period 2015-2047).

(f)    When making the Decision, the [Tribunal] relied upon the EIS at [103], [104], [108] and [112] of its reasons for decision of the [Tribunal] dated 8 April 2015 (the “Reasons”);

(g)    It is to be inferred that the officers or employees of [Adani] knew:

(i)    after 12 January 2015, that the EIS was materially different to the First Report;

(ii)    after 30 January 2015, that the EIS was materially different to the Second Report.

(h)    Before the [Tribunal] made its decision on 8 April 2015, [Adani] did not withdraw the EIS from consideration by the Tribunal, or alert the Tribunal as to the existence of the Expert Agreement, the First Report or the Second Report.

(Emphasis in original)

Mr Burragubba’s contentions

134    Mr Burragubba’s counsel acknowledged in oral submissions that this first ground of review was “concerned with the development of the public law”. To achieve that development, he relied heavily on the High Court judgment in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 and the judgment of French J in the Full Court judgment in the same matter: Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142. Based on those judgments, he sought to draw a distinction between “the ‘red blooded’ species of fraud which engages the common law”, quoting SZFDE in the High Court (at [13]) and conduct vitiating a public law decision which was analogous to fraud (quoting the expression used in SZFDE by French J at [110], [112], [115], [116], [119], [121] and [122]. Mr Burragubba also placed particular reliance on the decision of Kearney J in R v Deland; Ex parte Willie (1996) 6 NTLR 72 (Deland) which was examined by French J in SZFDE at [114]–[115]. In doing so, he submitted Adani’s submissions to the effect that Deland and the other decisions relied upon by French J were distinguishable because they were all criminal cases, should be rejected. He also relied upon two decisions of this Court, the second relating to the issue of search warrants: Barrett v Minister for Immigration, Local Government & Ethnic Affairs (1989) 18 ALD 129 (Barrett) at 133 and Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 (Lego) at 555–556.

135    Mr Burragubba accepted that the fraud ground of review in s 5(1)(g) of the ADJR Act required “dishonesty affecting the decision under review” or “material dishonesty”. However, he contended that, where the conduct concerned a representation, objective dishonesty was sufficient, relying upon the observations of Toohey and Gaudron JJ in Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 (Peters) at [18]. Accordingly, Mr Burragubba contended that the subjective knowledge or intention of the officers of Adani who were involved was not relevant to whether their conduct should be assessed as dishonest. On this approach, he relied on the knowledge held by Mr Haseler, Adani’s General Counsel, and Mr Manzi, the Head of Environment and Sustainability at Adani as demonstrating “objective dishonesty”. In particular, he pointed to the following items of knowledge held by those officers:

(a)    Mr Manzi knew that the Joint Report (described at [133(c)(ii)] above as the Expert Agreement) criticised the input/output methodology used in the economic material (described at [129(1)(a)] above), that is section 3 of the Executive Summary to the EIS, and that the Dr Fahrer’s First and Second reports produced results different to those recorded in that economic material;

(b)    Mr Haseler knew that:

(i)    the Joint Report, the First Report and the Second Report had been prepared with different methodologies and assumptions to that of the economic material;

(ii)    the First Report and the Second Report expressed different opinions to those in the economic material; and

(iii)    the factual assumptions adopted within the economic material were different to those of the First Report and the Second Report.

136    Mr Burragubba’s counsel denied he was under any obligation to cross-examine Mr Haseler or Mr Manzi and put to them the accusation that their knowledge and conduct was, in the circumstances, dishonestly misleading. As noted above, he claimed that their subjective views were irrelevant and the fact they claimed not to appreciate the falsity of the representation was beside the point.

137    According to Mr Burragubba, by reason of this knowledge held by Mr Manzi and Mr Haseler, Adani “knew that the economic material [the EIS] was subject to dispute” and it was that knowledge which “renders the representation dishonestly misleading”. Specifically, Mr Burragubba contended that, by providing the economic material from the Executive Summary to the EIS and withholding the Joint Report and the First and Second Reports of Dr Fahrer, Adani impliedly represented that the accuracy of the economic material in the EIS was not in dispute. This representation is defined at [129(1)(d)] above. He contended that this representation was a “half-truth” because, although those three reports did not “totally contradict” the economic material in the EIS, they qualified the validity of it. The basis upon which Mr Burragubba claimed the two sets of economic materials were materially different is described at (e) of the particulars set out at [133] above.

138    Mr Burragubba relied upon eight “multifactorial factors” to attempt to establish that the conduct of Adani’s officers was “dishonest according to ordinary notions”. As outlined in his counsel’s oral submissions, they were:

(a)    the significance of the subject matter, for example a criterion that the arbitral body must take into account;

(b)    the ease with which the subject matter withheld could have been provided to the decision-maker, for example the three reports in question were, in total, 100 pages in length;

(c)    the calibre of the author of the withheld material, for example Dr Fahrer held a PhD from Princeton University in the United States of America and his supervisor was Mr Ben Bernanke, the then chair of the US Federal Reserve;

(d)    the stage of the decision-making process at which the material was withheld, for example whether the material was withheld during the decision-making process itself or was not available until a considerable period of time after the decision had been made;

(e)    the objective significance of the decision to be made by the decision-maker, for example the grant of a lease for 30 years as compared to the grant of a temporary licence for seven days;

(f)    the capacity of the other party to provide the withheld material to the decision-maker, for example material that is readily available in the public domain as compared to material that is commercial-in-confidence to a particular party;

(g)    the existence of any relevant expectations in relation to the conduct; and

(h)    the ability of the decision-maker to gain access to the withheld material by making his or her own inquiries.

139    Mr Burragubba also contended that Adani was under an obligation “both legal and practical” as a consequence of the directions made by the Tribunal member to provide to the Tribunal whatever expert evidence was peculiarly known to it concerning the economic impact of the Carmichael project.

140    Finally, in response to Adani’s contentions that the Joint Report and the two further reports of Dr Fahrer (the First and Second Reports) demonstrated the economic benefits of the Carmichael project and that, therefore, those reports “could not have made any difference to the [Tribunal’s] ultimate conclusion”, Mr Burragubba contended that this was not the correct test. Instead, he submitted, the test was whether “the fraud alleged … contributed to the decision made”. He contended its contribution to the decision could be reasonably inferred from paragraphs [103], [104], [108] and [112] of the Tribunal’s Reasons (see (g) of the particulars set out at [133] above).

The State’s contentions

141    The State contended that there was little or no support for Mr Burragubba’s contentions to be found in the judgment of French J in SZFDE or the High Court’s judgment in the same matter. With respect to the judgment of French J in SZFDE, it submitted that the authorities discussed by his Honour, where dishonesty was not found to be essential, were distinguishable because they were criminal matters involving either the deliberate concealment of material that would have assisted an accused at trial, or failures on the part of the prosecution, or of police officers, to carry out their lawful duties. The State submitted that, in SZFDE, French J did not anywhere mention the expression “objective dishonesty”. To the contrary, it submitted, where his Honour described the effect of fraud and “analogous circumstances” (SZFDE at [122]), the examples he gave both involved dishonest conduct. With respect to the English authorities mentioned in the last sentence of that paragraph, the State submitted that French J was there distinguishing those authorities, rather than endorsing them. In any event, the State submitted French J’s discussion of “circumstances analogous to fraud” in SZFDE was obiter dicta because his Honour disposed of the appeal on the basis that actual dishonesty had been established on the part of SZFDE’s migration agent.

142    With respect to the High Court decision in SZFDE, the State submitted that Mr Burragubba’s reliance on the quotation contained at [13] thereof to support the proposition that dishonesty was not necessary to establish “circumstances analogous to fraud” was misplaced. It submitted that quotation dealt with administrative decisions made in bad faith and it did not support the proposition that “dishonesty or an equivalent state of mind such as indifference to truth or falsity” was not a necessary element in circumstances that were analogous to fraud. The State contended that its position was supported by the authorities dealing with the issue of search warrants where, it submitted, proof of dishonesty or similar impropriety was held to be necessary, citing Majzoub v Kepreotis [2009] NSWSC 1498 (Majzoub) and Seven West Media Ltd v Commissioner, Australian Federal Police (2014) 223 FCR 234; [2014] FCA 263 (Seven West).

143    Finally, since Mr Burragubba’s alternative reliance on s 5(1)(b) of the ADJR Act depended on the same conduct as for his primary ground under s 5(1)(g), the State submitted it added nothing to Mr Burragubba’s case on this first ground.

Adani’s contentions

144    Adani contended that nothing less than fraud was required under s 5(1)(g) of the ADJR Act. It contended that both French J and the High Court were satisfied that fraud had been established in SZFDE and there was nothing in those judgments that could support the extension of s 5(1)(g) to something less than fraud, such as “circumstances analogous to fraud”. Alternatively, if conduct analogous to fraud were held to be sufficient for the purpose of s 5(1)(g), Adani submitted that there was nothing in the judgment of French J or the High Court in SZFDE to the effect that dishonesty was not an element of such conduct. Furthermore, it cited two High Court decisions: Peters at [114] and Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 (Macleod) at [130]); and a Federal Court decision (SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871 at [66]); which, it submitted, held that dishonesty was required. It submitted that those authorities and the decision in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 (Krakowski) (at 576–577) established that, to make an allegation of dishonesty, the moving party must establish a dishonest state of mind on the part of the person concerned. Accordingly, it contended that, in this matter, Mr Burragubba had to establish that:

(a)    one or more officers of Adani was conscious that its conduct conveyed to the Tribunal a representation that the economic material was not subject to dispute;

(b)    because of what was said in the three expert reports presented to the Land Court, the officer or officers of Adani involved knew that representation was false; and

(c)    they deliberately refrained from providing those expert reports to the Tribunal in order that the false representation might not be displaced, thereby securing a favourable determination from the Tribunal.

145    Adani submitted that it had adduced evidence from Mr Manzi and Mr Haseler about their knowledge and belief with respect to the three reports in question and established that: they did not believe they “undermined or made unreliable the economic assessment in the EIS” and that they did not believe it was “misleading to refrain from providing [those] reports to the Tribunal”. In this respect, Adani submitted that mere knowledge of the existence of those three reports was not sufficient to establish dishonesty.

146    In relation to Mr Burragubba’s alternative reliance on s 5(1)(b), Adani adopted the same position as the State, namely that it was not materially different from his primary reliance on s 5(1)(g) and if his primary reliance on the latter failed, so would his alternative reliance on the former. In any event, Adani submitted that Mr Burragubba had not pointed to any procedures “required by law” that the Tribunal had failed to comply with under s 5(1)(b).

147    With respect to the six English decisions and the three Australian decisions (including SZFDE itself) discussed by French J in SZFDE, Adani submitted there were three critical features present in all, namely:

(a)    the prosecution or police authorities involved were under a general duty to disclose relevant evidence to the other party, or the court;

(b)    the evidence not disclosed was important to the position of a party to the proceeding; and

(c)    the evidence not disclosed was of fundamental importance such that the suppression of it made the resulting decision unfair.

148    Adani submitted that none of those three critical features was present in this case because it was under no duty to disclose any particular evidence to the Tribunal, or to the other parties. It was therefore entitled, so it contended, to choose the evidence that it wished to place before the Tribunal subject only to the requirement that it could not deliberately mislead it. As to Mr Burragubba’s contention that the directions made by the Tribunal member imposed some obligation on it to make full disclosure, Adani pointed out that all parties were required to put forward contentions and evidence relating to the “economic or other significance” criterion in s 39(1)(c) of the NTA.

149    Adani submitted that, in any event, the expert reports in question were not favourable or helpful to Mr Burragubba. To the contrary, Adani contended they were favourable to it (albeit less favourable than the EIS) because they concluded that the Carmichael project “would produce a significant economic benefit”. For this reason, Adani submitted, no unfairness was caused because those expert reports would not have affected the Tribunal’s determination.

The questions to be answered