Federal Court of Australia

Glencore Coal Pty Limited v Franks [2021] FCAFC 61

ORDERS

THE COURT ORDERS THAT:

1.    The appellant is to pay the respondents’ costs of the appeal to be taxed failing agreement.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Heritage Act) provides a mechanism whereby the Minister for the Environment (the Minister), after receiving an application from “an Aboriginal or a group of Aboriginals”, may make a legislative declaration protecting or preserving a specified area from injury or desecration (the s 10 process). This case arises out of an application by the respondents, Scott Franks and Robert Lester, for a declaration under s 10 of the Heritage Act in relation to land including an area known as the Ravensworth Estate. The respondents applied for the declaration in their stated capacity as representatives of the Plains Clan of the Wonnarua People.

2    This is an appeal from a decision of a single judge of this Court refusing the application for leave by the appellant, Glencore Coal Pty Limited (Glencore), to use the anthropological report of an independent expert, Dr Lee Sackett (the Sackett report), filed in an earlier native title claimant application instituted on behalf of the Wonnarua People in the Federal Court (the native title proceeding). Specifically, Glencore sought a release from the implied Harman undertaking to use the Sackett report for the purpose of making representations concerning the s 10 application. The Sackett report had been filed and served on the respondents in the native title proceeding, including Glencore, but was not tendered in evidence as the native title claimant application was withdrawn prior to trial.

3    The notice of appeal alleges that the primary judge erred in a number of respects in dismissing Glencore’s application which may be summarised as follows.

(1)    Ground 1 alleges that the primary judge erred in finding at [39] of her reasons (primary judge’s reasons (PJ)) that, if Glencore was given leave to use the Sackett report in the s 10 process, this could potentially affect the willingness of First Nations peoples to co-operate with, or participate in, court processes because the report was borne out of the mediation process undertaken in the native title proceeding.

(2)    Grounds 2 and 3 allege that the primary judge erred in concluding at [31], [32] and [40] of her reasons that there was the potential for unfairness or prejudice to the respondents or other First Nations peoples if the Sackett report were released because they had not respectively been given an opportunity to provide cogent evidence to support their claim or to be heard.

(3)    Ground 4 challenges the primary judge’s conclusion at [41] that the release of the Sackett report to Mr Daniel Leo, anthropologist, who was preparing the report for the Minister under s 10 of the Heritage Act might “embarrass, if not prejudice Dr Sackett.”.

(4)    Ground 5 alleges error by the primary judge in finding that the Sackett report had little if any relevance to the matters which the person appointed to report to the Minister is required to consider under s 10 of the Heritage Act.

4    We note that the appellant abandoned ground 6 of the notice of appeal at the hearing.

5    On 1 April 2021, this Court pronounced an order dismissing the appeal, with reasons and the order as to costs to be published later. Our reasons for making that order and the order that the appellant is to pay the respondent’s costs are set out below.

2.    BACKGROUND

6    What follows draws upon the more detailed description of the factual background to this matter set out in the primary judgment at [9]–[28]. On or about 7 July 2020, the respondents lodged an application with the Minister seeking a declaration under s 10 of the Heritage Act in relation to land including “the Ravensworth Estate, original properties of James Bowman, Capt. Robert Lethbridge, James Glennie, and the surrounding area” (the requested protection area).

7    The respondents’ s 10 application described the requested protection area “as a site of conflict. The area also contains the traditional grounds of the Wonnarua people.” In expanding upon these matters and the alleged source of injury or desecration to the area, the respondents explained in the application that:

(1)    the requested protection area was identified on the basis of the Glencore Glendell Continued Operations Coal Project, Aboriginal Cultural Heritage Assessment Anthropology Report on Plains Clans of the Wonnarua People (PCWP) Cultural Values prepared by the anthropologist, Associate Professor Neale Draper, on 20 June 2020 (the Draper report);

(2)    the Draper report supported the significance placed on the requested protection area, together with the report of ethno-historian, Dr Skye Krichauff, both of which were attached to the application; and

(3)    the requested protection area is a significant Aboriginal area to them because it “contains a landscape of ongoing conflict and massacre of the Wonnarua people”, contains places of ceremonial significance, and, “[w]hile our people moved throughout our lands to camp where food and hunting were plentiful and to gather raw materials for tool manufacture, we returned to this area as our belonging place”.

8    As we explain below, before making a declaration under s 10(1) of the Heritage Act that the area is a significant Aboriginal area under threat, the Minister must, among other things, receive and consider a report under s 10(4). Accordingly, the Minister subsequently appointed Mr Leo, an anthropologist, to provide a report to her with respect to the respondents’ application.

9    The requested protected area is significant in this appeal in two other respects. First, it is located between Muswellbrook and Singleton in New South Wales within an area where Glencore or its associated entities hold numerous mining tenements. Secondly, it falls within the claim area of the native title determination application filed by the respondents in this Court under s 61 of the Native Title Act 1993 (Cth) (NTA) in 2013: Scott McCain Franks & Anor on behalf of The Plains Clans of the Wonnarua People v Attorney General of New South Wales & Ors (NSD1680/2013, later NSD39/2019) (the PCWP native title proceeding). Glencore became a respondent party to that proceeding in July 2015.

10    The applicants’ claim to native title in the PCWP native title proceeding was disputed by several other Aboriginal people. As a result, the Court referred the indigenous parties to mediation under s 86B of the NTA in December 2017. Following the mediation, on 6 August 2018 at the request of the parties to the mediation and the State of NSW, Perry J made orders in that proceeding and two related native title proceedings (NSD788/2013 and NSD1093/2012) appointing Dr Sackett as an independent anthropological expert pursuant to r 23.01 of the Federal Court Rules 2011 (Cth) (FCR) and directing him to answer a number of questions on the basis of a desktop review.

11    The Sackett report was filed with the Court on 5 August 2019. As a party to the PCWP native title proceeding, Glencore received a copy of the report pursuant to the orders made on 6 August 2018, to which reference was made in the preceding paragraph. However, the report itself was never tendered in evidence, at least partly because the respondents discontinued the proceeding with the leave of the Court on 28 February 2020.

12    Glencore commenced this proceeding on 7 December 2020. In its originating application, it sought leave to use the Sackett report “for the purpose of making representations in relation to the respondents’ application under [s 10 of the Act] …”. It did so because it correctly assumed that it would be precluded by a Harman undertaking from using the Sackett report, or the information contained in it, for any purpose unrelated to the respondents’ native title proceeding.

13    It is also important to note that, in the intervening months after receiving the Sackett report, Glencore took a number of steps with respect to the report. First, Glencore attempted to acquire the services of Dr Sackett to assist it in making the representations mentioned above. It did that on 7 August 2020 when its lawyer, Ms Amaya Fernandez of Ashurst Australia, telephoned Dr Sackett to inquire whether he would be willing to provide that assistance. He responded that he was unwilling to do so because, among other things, he would have “a conflict”.

14    Thereafter, Glencore’s lawyers adopted a different approach. On 12 October 2020, 13 October 2020, 27 November 2020, and 4 December 2020, they communicated with Mr Leo and requested that he provide them with copies of the Sackett report and three earlier reports of Associate Professor Draper so that they could use them in their representations to him. They did so on the footing that all of those reports were mentioned in the Draper Report which accompanied the s 10 application. In response, Mr Leo said that he had no power to compel the respondents to produce those documents, but he would invite them to provide the documents “as part of their final comments” to his report.

15    On 25 November 2020, Mr Leo agreed to extend the deadline for submission of final comments in relation to his report from 3 December 2020 to 17 December 2020. Because of the imminent expiry of that deadline, Glencore’s application was heard by the primary judge as a matter of urgency on 14 December 2020. On 15 December 2020, her Honour made orders dismissing Glencore’s application and gave reasons ([2020] FCA 1801).

3.    RELEVANT PRINCIPLES: THE IMPLIED HARMAN UNDERTAKING

16    No issue is taken on the appeal with the primary judge’s starting point that, absent a court order, Glencore is precluded by the Harman undertaking from using the Sackett report or the information it contains for any purpose which is unrelated to the earlier proceeding (PJ at [5]). Nor is there any issue that, in order to succeed on the appeal, Glencore must establish that the primary judge made an error of the kind identified in House v The King (1936) 55 CLR 499 (House v R). As Dixon, Evatt and McTiernan JJ held in House v R at 504–505:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

17    The primary judge’s explanation of the Harman undertaking and the circumstances in which a party may be released from the undertaking were not the subject of challenge on the appeal. These principles are well established.

18    First, as her Honour correctly explained:

1    It is well-established that, subject to “inconsistent statutory provisions and to the requirements of [the] curial process in other litigation” (Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33 per Mason CJ), a party who obtains documents or information through the process of discovery is subject to an implied undertaking not to make use of them or it for a collateral purpose. The undertaking, generally known as a Harman undertaking, after Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 313, binds not only the parties and their lawyers but also others to whom the documents are given: Hearne v Street (2008) 235 CLR 125 at [109] (Hayne, Heydon and Crennan JJ). The rationale given in Harman is that the undertaking protects the confidentiality of documents which the course of justice requires to be disclosed in the litigation (Harman at 312-3 per Lord Scarman; at 321 per Lord Roskill; see also Lord Diplock at 299-300 and Lord Keith at 308). The principle, however, is not limited to documents. It extends to information derived from the documents: Crest Homes Plc v Marks [1987] 1 AC 829 at 854 (Lord Oliver). It has also been applied to answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements prepared and served in accordance with a court direction, and affidavits: Hearne v Street at [96] and the authorities referred to there. The underlying principle is that “a document furnished for use for one purpose may not legitimately be used for another”: Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 510 (McPherson J); Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Wilcox) at 223.

2    The implied undertaking is subject to the qualification that, once the material is adduced in evidence in court proceedings, it goes into the public domain unless the court restrains its publication: Esso Australia Resources Ltd v Plowman at 32-33

(emphasis in the original).

19    As earlier mentioned, the Sackett report had not been adduced in evidence in the native title proceeding so that the qualification referred to at [2] of the primary judge’s reasons did not apply.

20    Secondly, a court may release a party from the undertaking where the party concerned demonstrates “special circumstances”: PJ at [3]; Crest Homes Plc v Marks [1987] 1 AC 829; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield Nominees) at 225 (Wilcox J); Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 (Liberty Funding) at [31] (the Court). Importantly in this regard, the Full Court has emphasised that “[t]he discretion is a broad one and all the circumstances of the case must be examined”: Liberty Funding at [31] (emphasis added).

21    Thirdly, in order to establish special circumstances, “it is enough that there is “a special feature”, that is, a feature not usually present, which provides a reason for modifying the undertaking or relieving the party in question from it in the exercise of the Court’s discretion” (PJ at [33]). Thus, as the Full Court explained in Liberty Funding:

31 … The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes …

22    Fourthly, the Full Court in Liberty Funding at [31]–[32] approved the non-exhaustive list of factors identified by Wilcox J in Springfield Nominees, as a “helpful guide” to those considerations “which may, depending upon the circumstances, be relevant to the exercise of discretion.” Those considerations were:

•    the nature of the document;

•    the circumstances in which the document came into existence;

•    the attitude of its author and any prejudice that might be caused to the author;

•    whether the document pre-existed litigation or was created for that purpose and was therefore expected to enter the public domain;

•    the nature of the information in the document, especially whether it contains personal data or commercially sensitive material;

•    the circumstances in which the document came into the possession of the applicant for leave; and

•    the likely contribution of the document to achieving justice in the second proceeding

(Liberty Funding at [31]).

23    With respect to the last of these factors, we note that the processes under s 10 of the Heritage Act do not involve any exercise of judicial power. As such, the question of whether the document might contribute to “achieving justice” in a “second proceeding” does not arise. Rather, as Glencore accepted in argument, the decision-making process under s 10 concerns an exercise of executive power vested in the Minister of such breadth and nature as to have an essentially political character. In this regard, Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ held in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 (Wilson) at 19 that:

Significantly, the competing interests of Aboriginal applicants and of others whose proprietary or pecuniary interests are liable to be affected by the making of a declaration have to be determined. Such a determination is essentially a political function.

24    Thus, after listing a number of considerations of which the Minister must be satisfied before making a declaration under the provision, s 10(1)(d) of the Heritage Act provides that the Minister must consider “such other matters as he or she thinks relevant”, demonstrating the breadth of the discretion vested in the Minister. Moreover, the Minister would not be bound by a Harman undertaking were she or he provided with the expert report, in contrast to a case where the document is sought to be used in other proceedings in a court.

25    It follows that, while the relevance of the Sackett report to the discharge of the s 10 function is appropriately taken into account in the Court’s exercise of discretion as the primary judge held, the weight afforded to that factor will also be informed by other considerations which distinguish the circumstances of this case from those in cases such as Springfield Nominees.

26    Finally, Glencore correctly submitted that the circumstances in which a party may be released from its Harman undertaking were not necessarily limited to uses in judicial or quasi-judicial processes. In support of this proposition, Glencore filed supplementary submissions after the hearing of the appeal pursuant to leave in which it helpfully identified authorities illustrating a range of different contexts in which courts have released applicants from Harman undertakings for uses outside judicial proceedings. These include the following cases where leave was granted:

(1)    to the Australian Trade Commission for the purposes of an application for a search warrant and the conduct of criminal investigations (Australian Trade Commission v McMahon (1997) 73 FCR 211 (Australian Trade Commission));

(2)    to a party to provide specified documents to the Commissioner of the Australian Federal Police for the purpose of investigating potential criminal conduct and admission in evidence in relation to any prosecution for a federal offence (Ashby v Slipper (No 2) [2016] FCA 550; (2016) 343 ALR 351 (Slipper). See also Prime Finance Pty Ltd v Randall [2009] NSWSC 361 (Prime Finance) and Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd [2018] VSC 666);

(3)    to the Chief of Defence Force for the purposes of providing an unread affidavit to: (a) appropriate members of the Australian Defence Force investigating any security, disciplinary or administrative issues arising out of information in the affidavit; and (b) the Legal Services Commissioner of Queensland for the purpose of the Commissioner investigating issues arising out of the affidavit (Sinnott v Chief of Defence Force [2020] FCA 643);

(4)    to the Commissioner of Taxation to use documents from judicial proceedings for the purpose of administering the income tax legislation in relation to determining any objections by those taxpayers to assessments of tax, penalties or interest (including any subsequent appeals and reviews) (BCI Finances Pty Ltd (in liq) v Commissioner of Taxation [2015] FCA 679);

(5)    to parties to use affidavits served in earlier proceedings in settlement discussions with the Commissioner of Taxation (In the matter of Bluemine Pty Ltd (in liq) [2019] NSWSC 1474); and

(6)    to use documents produced under subpoena in a proceeding in which the applicant contended a development consent had lapsed, for the purpose of providing the documents to a local council in order to allow it to consider, in the context of a fresh development application, whether the development consent the subject of the proceeding had lapsed (Boronia Park Preservation Group Inc v MSMG Developments Pty Ltd (No 2) [2015] NSWLEC 155).

27    The respondents submitted that in each of these examples, leave to use the documents was granted “in circumstances where not only would the matter ultimately be subject to the court’s supervision at some point in the subsequent process, but each of the two uses involved a dispute or controversy between a commonality of parties” (respondents’ supplementary submissions filed 29 March 2021 at [9]). However, it was not the case that in each of these examples, subsequent proceedings in a court were inevitable even though, for example, an investigation into the possible commission of a crime might lead to a prosecution.

28    More importantly, these examples establish, as Flick J held in Slipper, that:

10 … Reasons for relaxing the constraint frequently involve considerations going beyond the immediate interests of the parties to particular litigation (and those whose otherwise confidential materials have been subpoenaed) and involve the wider public interest, including the public interest in the administration of justice and the administration of the law more generally. In the present case, these considerations include the enforcement or administration of the criminal law.

See also eg Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833 at [13]–[14] (Merkel J); Australian Trade Commission at 217 (Lehane J).

29    The following passages from the judgment of Johnson J in Prime Finance describing the balancing process which the Court undertakes where competing public interest considerations weigh in favour of and against release from the Harman undertaking are illustrative, albeit that the present case does not involve the administration of criminal law:

37    The courts have recognised that there can be a public interest in favour of disclosure in respect of information that is relevant to the investigation and prosecution of a criminal offence, which can override the public interest, in the administration of justice, in the preservation of the confidentiality of discovered documents: Rank Film Distributors Limited v Video Information Centre [1982] AC 380 at 447; Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 at 486-487, 490-491; Moage Ltd v Jagelman at 176-177 [16], [21]; North East Equity Pty Limited v Golden West Equities Pty Limited [2008] WASC 190 at [42]-[45].

…

39    Where a conflict arises, the Court must weigh up the competing public interests, as it will not necessarily be in every case where documents are sought in respect of the investigation and prosecution of the offence that the public interest in disclosure will outweigh the public interest in the preservation of the confidentiality of documents subject to the implied undertaking. Where an application such as this is made, it has been said that factors relevant to the exercise of the Court’s discretion will include the nature of the offence alleged, the cogency of the evidence sought to be adduced in support of it, the authority to which the documents are sought to be disclosed, the manner of the authority’s intended use and the possibility of misuse by that authority and any prejudice, actual or potential, which may be occasioned by the disclosure: Bailey v Australian Broadcasting Corporation at 486; North East Equity Pty Limited v Golden West Equities Pty Limited at [43]. A further relevant factor is whether the application has been brought for some personal advantage or improper purpose, rather than to advance the public interest: North East Equity Pty Limited v Golden West Equities Pty Limited at [44].

30    In the present case, as we later explain, that public interest includes the administration of the NTA and, in particular, in promoting an object of that Act to encourage and facilitate the resolution of native title claims through negotiation, mediation and conciliation.

4.    THE ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT 1984 (CTH)

31    Section 10 of the Heritage Act provides that:

(1)    Where the Minister:

(a)    receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

(b)    is satisfied:

(i)    that the area is a significant Aboriginal area; and

(ii)    that it is under threat of injury or desecration;

(c)    has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and

(d)    has considered such other matters as he or she thinks relevant;

he or she may, by legislative instrument, make a declaration in relation to the area.

(2)    Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

(3)    Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:

(a)    publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:

(i)    stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;

(ii)    inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and

(iii)    specifying an address to which such representations may be furnished; and

(b)    give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4)    For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

(a)    the particular significance of the area to Aboriginals;

(b)    the nature and extent of the threat of injury to, or desecration of, the area;

(c)    the extent of the area that should be protected;

(d)    the prohibitions and restrictions to be made with respect to the area;

(e)    the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

(f)    the duration of any declaration;

(g)    the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

(h)    such other matters (if any) as are prescribed.

32    The term “Aboriginal” is defined in s 3(1) to mean simply “a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands”.

33    The phrase “significant Aboriginal area” is defined in the same provision as meaning:

(a)    an area of land in Australia or in or beneath Australian waters;

(b)    an area of water in Australia; or

(c)    an area of Australian waters;

being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.

34    In turn, “Aboriginal tradition” is defined as “the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships” (s 3(1)).

5.    CONSIDERATION

5.1    Did the primary judge err in taking into account the fact that the Sackett report was borne out of mediation (Ground 1)?

35    Ground 1 of the notice of appeal challenges the primary judge’s finding at [39] of her reasons. Placing that finding in context, her Honour held that:

38    On the one hand, the [Sackett report] is a report of an independent expert. It came into existence as a result of an application to which Mr Franks and Mr Lester were parties. But for the decision of Mr Franks and Mr Lester to discontinue the Native Title Proceeding, there was at least a real prospect that it would have been admitted into evidence and therefore enter the public domain. The document does not contain commercially sensitive material or personal data of the kind I expect Wilcox J [in Springfield Nominees] had in mind. The Native Title Proceeding and the s 10 application have some common features, notably the common applicants and the common interest Glencore has in them.

39    On the other hand, while the Sackett report may have found its way into evidence had the Native Title Proceeding not been discontinued, Mr Franks contended that the report was prepared for the purpose of a mediation in the Native Title Proceeding. The orders made by Perry J do not limit its use in this way but it is apparent from the Joint progress report delivered to the Court which supported those orders that it was borne out of the mediation process and conceived as a vehicle to assist in the settlement of the proceeding or issues in the proceeding. One should be cautious about granting relief from the Harman undertaking in these circumstances. Giving leave to Glencore, which was not a party to the mediation, to use the report for an ulterior purpose could conceivably affect the willingness of First Nation peoples to cooperate with, or participate in, the Court’s processes

(emphasis added).

36    Contrary to the primary judge’s findings emphasised in the passages above, Glencore submits that the fact that the Sackett report was “borne out of the mediation process” was irrelevant because it was created for the purposes of the litigation and could have been expected to enter the public domain given the following matters:

(1)    the Joint Progress Report contemplated that the Sackett report would be used outside mediation and in particular, may lead to the parties resolving or reconfiguring their claims consistently with the factual conclusions in the report (referring to the Joint Progress Report (Appeal Book (AB) Part C, Tab CRI39) (the Joint Progress Report) at [11] and [14]);

(2)    the terms of the orders made on 6 August 2018 appointing Dr Sackett and providing for the preparation of the report and its circulation to all parties to the proceeding (and not only those party to the mediation), demonstrate that it was contemplated that the report would be used outside the mediation process;

(3)    the Sackett report was prepared pursuant to r 23.01(1)(a) of the FCR and was not subject to “without prejudice” privilege; and

(4)    the primary judge found at [38] that, consistently with these considerations, there was at least a “real prospect” that the Sackett report would have been admitted into evidence and therefore have entered the public domain but for the native title proceeding being discontinued.

(appellant’s submissions dated 2 March 2021 (AS) at [18]–[23]).

37    In our view, no error is apparent from her Honour’s reasons based upon the link between the Sackett report and its provenance in the mediation process, albeit that there is one aspect of her Honour’s reasoning from which we would respectfully depart. In the latter regard, we note that the Full Court had the benefit of more time for reflection than was afforded to her Honour who delivered judgment urgently only the day after the interlocutory hearing in her capacity as duty judge.

38    First, none of the first three matters relied upon by Glencore provide a basis on which it can be inferred that the Sackett report would (as in more probably than not) ultimately have entered the public domain, even though nothing in the Joint Progress Report or the court orders in the native title proceedings indicated that the report was prepared solely for the purposes of the mediation. Rather, notwithstanding her Honour’s findings at [38], the Sackett report contained information of a personal kind such as family histories, places and dates of birth, the names of deceased members of the native title group, and the like. As the appellant’s senior counsel properly accepted, material of this kind is often the subject of confidentiality orders in native title proceedings. Thus, even if the Sackett report had been received in evidence, it is likely that it would have been subject to confidentiality orders in whole or in part. In this regard, s 82(1) of the NTA provides that the Federal Court is bound by the rules of evidence “except to the extent that the Court otherwise orders”, while s 82(2) expressly permits the Court to take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders in conducting its proceedings. These powers are reflected in turn in rr 34.120–34.128 of the FCR. As explained in Perry M and Lloyd S (eds), Australian Native Title Law (Thomson Reuters, 2nd ed, 2018) at [ch 4.80], “[a]ll of these rules are designed to facilitate the taking of evidence of Aboriginal witnesses and address the well-known difficulties which courts face in receiving and dealing with the evidence of Aboriginal witnesses …”: see also Chapman v Luminis Pty Ltd (No 5) [2000] FCA 1407 at [26] (O’Loughlin J). As Perry and Lloyd continue, it is well recognised that most native title applicants are likely to have cultural and customary sensitivities in relation to the public dissemination of certain types of information (ibid at [ch 4.90]; see also ibid at [82.10]–[82.40]).

39    Furthermore, the Statement of Agreement prepared by the participants to the mediation and set out in the Joint Progress Report, not only requested the Court to appoint an independent anthropological expert to prepare a report addressing various issues, namely, “Wonnarua people, ancestors, traditional laws and customs about gaining rights in land, and traditional boundaries (to the extent relevant)” (AB Part C, Tab CRI39 at 2). The Joint Progress Report also set out the participants’ agreement that “they will support the work of the independent anthropological expert and assist the independent anthropological expert, including by providing their material to the independent anthropological expert” (emphasis added) (ibid). The implication is that that material included documents not (at least yet) filed and served which would be reviewed by Dr Sackett in his desktop review. That research material again included information of a personal nature. In this regard and in the context of setting out why the proposal to appoint a court expert had particular merit in the view of the applicant to the native title proceeding, the Joint Progress Report explained that:

… there is a reasonably well defined body of research material which has been identified by the parties to the mediation and which they have agreed to provide to a Court expert. This includes reports by anthropologists, family history documents, records of births, death and marriages, genealogies, maps, and other source materials. The parties to the mediation have also agreed to make a joint request to NTSCORP Ltd for it to release relevant research materials that it holds to a Court expert. The Applicant says that the level of existing material which is able to be accessed is likely to save a Court expert significant time and resources in undertaking primary research

(AB Part C, Tab CRI39 at 5).

40    The personal nature of the material supplied by the participants to the mediation lends further support to the notion that they may not have intended some or all of that material to enter into the public domain via the independent expert’s report.

41    As a consequence, we respectfully disagree with the primary judge’s finding at [38] that it follows from the real prospect that the Sackett report would have been put in evidence in the native title proceeding if it had proceeded to trial, that there was therefore a real possibility that the report would have entered the public domain in whole or in part.

42    Secondly, the mediation was convened under s 86B to address the dispute between the native title applicant and a number of indigenous respondents and overlapping claims. This provision is one of the means by which the NTA seeks to achieve the object set out in the preamble to create “[a] special procedure … for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has regard to their unique character.” In this regard, s 86B(1) of the NTA presumptively provides for the Federal Court to refer native title applicants to mediation as soon as practicable. In addition, the Federal Court is empowered under subs (5) to refer the whole, or a part (as occurred here), of a native title proceeding to mediation at any time if the Court considers that the parties will be able to reach agreement on any of the facts relevant to the matters in ss 86A(1) or (2) of the NTA. Those matters include whether native title exists and, if so, who holds the native title.

43    While the mediation in this case did not result in agreement on facts relevant to s 86A, it did result in the participants agreeing upon a process in an effort to resolve some of those issues, with which the State concurred. The significance of the State’s concurrence lies in the special role played by the relevant State in native title claims under the NTA, including in any consent determinations. Therefore, the Joint Progress Report records that the applicant to the native title proceeding recognised that the agreed process had the potential to resolve issues relating to the dispute between the applicants and indigenous respondents by agreement, with various possible outcomes. These included the reconfiguration of existing claims, the withdrawal of existing claims, or the authorisation of new claims. This intention is evident from the explanation in the Joint Progress Report at [11(a)] of the reasons why the proposal to appoint a Court expert was regarded as having “particular merit” in the applicant’s view, namely, because:

… it is supported by the parties to the mediation, who between them are understood to represent the ancestral lines which have featured in various native title claims made in relation to land and waters in the Hunter Valley and on behalf of “Wonnarua people” since 1995. The [a]pplicant for its part recognises that in these circumstances a Court expert offers a prospect for the genuine, fact-based resolution of the disputes over the composition of the “Wonnarua People” which have affected all of these claims

(emphasis added).

44    Thirdly, it is evident that the mediation in the native title proceeding resulted in agreement not only to adopt a mechanism under the FCR to progress the resolution of the disputed claims made by the indigenous parties. It also resulted in their agreement to co-operate by providing the independent court-appointed expert with the materials held by them which were relevant to the desktop review to be undertaken by him and by jointly requesting NTSCorp to provide relevant research material.

45    In these circumstances and given the objects of the NTA, there is a strong public interest in ensuring that Aboriginal peoples are not deterred in the future from agreeing to the use of court processes, such as those provided for under r 23.01 of the FCR, to assist in resolving their claims because of the potential for any resulting report to be used for ulterior purposes by non-indigenous parties. For these reasons, the primary judge was correct in having regard to the genesis of the Sackett report in determining whether Glencore should be released from its Harman undertaking to use the report in the s 10 process and the consequential need for caution before granting leave to Glencore.

5.2    Did the primary judge err by taking into account the potential for unfairness or prejudice to the respondents or other First Nations peoples (Grounds 2 and 3, notice of appeal)?

46    Glencore elected to deal with these two grounds of appeal together. As can be seen from their terms, they relate to [31]–[32] and [40] of the primary judgment. At [40], her Honour said:

The contents of the Sackett report are clearly sensitive and controversial. As it was not tendered in evidence in the Native Title Proceeding, Dr Sackett was not subjected to cross-examination. Mr Franks contends that the use of the report even for the limited purpose proposed would cause irreparable harm, not only to him and Mr Lester and the people they claim to represent but potentially to third parties, too. Glencore have known about the s 10 application since August at least. Yet its application for leave to use the Sackett report was made within days of the extended deadline for representations, making it impossible for Mr Franks and Mr Lester to provide cogent evidence to support their claim unless the application were to be adjourned to permit them to do so. Third parties who are potentially affected have had no opportunity to be heard. In view of the looming deadline, an adjournment would render the current application nugatory. The matter should be determined on its merits. But the potential for unfairness, if not actual prejudice, bears upon the exercise of the discretion. So, too, does the delay in making the application, a delay which is largely unexplained.

47    The circumstances of the adjournment application to which her Honour referred in this paragraph were earlier described by her as follows (at [31]–[32]):

31    Mr Franks and Mr Lester, however, oppose the application. In an affidavit sworn on 14 December 2020 Mr Franks notes that the Sackett report was prepared for the purpose of the mediation in the Native Title Proceedings, was never “read into court” or tested in open court. He contends that it contains numerous inaccuracies. He deposed that he is “very concerned” that release of the report will cause substantial damage to “various First Nations communities”. He went on to say:

If released, this information may undermine the identities of a number of Wonnarua peoples descended from Matilda Hughes and other named apical ancestors.

Identity is very significant to First Nations peoples. It will cause enormous pain and hurt to First Nations peoples if their identity is questioned by an untested desktop study, especially in circumstances where there is other evidence which directly contradicts the Sackett Report’s assertions.

An order permitting the Sackett Report to be released may give rise to the perception of legitimacy to the untested speculative views in the Sackett Report.

Not only will the assertions contained in the Sackett Report will be detrimental to the human right to identity of First Nations peoples, but it would allow a coal mining company to use those untested assertions against the Wonnorua [sic] peoples who are attempting to protect Wonnarua lore and customs through our application under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

32    He sought an adjournment of 30 days in order to obtain additional evidence from First Nations people about the detrimental impact on them if the Sackett report were to be released.

48    Glencore posited five reasons why the primary judge’s comments in the concluding sentences of [40] concerning the potential for “unfairness, if not actual prejudice” to the respondents involved a mistaken view of the facts and/or erroneously having regard to an irrelevant consideration, or failing to have regard to a relevant consideration (AS at [24] to [29]):

(1)    First, it claimed that the respondents’ contentions as recorded at [31] “describe a harm that arises from the existence of the Sackett Report itself, rather than from its release for use in connection with the s 10 Application”.

(2)    Secondly, it claimed that the respondents’ contention regarding the potential to undermine the identities of Wonnarua people, also recorded at [31], misconceived the orders Glencore sought in that they were intended “to permit it to use the report only for the purposes of the s 10 Application, rather than for the report to be released without limitation”.

(3)    Thirdly, it claimed that the respondents’ contention regarding the perception of legitimacy, as recorded at [31], was misconceived because what people mistakenly perceived about the effect of the order arose from that mistaken perception rather than from the making of the order itself.

(4)    Fourthly, it contended that the reference in the last paragraph of [31] to “using the Sackett Report against the respondents in their s 10 Application” could not constitute a relevant form of harm in circumstances where “procedural fairness would have required that the respondents be heard in answer to the contents of the [Sackett] Report in so far as it adversely affected their application”. Glencore further submitted that if anything, the respondent’s reference tended to demonstrate the relevance of the Sackett report.

(5)    Fifthly, it contended that the reference to the potential effect on third parties in [40] was an “irrelevant consideration” because “[t]hird parties did not have a right to be heard on Glencore’s application, where [it] only proposed to use the Sackett report in the s 10 Application”.

49    In response, the respondents contended that the primary judge’s comments at [31] and [32] were directed to their application for an adjournment and those matters did not form part of the primary judge’s dispositive reasoning in respect of Glencore’s application. As for [40], they submitted that the primary judge simply identified that unfairness and unexplained delay were relevant factors in the exercise of the discretion in question. However, they contended the primary judge did not ultimately dismiss Glencore’s application in reliance on those matters (respondents’ submissions filed 9 March 2021 at [19]).

50    In our view, the respondents are essentially correct in their submissions about the effect of these three paragraphs of the primary judgment. At [31], the primary judge set out the contents of Mr Franks’ affidavit and the respondents’ contentions about the harm that they claimed would flow if the Sackett report were to be released. Then, at [32], her Honour recorded the respondents’ application for an adjournment of Glencore’s application to obtain further material in support of this contended harm. Importantly, her Honour did not, in those paragraphs, accept or endorse any of the respondents’ contentions with respect to that harm. Moreover, as recorded at [40], her Honour ultimately dismissed the respondents’ adjournment application holding that “[i]n view of the looming deadline, an adjournment would render the current application nugatory”. Finally, the general remarks in the final two sentences of [40] to the effect that unfairness, prejudice and unexplained delay are factors that bear on the exercise of the discretion are, in our view, unexceptional and entirely accurate. In any event, as the respondents noted, those factors are not mentioned in the reasoning her Honour ultimately employed to dismiss Glencore’s application. There is, therefore, no appellable error apparent in these three paragraphs of the primary judgment.

5.3    Did the primary judge err by taking into account the potential impact of the release of the Sackett report on Dr Sackett (Ground 4)?

51    This ground of appeal relates to the third of the Springfield Nominees factors mentioned above. With respect to that factor, the primary judge said (at [41]):

To the extent that the evidence discloses anything about Dr Sackett’s attitude to Glencore’s application, it suggests that he would at least be uncomfortable with it. Having regard to the matters he raised in his conversation with Ms Fernandez, release of the report to Mr Leo might embarrass, if not prejudice Dr Sackett.

52    Dr Sackett’s conversation with Ms Fernandez has already been mentioned above (see at [13]). Her Honour described it at [20] as follows:

On 7 August 2020 Ms Fernandez telephoned Dr Sackett apparently to inquire whether he would assist Glencore in relation to the s 10 application. He was unwilling to do so. He claimed he would have “a conflict” since he had met with the claim group about “this” and he was worried they would be concerned if he helped Glencore. He also said he had done work for the Court on the matter and did not therefore feel that he could help. He suggested two other names to her. There is no evidence to indicate what Ms Fernandez did with this information.

53    In this ground of appeal, Glencore claimed that the primary judge made a mistake of fact in her observation that the release of the Sackett report might “embarrass, if not prejudice Dr Sackett” (at [41]). It relied on her Honour’s earlier description of Ms Fernandez’s telephone conversation with Dr Sackett to contend that “[t]he fact that Dr Sackett would not assist Glencore voluntarily did not mean that release of the Sackett Report for the limited purpose of it being used in connection with the s 10 Application would embarrass or prejudice him”. It added that Dr Sackett must have always been aware that his report “might enter the public domain through the [native title] litigation” (AS at [31]).

54    In response, the respondents contended that the primary judge was, in this paragraph, properly recording the attitude of the document’s author to the release of the Sackett report in accordance with the apposite factor listed in Springfield Nominees. In any event, they submitted that her Honour made it clear that she did not base her ultimate decision on this factor.

55    Again, we consider that the respondents are essentially correct in their contentions about this paragraph. No mistake of fact is apparent in it and, even if there were, it was not a factor that her Honour ultimately took into account in dismissing Glencore’s application. It follows that this ground of appeal also does not identify any appellable error in the primary judgement.

5.4    Did the primary judge err in finding that the Sackett report had little, if any, relevance to the s 10 process (Ground 5)?

56    It will be recalled that ground 5 of the notice of appeal contends that the primary judge erred in holding that Dr Sackett’s report had little or no relevance to the considerations relevant to the s 10 process under the Heritage Act. Specifically, the primary judge held that:

43    As Mr Franks submitted, the Sackett report deals with the geographical limits of the country occupied by the Wonnarua peoples and the family lineage of certain individuals. On close inspection it appears to have little, if any, relevance to any of the matters the reporter is required to consider.

44    In order to bring their application under s 10 of the Heritage Act, Mr Franks and Mr Lester did not need to be native title holders or claimants. Nor did they need to be Wonnarua people. Their standing to apply to the Minister rested on their Aboriginality; it did not depend on an association of any kind they might have to the land the subject of the application: Williams v Minister for the Environment & Heritage [2003] FCA 627 at [6] (Lindgren J). The evidence before the Court indicates that they are Aboriginal. Glencore did not suggest otherwise. Unlike in the Native Title Proceeding, they were not required to swear an affidavit or provide other evidence to show that they were authorised by all members of the native title claim group to make the application and deal with matters arising in relation to it: cf. Native Title Act 1993 (Cth), s 62. Moreover, the success of the s 10 application does not depend on them establishing native title. In contrast to the Native Title Proceeding, the application under the Heritage Act does not require proof of a connection to land (or waters) by reason of “traditional” (in the sense of pre-sovereign) laws and customs: cf. Native Title Act, s 223(1); Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [75]. In other words, the issues for determination on the s 10 application are different from the issues considered by Dr Sackett. Thus, contrary to Glencore’s submissions, it is doubtful that Mr Leo would derive any assistance from the Sackett report. It follows that it is unlikely that a grant of leave to use the report would make any contribution to the achievement of justice in the s 10 process

(emphasis added).

57    Glencore correctly did not dispute the primary judge’s findings above that, in contrast to the requirements for native title applicants under the NTA, the respondents’ standing to apply to the Minister under s 10 of the Heritage Act depended simply on their Aboriginality and that there was no requirement for them to demonstrate that they were authorised by members of a native title claim group to make the application. Nor did Glencore dispute that an application under the Heritage Act did not require proof of connection with the land the subject of the application, let alone proof of rights and interests deriving from traditional laws and customs in the sense that they survived the acquisition of sovereignty over Australia. As such, Glencore correctly accepted that the question of whether the area the subject of the s 10 application “is a significant Aboriginal area” required the Minister to determine whether that area is a significant Aboriginal area today.

58    However, Glencore contended first that the Sackett report was “directly relevant” because of the way in which the respondents had “pitched” their s 10 application:

59    Glencore relied upon the fact that the application stated that it was made by the respondents as Aboriginal persons who were the authorised claimants on behalf of the Plains Clan of the Wonnarua People in the native title proceeding (AB Part C, Tab CRI16 at 262–263);

60    Secondly, Glencore placed weight upon the fact that, in his report (at AB Part C, Tab CRI16 at 375–443), among other things, Associate Professor Draper:

(1)    explained that his background research for the report provided the context for ethnographic information on connections and cultural values related to the requested protection area which was recorded through site inspections and interviews with PCWP informants including the respondents;

(2)    explained that his report drew upon some of the results of previous fieldwork and background research by him for the PCWP native title application; and

(3)    referred to Matilda Hughes as the Wonnarua ancestor of the Franks, Foot/Stocks and Lester families.

(AB Part C, Tab CRI16 at 387, 422–427, 429).

61    As such, Glencore submitted that:

There were thus contentions, made in the material submitted by the respondents, that their ability to speak authoritatively as to the significance of the Ravensworth Estate to Wonnarua people (a matter upon which the reporter is required to report, pursuant to s 10(4)(a) of the [Heritage] Act) derived from their status as persons who are themselves Wonnarua, by virtue of having Wonnarua ancestors, and also from their having been claimants on behalf of the Plains Clan of the Wonnarua People in the Native Title Proceedings. The Sackett Report was relevant to those contentions, because … it identified and assessed evidence relevant to whether the respondents’ ancestors were Wonnarua people. The Sackett Report had the capacity to affect the reporter’s assessment of the basis of the respondents’ claimed authority to identify the significance of the Ravensworth Estate to Wonnarua people.

(AS at [36]).

62    Glencore also submitted that the Sackett report was relevant because it addressed questions of traditional laws and customs concerning membership of the Wonnarua People, the way in which they held rights and interests in land, and the extent of Wonnarua country (AS at [38]).

63    Thirdly, Glencore relied upon the fact that Dr Sackett was critical of earlier reports prepared by Associate Professor Draper in the context of the native title proceeding in support of its submissions as to the relevance of Dr Sackett’s report to the s 10 process under the Heritage Act (AS at [39]).

64    Fourthly, in Glencore’s submission, the Sackett report had the capacity to affect the Minister’s exercise of discretion under s 10(1) given that the Minister is entitled to determine which matters are relevant to her decision.

65    Finally, Glencore submitted that in considering the likelihood of the Sackett Report affecting the weight to be given to the Draper Report, the primary judge “usurped the roles of the reporter and the Minister in the s 10 process” (AS at [40]). Rather, it sufficed if the report ““may illuminate matters” in the other proceeding” (quoting from State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd [2019] FCA 1464 (State Street Global) at [84] (Beach J)).

66    It is correct to say that matters of weight were for the reporter and ultimately the Minister to determine and fall outside the scope of the judicial review function. However, we do not agree that any such error is apparent in the primary judge’s reasons or otherwise in her Honour’s consideration of the question of relevance to the exercise of her discretion.

67    First, in State Street Global, Beach J held that there was inherently a significant degree of commonality of factual issues between a United States proceedings for the purposes of which the applicant sought to be released from the Harman undertaking attaching to a confidential exhibit relied upon in an Australian proceeding (at [81]). However, as earlier explained, the s 10 process is not a judicial process and has nothing to do with the administration of justice in other proceedings.

68    Secondly, the primary judge considered the potential relevance of the Sackett report to the Minister’s decision under s 10 of the Heritage Act having regard to the likelihood of a commonality of issues between that decision and the native title proceeding. Her Honour approached that assessment by contrasting:

(1)    those matters on which Mr Leo was required to report under the Heritage Act and of which Minister was required to be satisfied, on the one hand (being matters which were therefore directly and necessarily relevant); and

(2)    those matters which must be proved to establish the existence and nature of native title under the NTA, on the other hand.

69    Her Honour correctly found that it was doubtful that the Sackett report, which addressed the latter, would be relevant to the former. Given the concessions appropriately made by Glencore on appeal of the different elements required to be considered under the NTA and s 10 of the Heritage Act, her Honour’s approach correctly reflected the caution with which the Court should exercise its discretion given not only the provenance of the Sackett report in mediation under the NTA, but also the inevitably political character of the power which the Minister exercises under s 10.

70    Contrary therefore to Glencore’s submissions, her Honour did not proceed to assess the weight which either the reporter or the Minister would be likely to give to the Sackett report or to the Draper report in light of the Sackett report. Rather, it is apparent that her Honour did not consider that the fact that the Sackett report “may illuminate” certain matters raised by the respondents in their s 10 application outweighed the other considerations relevant to the exercise of her discretion to release Glencore from its implied undertaking.

71    Given these matters, ground 5 must be dismissed.

6.    CONCLUSION

72    For the reasons set out above, there is no merit in any of the grounds of appeal raised by Glencore. Accordingly, we dismissed its notice of appeal by an order made on 1 April 2021. Since Glencore has failed on all its grounds of appeal and there is no reason why costs should not follow the event, Glencore is also to pay the respondents’ costs of the appeal to be taxed failing agreement.

Associate:

Dated:    27 April 2021