FEDERAL COURT OF AUSTRALIA
ADANI MINING PTY LTD
NATIONAL NATIVE TITLE TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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 ( 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 ) are important because those rights and interests are central to the operation of the right to negotiate process in Subdivision P (see further at –, – 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 ): 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).
(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  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.
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  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.
(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  NNTTA 210 at  the Tribunal applied 3 relevant factors to section 39(1)(c) from - of Cameron / Hoolihan & Ors (Gugu Badhun) / Queensland  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  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.
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  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.
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 ( NNTTA 16 at ): “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.
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.
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
• 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.
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 ). 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)
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.
18.104.22.168 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.
22.214.171.124 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.
126.96.36.199 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.
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.
188.8.131.52 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.
184.108.40.206 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.
220.127.116.11 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).
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).
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.
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:
Land Court of Queensland Notice of Issues
Agree, disagree or no comment
The economic assessment methodology relied upon in the Environmental Impact Statement documents is deficient, in particular it does not compare the costs and benefits of the project, so it cannot assist in the weighting and balancing of the relevant matters to be considered by an approval authority when exercising its statutory power to determine a project application.
Agree – there is no cost benefit analysis (CBA).
The economic assessment methodology relied upon in the Environmental Impact Statement documents is deficient, in particular it does not provide any insight into the financial viability, economic efficiency or wider social implications of the project.
Agree – a CBA should provide insight into economic efficiency of the project, potentially some understanding of financial viability and take into account social and environmental impacts where possible.
The economic assessment methodology relied upon in the Environmental Impact Statement documents is deficient, in particular it does not estimate royalties or any other fiscal benefits to the state.
The economic assessment methodology relied upon in the Environmental Impact Statement documents is deficient, in particular it does not include consideration of subsidies and other fiscal costs of the project may impose on the state.
The economic assessment methodology relied upon in the Environmental Impact Statement documents is deficient, in particular it does not consider any non-market impacts such as social or environmental matters.
Agree – a CBA should include non-market impacts and social environmental matters where possible.
The Input/Output model upon which the economic assessment is based estimates the impact of the project on economic output (gross state product and gross regional product) and level of employment.
Input/Output modelling has significant recognised shortcomings: it does take not account of the fact that there are limited productive resources in the economy, effectively assuming unlimited resources such as skilled labour, land, water etc.
Agree JF notes: a computable general equilibrium (CGE) model will overcome this shortcoming.
Input/Output modelling has significant recognised shortcomings: it ignores the opportunity costs associated with using resources for one project rather than another.
Agree – JF notes: a CGE model will overcome this shortcoming.
Input/Output modelling has significant recognised shortcomings: it assumes fixed prices, meaning regardless of the project’s impact on input markets, no prices change or substitution between goods and services occurs.
Agree – JF notes: a CGE model will overcome this shortcoming.
As a result of the above shortcomings, Input/Output modelling is likely to have significantly over-estimated the economic benefit of the project.
Agree – JF notes: it is likely to have overestimated the employment benefits, however it is unclear to what extent output and income impacts are overestimated. A CGE model will provide a more accurate estimate of output and income impacts.
107(a) (b) (c) (d)
In addition to the above shortcomings of Input/Output modelling generally, its application in the economic assessment raises a number of additional problems.
Agree – JF notes: these problems are not insurmountable especially under CGE analysis
Other deficiencies include: the economic assessment does not consider the impact of royalty deductions including any royalty ramp up period agreed with the Queensland Government pursuant to the Galilee Basin Strategy.
Agree – agree that the assessment does not include consideration of these policies. This is not a criticism of the assessment, however, as it was written before the Galilee Basin Strategy was launched. The purpose of the economic assessment was to assess the project as it stood not to evaluate the government policy of the day or speculate about how policy may change in the future.
Other deficiencies include: the economic assessment does not consider the implications for the Queensland community of subsidies to the project under any Infrastructure Enabling Agreement.
Agree – agree that the assessment does not include consideration of these policies. This is not a criticism of the assessment, however, as it was written before the Infrastructure Enabling Agreement was announced. The purpose of the economic assessment was to assess the project as it stood not to evaluate the government policy of the day or speculate about how policy may change in the future.
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.
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.
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”.
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  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  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
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
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: …]
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.
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)
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.
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  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.
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.
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.
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 $44.3 billion.
186 Looking at the benefit-cost ratio, under either discount rate the benefits in present value terms, excluding consumer surplus, are 40 per cent bigger than the costs. Including consumer surplus, the benefis (sic) are more than double the costs.
87 Table 5 (mentioned above) was as follows:
Table 5 Present Value of Project Benefits and Costs ($m, real, $2014-15)
Benefits (excluding CS)
Consumer surplus (CS)
Benefits minus Costs (excluding CS)
Benefits minus Costs (including CS}
Benefit Cost Ratio (excluding CS)
Benefit Cost Ratio (including CS)
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.”
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 ( 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
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 – 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  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 ).
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:
 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 …
 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;  NNTTA 30 at  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  NNTTA 19 at ] “… 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  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.
 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  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  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 ) and concluded:
Taking into account [Adani’s] intentions as referred to in their contentions as summarised [at  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  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”.
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:
 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’ ...
 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.
 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.
 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.
 Furthermore, [Adani] notes that the port expansion works are expected to generate ‘substantial economic and social benefits for the State and local region’ ...
 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 ):
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 - as follows:
 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.
 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.
 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)
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).
127 The Tribunal’s ultimate determination is set out above (at ) 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.
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
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.
(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 , ,  and  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;  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;  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 ) and conduct vitiating a public law decision which was analogous to fraud (quoting the expression used in SZFDE by French J at , , , , ,  and . 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 –. 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;  HCA 7 (Peters) at . 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:
(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  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 , ,  and  of the Tribunal’s Reasons (see (g) of the particulars set out at  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 ), 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  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  NSWSC 1498 (Majzoub) and Seven West Media Ltd v Commissioner, Australian Federal Police (2014) 223 FCR 234;  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.
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  and Macleod v The Queen (2003) 214 CLR 230;  HCA 24 (Macleod) at ); and a Federal Court decision (SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472;  FCA 871 at ); 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
150 The matters set out in paragraph 1 of Mr Burragubba’s amended originating application above (at ), the particulars of this ground set out above (at ) and the contentions of the parties outlined above (at –) require the following questions to be answered in determining this ground:
1. Is conduct analogous to fraud “fraud” for the purposes of s 5(1)(g) of the ADJR Act (ground 1(f) at  above)?
2. If not, does the expression “procedures that were required by law” in s 5(1)(b) of the ADJR Act include a requirement to avoid conduct that is analogous to fraud (ground 1 at  above?
3. If it is (or, in any event), did Adani make a representation to the Tribunal that was dishonestly misleading (ground 1(d) and (e) at  above)?
4. If so, did that conduct constitute conduct that is analogous to fraud (ground 1(f) at  above?
(a) Was the EIS materially different to the expert reports submitted to the Land Court, namely the Joint Report, Mr Fahrer’s First Report and his Second Report (ground 1(a) and (b) at  above and particular (e) at  above)?
(c) If so, did they deliberately refrain from providing the Land Court experts’ reports to the Tribunal (ground 1(c) at  above)?
(d) If so, did Adani impliedly represent to the Tribunal that the accuracy of the EIS was not subject to dispute (ground 1(d) at  above)?
(e) If so, was that representation dishonestly misleading (ground 1(e) at  above)?
I will consider these issues in turn hereunder, but first I will review the judgment of French J in SZFDE in this Court, and the High Court judgment in that matter because they are so critical to Mr Burragubba’s case on this ground.
SZFDE in the Full Court
A family of Lebanese citizens arrived in Australia and applied for protection visas. The applications were refused. After commencing proceedings before the Refugee Review Tribunal for the purpose of reversing the refusals, the Tribunal invited the family to appear before it pursuant to s 425(1) of the Migration Act 1958 (Cth). A rogue, who wrongly claimed to be entitled to practise as a solicitor and migration agent, advised the family not to attend the Tribunal hearing. The family followed the rogue’s advice. In its reasons, the Tribunal relied on the family’s failure to appear as a ground for rejecting the applications for review.
Section 425(1) of the Act required the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. If an applicant invited to appear pursuant to s 425(1) did not appear, s 426A entitled the Tribunal to make a decision on the application for review without taking further action to allow or enable the applicant to appear before it.
The family submitted that the decision of the Tribunal was vitiated by fraud and should be set aside.
153 In the Full Court, Allsop and Graham JJ allowed the Minister’s appeal on the ground that the Tribunal committed no jurisdictional error. French J dissented, holding that the appeal should be refused. Nonetheless, both French and Allsop JJ agreed (French J at  and Allsop J at ) that, while the rogue migration agent’s conduct constituted fraud, it did not result in any procedural unfairness. However, after reaching this conclusion, French J went on to observe (at ) that: “If the success of her challenge to the Tribunal’s decision is to be preserved on this appeal, it must be on the wider basis of fraud affecting the Tribunal’s decision or the decision-making process leading up to it.” His Honour then proceeded to consider that issue under the heading “Fraud and the exercise of official power”.
154 There can be little doubt that French J generally directed his observations thereafter to fraud involving dishonesty because his Honour’s opening words of the next paragraph () were: “Fraud involves dishonesty.” Having made that clear, his Honour then made some observations about the relationship between fraud and unfairness. He said:
A decision obtained by fraud is unfairly obtained. A right, immunity or privilege denied or lost on account of fraud is unfairly denied or lost. So an administrative decision-making process affected by fraud may, in some cases at least, be vitiated on account of unfairness arising from the fraud. In this case non-appearance before the Tribunal on the basis of fraudulent advice, does not seem to give rise to procedural unfairness which would support certiorari.
155 Having reconfirmed his view that the migration agent’s fraud did not give rise to procedural unfairness, his Honour turned to consider the principle that “fraud vitiates everything”. It was in that context that his Honour examined the English and Australian authorities that have been mentioned by the parties in their contentions on this ground. First (at ), French J considered three English decisions where certiorari went to quash a lower court decision which had been affected by serious misconduct, namely perjured evidence. His Honour’s focus on certiorari cases throughout his reasons reflects the stage in the history of the Migration Act 1958 (Cth) (the Migration Act) at which SZFDE was determined. That is to say, after 2001, when s 476, as it stood from 1992, was abandoned and jurisdiction was conferred on the Federal Magistrates Court (now the Federal Circuit Court) to undertake judicial review of the Tribunal’s decisions: see Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, Lawbook Co., 2013) at [3.420].
156 Next (at ), his Honour turned to consider an English decision involving fraud on administrative acts (Lazarus Estates Ltd v Beasley  1 QB 702). After quoting from the judgment of Denning LJ in that decision (this quote is set out in [183(15)] below), his Honour observed:
It follows that fraud has a wider application in vitiating official decisions than could be achieved by reliance upon any inherent, incidental or consequential procedural unfairness. A suggested limitation upon the application of this proposition is that a decision affected by fraud is a nullity only if the decision-maker was a party to the fraud: Anisminic at 170 (Lord Reid). Whatever the merit of that limitation, which was stated rather than explained, certiorari lies to set aside a decision affected by fraud regardless of its source.
157 Next (at ), his Honour examined “a fraud-like case”, R v Knightsbridge Crown Court; Ex parte Goonatilleke  QB 1 (Goonatilleke). In that matter, a store detective’s evidence led to a conviction of shoplifting. It later emerged that the store detective had resigned from the Metropolitan Police over his disgraceful conduct involving a conviction. His deliberate concealment of his character was held to have deprived the applicant of knowledge to which he would have been entitled. His Honour noted that, while Watkins LJ described that conduct as conduct “constitut[ing] a denial of natural justice”, in a later decision of R v Bolton Magistrates Court; Ex parte Scally  1 QB 537 (Scally), his Lordship said of that decision: “In my view Goonatilleke was clearly a case analogous to fraud.” This is the first mention of the expression “analogous to fraud” in SZFDE.
158 French J then proceeded to describe the facts of Scally, noting that it was a case where a person had been convicted of driving with excess alcohol when it later emerged that the blood test results had been affected by alcohol impregnated in the test swabs that were used. His Honour noted (at ) that:
No dishonesty had been involved. There was no unfairness on the part of the Court or malpractice by the prosecution. Nevertheless the case was treated, by the Court, as one in which the process leading to the conviction with excess alcohol, had been corrupted by the prosecutor in a manner which was so unfair that it gave the applicants no proper opportunity to decide whether to plead guilty or not. The case was analogous to one of fraud, collusion or perjury (at 634 per Watkins LJ). Hutchinson (sic) J, who agreed with Watkins LJ, referred to:
… that special category of cases, analogous to fraud, and exemplified by the decision in R v Leyland Justices, Ex parte Hawthorn  QB 283, where relief is available even in the absence of error or miscalculation by the tribunal.
159 At , French J considered two Australian decisions where ministerial or administrative decisions had been set aside following misrepresentations made by the parties obtaining those decisions without fraud being alleged: Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at  per Finkelstein J and Jones v Commissioner of Police (1990) 20 ALD 532 per Carruthers J (cf Transport Accident Commission v Dohnal (1996) 25 MVR 232 at  per Balmford J).
160 After distinguishing between the availability of certiorari to quash decisions affected by fraud and the jurisdiction of common law courts to set aside their own judgments, French J (at ) considered the decision in Glennan v Commissioner of Taxation (Cth) (2003) 198 ALR 250;  HCA 31 (Glennan). His Honour noted that in Glennan “the High Court rejected a submission that an alleged failure by the Commissioner of Taxation to apply a public ruling or to draw the attention of the appellant or other decision-makers to that ruling, amounted to an ‘equitable fraud’ affecting proceedings in the Administrative Appeals Tribunal”.
161 His Honour then examined three Australian cases where certiorari had been used to quash decisions of inferior courts obtained by fraud, beginning with the Privy Council decision in Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 (Willan). His Honour noted that in Willan the Privy Council reversed a decision of the Supreme Court of Victoria quashing a decision of the Courts of Mines because the fraud on which it was allegedly based had not been established (SZFDE at ). His Honour then turned to a Queensland decision of Hallahan v Campbell; Ex parte Campbell (No 2)  Qd R 337 where Stanley, Hart JJ and Lucas AJ ordered certiorari in circumstances where a statement prepared by police and read to the Magistrates Court upon a plea of guilty to vagrancy misstated the facts adversely to the defendant. His Honour noted that Stanley J concluded that “whether by deliberate intention or mere recklessness the statement submitted to the magistrate in this case amounted to a fraud on the court” (SZFDE at ).
162 At , French J turned to consider the decision of Kearney J in Deland. His Honour set out the facts of that case as follows:
[A]n Aboriginal man from a remote community pleaded guilty to charges of driving while disqualified and driving with a blood alcohol content in excess of 0.08%. He had been arrested on a warrant issued following his alleged non-appearance to answer those charges at the Court of Summary Jurisdiction in Alice Springs. As later emerged, he was not in fact the man who had been charged. There was “a total lack of effective communication” between the defendant and his counsel. His counsel on his behalf admitted all relevant facts supporting a plea of guilty to the two offences. The defendant was convicted. He suffered a suspended sentence of two months imprisonment, and a fine and was disqualified for 18 months from holding a driver’s licence. Police took his fingerprints which, if they had been checked, would have been found not to be those of the man who had in fact been charged with the offences. A new record was created. A few months later the police apprehended the defendant on fresh charges of driving while disqualified and with a blood alcohol in excess of 0.08%. The new charge of driving while disqualified was based on the fact that the defendant was found driving notwithstanding the disqualification which had been imposed in respect of the wrongful conviction for driving with a blood alcohol in excess of 0.08%. The defendant again pleaded guilty. He was represented by different counsel who admitted facts relied upon by the police in relation to the new set of offences. Once again there was a total lack of effective communication between the defendant and his counsel.
163 His Honour noted (at ) that Kearney J had referred to Craig v South Australia (1995) 184 CLR 163 (Craig) for the proposition that fraud upon the court which would support the issue of certiorari did not require “actual fraud or dishonesty”, however “there must be something analogous to fraud”. His Honour then quoted from Kearney J’s reasons (at ), as follows:
I characterize the outcome of what occurred before her Worship as attributable to “recklessness” by the police, compounded by the defence lawyers; in that sense, what occurred was analogous to a “fraud” on the court by “the party procuring [the conviction]”, in terms of Willan (supra). Accordingly, those proceedings are exposed to review by certiorari.
164 French J obviously had some difficulty with the reasoning in Deland because his Honour said (at ):
The decision in Deland is not without difficulty. Kearney J’s characterisation of the police conduct in that case as “reckless” does not appear to be supported by the facts. Nevertheless the decision was consistent with the English authorities relating to “circumstances analogous to fraud”.
165 Next, French J (at –) turned to consider some decisions under s 5(1)(g) of the ADJR Act or its analogue in the Migration Act prior to 2001, s 476(1)(f) (at least as to its first limb). His Honour noted that the former provision reflected the common law grounds for judicial review, citing Kioa v West (1985) 159 CLR 550 at 567 per Gibbs CJ; 576 per Mason J; 594 per Wilson J; 625 per Brennan J; and 630 per Deane J agreeing with Mason and Wilson JJ; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356–358 per Mason CJ. At , his Honour noted that “[c]ase law on s 5(1)(g) of the ADJR Act is sparse. Neither that provision nor s 476(1)(f) is mentioned in Aronson, Dyer and Groves.” I interpose that the most recent edition of Aronson, the 5th edition, does mention both provisions albeit briefly: s 5(1)(g) at [5.650] fn 374 and s 476 (but not specifically ss 1(f)) at [3.420] when discussing the history to which I have alluded above (at ). His Honour then noted that there appeared to have been only two reported cases on s 476(1)(f), namely Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 (Wati) and Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387;  FCA 524 (Jama). About those decisions, his Honour observed that:
There is nothing in those decisions or the language of the statutory fraud ground that suggests it was intended to provide a wider ground for review than would have been available at common law. It is true however that the decisions focused upon the language of the statute rather than upon common law principles.
166 In Wati, the applicant contended before the Federal Court (Lindgren J) in a judicial review application that evidence given by a third party to the Immigration Review Tribunal had been false. French J noted that:
Lindgren J dismissed the application as he was not satisfied that fraud had been demonstrated. His Honour held that there was no reason to think that the “fraud” referred to in s 476(1)(f) was limited to the fraud of the decision-maker or a party or a party’s representative (at 112). His Honour approached the statutory ground as defining a substantive basis for review. His judgment made no reference to the case law in relation to fraud at common law. This is perhaps not surprising given that he found, as a fact, that the fraud asserted was not made out.
A Somalian national applied for a protection visa and was refused. Her husband, already a permanent resident of Australia as a refugee, falsely denied that they were married. He later admitted the falsity of his denial which he said he had made because he thought she had been unfaithful to him. The Tribunal decision affirming the refusal of the wife’s protection visa was set aside in the Federal Court on the ground that it had been induced or affected by fraud.
And then observed that (at ):
Nevertheless in my opinion both judgments are consistent with the common law as developed in the English authorities referred to earlier albeit the judgments do not address the question of the circumstances “analogous to fraud”.
168 It is worth interposing that when Bromberg J came to consider s 5(1)(g) of the ADJR Act in 2011 (Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 282 ALR 56;  FCA 833 (Singh)), Wati, Jama and SZFDE remained the only reported cases that provided any assistance (see at ). After reviewing those decisions, his Honour concluded (at ):
An error of law will be demonstrated by reference to s 5(1)(g) of the ADJR Act where the conduct of the decision-maker is improper and involves fraud on the part of the decision-maker. The provision is not confined to the fraud of the decision-maker but extends to fraud “on” the decision-maker. A fraud “on” an administrative tribunal is properly to be regarded, in law, as no decision at all: SZFDE at -. To demonstrate a fraud “on” a Tribunal, it needs to be demonstrated that the decision in question was actually induced or affected by the fraud in the sense that the fraud had a material effect on the ultimate decision which the Tribunal reached. Such satisfaction will be made on the balance of probabilities and with due regard to Briginshaw v Briginshaw principles: SZFDE at .
So far as I have been able to ascertain, there has been no reported decision on s 5(1)(g) since Singh.
121 The common law proposition that fraud may vitiate an administrative decision made in the exercise of a statutory power applies as part of the common law of Australia as it does as part of the common law of England. It has not been formulated with precision. Its extension to circumstances “analogous to fraud” covers a range of situations which are not clearly delineated. It appears to cover “reckless” conduct. As Aronson, Dyer and Groves observed, after referring to the acceptance in Al-Mehdawi that decisions of inferior courts and tribunals could be reviewed at the instance of one party for the fraud, perjury, duress or even simply improper behaviour of another party:
The principle underlying these cases however is still unclear.
It is sufficient to say that a decision made in the purported exercise of statutory powers may be quashed by certiorari where the decision has been induced or affected by fraud or by circumstances analogous to fraud.
122 Fraud and “analogous circumstances” will justify the grant of certiorari if they “distort” or “vitiate” the statutory process leading to the impugned decision to such an extent that it can be said that the decision was induced or affected by that fraud or those circumstances. There was support for that approach in Barrett. The distortion can occur in more than one way. A decision-maker may be misled by false material dishonestly put before it. Relevant material favourable to a person to be affected by the decision may be deliberately and dishonestly withheld by a third party who would reasonably be expected to disclose it either in the discharge of a statutory duty or by reason of that party’s official responsibilities in the administration of the decision-making process. In either case the decision-making process can be said to have been distorted by fraud in a way that induced or affected the decision. The English authorities would support an extension of that proposition to a class of case involving the tender of misleading material or the non-disclosure of favourable material even though no dishonesty was involved.
123 Where a decision-maker acts upon a false impression created as the result of a fraud affecting the conduct of a party before it, then the resulting decision can be said to be induced or affected by the fraud. So a response to an invitation to an oral hearing where the response is in the negative and constitutes a consent to disposition without such a hearing may create the false impression that that consent was voluntarily given when in truth it was obtained by fraud. The proposition that fraud unravels everything in that case applies to the consent upon which the decision-maker acts as well as the decision which results.
170 The case of Barrett that his Honour mentioned above (at (122)) was discussed earlier in the judgment when his Honour was considering the authorities on the topic of procedural unfairness not attributable to a decision-maker where decisions had been set aside. Since Mr Burragubba placed some reliance upon that decision (see at  above), it is appropriate to outline what French J said about it. In discussing the House of Lords decision in R v Secretary of State; Ex parte Al-Mehdawi  1 AC 876, his Honour observed (SZFDE [at 86]):
[T]he Full Court of the Federal Court accepted that if a decision-maker acts upon a misleading submission from his or her department, not shown to the person affected, the decision may be vitiated. Their Honours Pincus, Gummow and Lee JJ said (at 133):
That may be argued to be such a “fundamental flaw in the decision making process” (R v Secretary of State; Ex parte Al-Mehdawi  2 WLR 603 at 611) as to make the decision bad on the ground that the decision making process was, even if through no fault of the decision-maker himself, “seriously defective or irregular”, to use an expression adopted by the Court of Appeal in the case just mentioned.
This application was consistent with the principle, identified by Lord Bridge in Al-Mehdawi, as the true principle underlying the decision in Ex parte Hawthorn. Its weight as a considered observation is not undercut by the reversal of the Court of Appeal in the House of Lords.
171 Having mentioned Barrett, it is convenient to digress to mention the search warrant authority that Mr Burragubba relied upon along with Barrett, namely Lego (see at  above). It is also convenient to consider the two search warrant authorities cited by the State: Majzoub and Seven West (see at  above).
172 Lego was a company engaged in the importation into, and distribution in, Australia of toy building materials. It sought to challenge the decisions of a Justice of the Peace to grant two search warrants under s 10(1) of the Crimes Act 1914 (Cth). At first instance, Lego alleged that Mr Paraggio, the customs officer who had applied for the warrants in question, had failed to disclose to the Justice of the Peace material matters and had made false or misleading statements. One of the issues before the Full Court on the appeal was whether the decision to issue the warrants was thereby vitiated by fraud. On that issue, the Full Court set out the following principles (at 555):
It is true that, in an exceptional case, an administrative decision may be vitiated by fraud or misrepresentation even at common law (see, eg Sir William Wade, Administrative Law (6th ed, 1988), p 257). The AD(JR) Act itself makes such a provision: see s 5(1)(g). In that special situation, it will be necessary to consider the conduct of the party making application for an administrative decision. But, generally speaking, the role of the court in judicial review is to supervise the activities of the Executive so as to ensure that administrative action takes place in accordance with the rule of law. This supervisory jurisdiction is very different in character from the function of the courts in determining civil disputes between private citizens. …
It follows, in our view, that there is no general, in the sense of abstract, “duty” of disclosure here. This is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half-truth and thus misleading (see eg R v Kylsant  1 KB 442) would be treated, in this, as in other contexts, as a misrepresentation.
173 In the end result, the Court was not satisfied that the non-disclosure constituting the alleged fraud had been made out on the facts. It noted that some of the information was peculiarly within the knowledge of Lego. It also observed that:
… there was room for argument about the true complexion or characterisation of the transactions under scrutiny. As well, complicated and contentious legal questions were involved. Given, in particular, the circumstance that the whole subject was argumentative and that, even after the field audit, several points of view were open, even reasonably open, we are not satisfied that the serious charge of fraud has been made out in this respect ...
174 The first of the two search warrant authorities relied upon by the State was Majzoub. In that matter, the plaintiff sought to challenge a search warrant on the ground of alleged bad faith/fraud on the part of Constable McKinley, the police officer who had applied for the issue of the warrant. Mr Majzoub alleged that the information provided by Constable McKinley to obtain the warrant was “a gross exaggeration and/or an embellishment of the true facts”. Among other authorities, Mr Majzoub relied upon the High Court decision in SZFDE. Hall J reviewed the authorities relating to the bad faith/fraud ground, including SZFDE (see at –). It is worth noting that, in the process, his Honour mentioned the decision in Deland as follows (at ):
A number of cases concerning administrative decision-makers have equated a want of good faith with arbitrariness, recklessness or capriciousness: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 276; Buck v Barone (1976) 135 CLR 110 at 118–119; WAFV v Refugee Review Tribunal (2003) 125 FCR 351 at ; Hallahan v Campbell; ex parte Campbell (No 2)  Qd R 337; R v Deland; Ex parte Willie (1996) 6 NTLR 72.
175 His Honour also noted a caution issued by the Full Court of the Federal Court as follows (at 60]):
The Full Federal Court, however, has cautioned against using recklessness as an objective standard of bad faith: NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 412. What is required to show a want of good faith is that the administrative decision-maker was “recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him” (at ).
(Emphasis in original)
176 The result in Majzoub was similar to that in Lego – that his Honour was not satisfied that the bad faith/fraud ground had been made out on the facts. He said (at ):
… in the absence of evidence that demonstrates Constable McKinley was aware of the risk that the language used in the application for the warrant would convey the impression that he had observed a drug exchange take place, bad faith has not, in my opinion, been established.
177 The second search warrant authority relied upon by the State was Seven West. That was a matter involving two proceedings to set aside search warrants, together with related s 246 orders that had been issued under the Proceeds of Crime Act 2002 (Cth) (Proceeds of Crime Act). Prior to the issue of the warrants in question, Seven West and its lawyer had received and complied with a production order which was issued under s 202 of the Proceeds of Crime Act. Shortly thereafter, the Australian Federal Police sent a letter to Seven West’s lawyer stating that it had reviewed the documents produced in response to the production order and was of the view that Seven West had not complied with it. Immediately thereafter, the AFP applied for the issue of the search warrants and s 246 orders. One of the issues before her Honour related to misrepresentations alleged on the part of the AFP. In the first proceeding, the applicants alleged that the AFP had intentionally misled the magistrate who issued the warrant by “stating that the AFP was not satisfied that Seven [West] had complied with the s 202 order for production when a consensual regime was in place for continuing compliance and by failing to disclose material information to the state of Seven [West]’s compliance” (Seven West at ). In the second proceeding, the applicants alleged that it should be inferred that the AFP misled the magistrate as to a series of matters in relation to its application for the warrant (Seven West at ). On the first allegation, Jagot J was not satisfied that the AFP had deliberately misled the magistrate. However, her Honour concluded that some of the material it placed before the magistrate was misleading. On the second allegation, her Honour considered the question whether “innocent but nevertheless material misrepresentations which may be inferred to have induced the issue of a search warrant and s 246 order have the effect of vitiating the warrant and order, then these warrants and orders should be quashed” (Seven West at ). Her Honour noted that that argument was equally applicable to the allegation made in the first proceeding. In the course of argument, the AFP relied upon the decision in Lego, claiming that the Federal Court had there rejected the notion of any freestanding duty of disclosure in making an application for a search warrant. Her Honour considered Lego, Majzoub and a number of other decisions on the question whether innocent material misrepresentations can vitiate a warrant. On the second allegation, her Honour was satisfied that all of the misrepresentations were innocent. In concluding on these issues, her Honour did not consider that the search warrants and s 246 orders could be quashed based on the misrepresentations made by the AFP. She said (Seven West at ):
The applicants submitted that Lego embraced innocent misrepresentations and the case (or cases) to the contrary involved a misreading of Lego or were simply wrong. I am not persuaded that Majzoub v Kepreotis involves a misreading of Lego. In particular, when regard is had to the reference to s 5(1)(g) of the ADJR Act in the passage from Lego at 555 it is difficult to conclude that the Full Court was saying that anything less than fraud would suffice as an independent ground for quashing a search warrant if the issue was one of a failure to disclose material matters. Accordingly, I consider that I am bound by Lego in this regard. On this basis, despite the fact that I am satisfied:- (i) the AFP misled the second and third respondent, by stating that the AFP was not satisfied that Seven [West] had complied with the s 202 order for production when a consensual regime was in place for continuing compliance and by failing to disclose material information to the state of Seven [West]’s compliance, and (ii) the misrepresentations by omission and incomplete statements were material to the decisions to issue the s 246 orders and search warrants, I do not consider that the s 246 orders and search warrants can be quashed on this basis because I also accept that the misrepresentations were unintentional. Whether the lack of any remedy in this regard is satisfactory is not a matter for present consideration.
178 However, despite her finding on the issue of the misrepresentations made by the AFP, her Honour ultimately quashed the search warrants and s 246 orders on the basis they were materially affected by legal error (Seven West at ).
179 To return to SZFDE, in applying the principles outlined in his judgment to the facts of that case, French J concluded (at ) that: “Ultimately, however, this is not a case about unfairness. Rather, it is a case about the effect of fraud upon the Refugee Review Tribunal’s decision-making process for which the Parliament has provided in Pt 7 of the Act”. And (at ): “In this case, on the findings made by the learned magistrate which are not challenged as to the facts, SZFDE and her family were dissuaded from appearing before the Tribunal by the fraudulent advice of the migration agent.” Finally (at ): “It made its decision blamelessly but pursuant to a process which, unknown to it, was compromised by third party fraud.”
SZFDE in the High Court
180 In the High Court, SZFDE sought to rely upon the dissenting judgment of French J (at ). The Minister submitted (at ) that “the principle articulated by French J is too wide; there must be fraud ‘by’ or ‘on’ the decision-maker and here any fraud was perpetrated on the appellants but neither ‘by’ nor ‘on’ the Tribunal”. The High Court accepted this submission noting that (at ): “In resolving this appeal it is sufficient to accept the Minister’s proposition without deciding whether it would be sufficient for the appellants to establish, for example fraud “on” themselves as parties before the Tribunal.” The Court then proceeded to summarise its disposition of the case in the following terms (at ):
For the reasons that follow there was in this case fraud in the necessary sense which was perpetrated “on” the Tribunal, as well as upon the appellants. The result was that, in law, the jurisdiction of the Tribunal remained unexercised and mandamus and certiorari were appropriately ordered by the Federal Magistrates Court.
181 In the result, the Court did not consider, or even mention, the expression “analogous to fraud”. As appears above, it treated the case as one involving fraud per se. However, it did explain the breadth of meaning given to fraud in the law, how it is used in public law and the extent to which it “unravels”. In doing so, it referred to many of the same authorities as French J did. On the meaning given to fraud in law, it observed (at ):
It is convenient first to consider the place of “fraud” in the framework of general legal principle. In his celebrated speech in Reddaway v Banham, Lord Macnaghten spoke of the various guises in which fraud appears in the conduct of human affairs, saying “fraud is infinite in variety”. A corollary, expressed by Kerr in his Treatise on the Law of Fraud and Mistake, is that:
“The fertility of man’s invention in devising new schemes of fraud is so great, that the courts have always declined to define it … reserving to themselves the liberty to deal with it under whatever form it may present itself.”
11 In the fields of law just discussed, the common law, equity and statute are concerned principally with the creation and protection of personal and proprietary rights in inter partes litigation, rather than with what might today be identified as public law. This appeal concerns public law, in particular the due administration of the provisions of the Act respecting protection visas and procedures for review by the Tribunal of decisions on visa applications. That concern with due administration of the laws of the Commonwealth has the important constitutional underpinning described particularly in Plaintiff S157/2002 v The Commonwealth and Bodruddaza v Minister for Immigration and Multicultural Affairs and identified with Ch III of the Constitution.
12 The attachment by courts of equity of the term “fraud”, with related notions of “bad faith” and “abuse of power”, when stigmatising exercises of powers of appointment and fiduciary powers as falling short of the standards equity required of the repositories of those powers, has proved influential in the development of public law. What came to be known as the principle of “Wednesbury unreasonableness” was developed in the case law by analogy to the principles controlling the exercise of powers of discretions vested in trustees and others.
13 However, several points should be made here. First, given the equitable nature of their origins described above, principles of public law concerning impropriety in the exercise of statutory powers have not had the focus upon what might be called the “red blooded” species of fraud which engages the common law. Secondly, with respect to references in the public law decisions to good and bad faith and the like, the following observation in a leading English text is in point:
“These add very little to the true sense, and are hardly ever used to mean more than that some action is found to have a lawful or unlawful purpose. It is extremely rare for public authorities to be found guilty of intentional dishonesty: normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet the courts constantly accuse them of bad faith merely because they have acted unreasonably or on improper grounds. Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context ‘in good faith’ means merely ‘for legitimate reasons’. Contrary to the natural sense of the words, they impute no moral obliquity.”
Aickin J made observations to similar effect in R v Toohey; Ex parte Northern Land Council.
14 Thirdly, in the present case the appellants do not challenge the description by French J of the Tribunal as having acted “blamelessly”. But the appellants do direct attention to the effect upon the processes of the Tribunal of the dishonest acts and omissions of a third party, Mr Hussain. In this regard, the appellants pray in aid another generally expressed precept drawn from private law and from the significance of dishonesty in the litigation of private rights. This is expressed in the oft-repeated proposition that whilst on one hand fraud may be infinite, on the other hand “fraud unravels everything”.
183 In examining the question “How much does ‘fraud’ unravel?”, particularly as it relates to the public law field, the Court referred to many of the English decisions that were examined by French J as follows:
15 In Lazarus Estates Ltd v Beasley Denning LJ declared:
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever: see as to deeds, Collins v Blantern; as to judgments, Duchess of Kingston’s Case; and as to contracts, Master v Miller.”
Earlier, speaking in this Court of a fraudulently obtained trade mark registration, Williams J said in Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd:
“Fraud is conduct which vitiates every transaction known to the law. It even vitiates a judgment of the Court. It is an insidious disease, and if clearly proved spreads to and infects the whole transaction (Jonesco v Beard).”
16 The vitiating effect of fraud is not universal throughout the law. The equitable doctrine protecting bona fide purchases for value and without notice is an important exception. Further, particular principles, or at least practices, have been developed with respect to collateral attacks in later litigation upon the outcome in earlier litigation where this was alleged to have been vitiated by fraud. It has been said in this Court that, except in very exceptional cases, fraud constituted by perjury by a witness or witnesses acting in concert is not a sufficient ground for setting aside a judgment. The precept engaged here has been identified as that favouring the finality of litigation.
17 The authorities in this field concern adjudication of civil actions and suits. A rather different trend has appeared in public law, particularly respecting the administration by superior courts of certiorari to supervise the exercise of jurisdiction by inferior courts and tribunals. In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ said of the scope of certiorari:
“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of the record’. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.”
Their Honours noted that in this context “fraud” was used in a broad sense which encompasses “bad faith”.
18 So strong was the policy protecting the due administration of justice, that a privative clause by which the legislature sought to exclude or attenuate the jurisdiction of superior courts to issue certiorari was ineffective to exclude the remedy where “manifest fraud” was shown on the part of the party which had obtained the order in the inferior court. Further, it was held in R v Wolverhampton Crown Court; Ex parte Crofts that the double jeopardy rule had no application where the Queen’s Bench Division granted certiorari to quash an order of acquittal obtained on the perjured evidence of the appellant to Quarter Sessions against his conviction by Justices; the effect of certiorari was to leave standing the regularly obtained conviction. In Davern v Messel Mason and Brennan JJ saw Crofts as displaying a proper balance between the protection of the defendant as the weaker party in a criminal case and the interests of society in ensuring the due administration of justice.
19 In Al-Mehdawi v Secretary of State for the Home Department Lord Bridge of Harwich gave as an example of “the principle that fraud unravels everything” a line of authority which he identified as follows:
“In R v Gillyard the court quashed by certiorari a conviction by justices shown to have been obtained by fraud and collusion. This was followed in R v Recorder of Leicester and extended in R (Burns) v County Court Judge of Tyrone to allow the quashing of an affiliation order obtained on the strength of perjured evidence of witnesses called to furnish the required corroboration of the evidence of the complainant, although it was not shown that the complainant herself was party to the perjury.”
20 When extending certiorari to cases of “third party fraud” in R (Burns) v County Court Judge of Tyrone, Lord MacDermott LCJ dealt as follows with the submission that the perjury must be by a party or the party must be privy to it:
“The supervisory jurisdiction of this court is not at large; but the general aim of that jurisdiction is to promote the due administration of justice, and if a distinction is to be drawn between cases where a decision is procured by perjury and cases where a decision is procured by perjury to which one of the parties is privy, it ought to rest on some basis of principle. I am unable to discern any such basis here. Litigation between parties, whether civil or criminal, does not necessarily mean that there are not others anxious or interested to sway the issue one way or the other, and it would, I think, be a grave defect in the procedure of this court if one of these forms of fraud could be noticed but not the other. I can find no rational ground for the sort of discrimination which must prevail if we are to accede to the submission under discussion. If certiorari does not lie in such circumstances there is no other redress and an order undoubtedly founded on perjury remains effective.”
21 The concern with the due administration of justice manifested in these decisions has been adapted in England to the position occupied in the legal system by administrative bodies and tribunals. For example, in R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Gormly Lord Goddard CJ said:
“if some collusive proceedings were taken, it would amount to a fraud on the tribunal, and where a fraud was proved I have little doubt that this court could intervene if necessary by an order of certiorari to get rid of a decision which the tribunal had been misled into making.”
In Australia, the constitutional considerations referred to earlier in these reasons place due administration of federal law within the field in which the superintendence of Ch III operates.
23 With respect to certiorari to quash summary convictions by reason, for example, of guilty pleas fraudulently induced by the conduct of police officers, the reasoning in the English authorities has been applied in Australia. The police officers in a sense are “third parties” in this setting, albeit persons in authority or acting under colour of authority.
24 As the Act previously stood, s 476(1)(f) provided as a ground for judicial review by the Federal Court that the decision in question “was induced or affected by fraud”. Lindgren J held in Wati v Minister for Immigration and Ethnic Affairs that the “fraud” was not limited to that of the decision-maker, a party, or a party’s representative, but that the decision in question must be actually induced or affected by the fraud. That reasoning was followed and applied by Lehane J in another s 476(1)(f) case.
25 Before its repeal by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), along with other provisions of Pt 8 of the Act, s 476 had limited the grounds for judicial review by the Federal Court but had retained the ground (s 476(1)(f)) that the decision was “induced or affected by fraud”. The Minister submitted in Wati that what was required was actual inducement or affectation by fraud, on the balance of probabilities and with due regard to Briginshaw v Briginshaw. Lindgren J accepted that submission but rejected the further submission that the “fraud” was limited to that of the decision-maker, a party or a party’s representative.
26 Lindgren J reasoned in Wati as follows:
“although the amending Act of 1992 [the source of s 476] limited the grounds of judicial review, I find no reason to think that the fraud referred to in s 476(1)(f) was intended to be limited in the way suggested by the Minister. Indeed, it is easy to accept that the legislature may have wished to ensure that a decision would be able to be reviewed where it was induced or affected by the fraud of some person. Assume, for example, that a decision of [the Immigration Review Tribunal (the IRT)] adverse to an applicant for a protection visa had been procured by the fraud of the individual’s opponents: in such a case, Australia would fail to observe its obligations under the Convention Relating to the Status of Refugees through no fault of the Minister or of the IRT, but as a result of a fraud perpetrated by others. It is not surprising to contemplate that the legislature might have wished, in such a case, that the fraud be able to be exposed and its effects remedied in this Court.”
27 The jurisdiction exercised in this case by the Federal Magistrates Court was not founded in the fully amplified system of statutory judicial review laid out in the repealed Pt 8 of the Act. Rather, it was conferred in terms referable to the conferral on the Court by s 75(v) of the Constitution itself. But that circumstance, given the significance of s 75(v) for due administration of federal law to which reference has been made earlier in these reasons, strengthens the case for its application to the appeal of reasoning akin to that of Lindgren J in Wati.
(Footnotes omitted; emphasis in original)
(1) Is conduct analogous to fraud “fraud” for the purposes of s 5(1)(g)?
185 Having reviewed the two judgments in SZFDE, I now turn to consider the first question set out above (at ): Is conduct analogous to fraud “fraud” for the purposes of s 5(1)(g)?
186 As French J noted in SZFDE, s 5 of the ADJR Act was generally intended to reflect the common law grounds for reviewing administrative decisions (SZFDE at  – see above at ). Fraud was a distinct established ground of review at common law: Craig at 175–6. The subsection of s 5 of the ADJR Act that reflects this distinct common law ground of review is s 5(1)(g). In SZFDE, French J reviewed the English and Australian authorities (SZFDE at – – see above at –) relating to the common law proposition that “fraud may vitiate an administrative decision made in the exercise of a statutory power”. His Honour then observed (SZFDE at  – see above at ) that the extension of that common law proposition to circumstances “analogous to fraud” covered “a range of situations which are not clearly delineated” and for which the underlying principle was still unclear. Nonetheless, he concluded that: “It is sufficient to say that a decision made in the purported exercise of statutory powers may be quashed by certiorari where the decision has been induced or affected by fraud or by circumstances analogous to fraud.” The words at the conclusion of this summary “induced or affected by fraud” replicate the operative words of s 5(1)(g). The additional words “or by circumstances analogous to fraud” plainly reflect the extension of the common law position discussed earlier by his Honour. The question then is whether this extension to the common law applies to the fraud ground of review stated in s 5(1)(g).
187 Based on the review of the English and Australian authorities conducted by French J in SZFDE, it appears that the expression “analogous to fraud” first entered the legal lexicon in 1991 in Scally (SZFDE at  – see at  above). As French J noted (SZFDE at – – see at  above) in Scally, Watkins LJ re-characterised his earlier decision in Goonatilleke as “a case analogous to fraud”. As to Scally itself, Watkins LJ described it as a “case … analogous to one of fraud, collusion or perjury”. Hutchison J described it as “that special category of cases, analogous to fraud and exemplified by the decision in R v Leyland Justices; Ex parte Hawthorn  QB 283” (Hawthorn). Interestingly, the expression “analogous to fraud” does not appear in the Hawthorn judgment. Instead, Lord Widgery CJ said (at 286):
However, if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category.
188 In Australia the expression appears to have been first used by Kearney J in Deland where his Honour said (at pp 78–9):
The alternative ground in Willan (supra) on which both Ms Judd and Ms Fraser relied was that the convictions should be set aside, as the circumstances in which they had occurred involved “a fraud on the court”. “Fraud”, in this context, is used in a broad sense; see Craig v South Australia (supra) at 176. Actual fraud or dishonesty is not required, but there must be something analogous to fraud.
189 It is not clear from his Honour’s reasons in Deland where Kearney J obtained the expression “analogous to fraud” from. It is not mentioned in Willan. To the contrary, the earlier quotation from that case upon which his Honour relied (see Deland at p 77) refers to “either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it”. Nor is it mentioned in Craig, either at the page cited by his Honour (p 176) or elsewhere. Instead, at that page of Craig, Brennan, Deane, Toohey, Gaudron and McHugh JJ described fraud as one of the “distinct established” grounds of review at common law supporting certiorari. The footnote to the reference to “fraud” (fn 58) states:
See, eg, R v Wolverhampton Crown Court; Ex parte Crofts  1 WLR 204 at 206;  3 All ER 702 at 704. And note that “fraud”, in this context, is used in a broad sense which encompasses “bad faith”: see, eg, Anisminic Ltd v Foreign Compensation Commission  2 AC 147 at 171.
190 The judgment in R v Wolverhampton Crown Court; Ex parte Crofts  1 WLR 204 (Crofts) to which the Court referred in this footnote did not use the expression “analogous to fraud”, but rather referred to a decision of an inferior tribunal which had been obtained by fraud (at 704). The reference to “bad faith” in Anisminic at 171 appears to be the following statement:
But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account.
191 This was confirmed by the High Court in SZFDE where it referred to the same footnote in Craig (SZFDE at  – see at  above) and said “their Honours noted that in this context ‘fraud’ was used in a broad sense which encompasses ‘bad faith’”. Immediately thereafter (SZFDE at  – see at  above), the Court went on to refer to Willan and Crofts in its discussion of the English authorities on the question “How much does ‘fraud’ unravel?”
192 Apart from Deland and French J in SZFDE itself, no other Australian decision appears to have used the expression in this manner. The two judgments dealing with the equivalent section to s 5(1)(g) of the ADJR Act in the Migration Act (the first leg to s 476(1)(f): “induced or affected by fraud or actual bias”), Wati and Jama, do not mention the expression although, as French J observed in SZFDE (at ):
Nevertheless in my opinion both judgments are consistent with the common law as developed in the English authorities referred to earlier albeit the judgments do not address the question of the circumstances “analogous to fraud”.
193 The High Court judgment in SZFDE did not mention the expression and nor did it refer to that part of the Full Court decision in SZFDE (at –) where French J discussed it. It did, however, refer to the judgments in Wati and Jama (SZFDE at – – see at  above) in considering the Australian authorities on the extent to which fraud unravels.
194 In SZFDE, the High Court underscored the infinite variety of conduct that constitutes fraud (SZFDE at  – see at  above). It pointed to the “different shades of meaning” that had been given to “fraud” in various areas of the law, including “the criminal law, the tort of deceit, registered designs law, the law of agency, statutes of limitation and dealings in Torrens title land” (SZFDE at ). Further, it adopted (SZFDE at  – see at  above) the reasoning of Lindgren J in Wati that the fraud in question is not necessarily limited to the decision-maker, a party, or a party’s representative.
195 The English and Australian authorities reviewed by French J in SZFDE and by the High Court demonstrate that fraud extends to include dishonesty, perjury, collusion and other seriously improper behaviour. That is, to use the words of French J (SZFDE at ) – see at  above): “Fraud involves dishonesty.” However, as both judgments in SZFDE show, there are rare circumstances where dishonesty has not been regarded as a necessary prerequisite for a court to intervene and order certiorari. In the criminal courts where a serious injustice has been inflicted on a person, usually by wrongfully recording a conviction against him or her, decisions have been set aside that do not involve the degree of wrongdoing that is commonly characterised as dishonesty. Furthermore, in public law, fraud has been held to extend to “bad faith” and “abuse of power” by a decision-maker which does not involve intentional dishonesty or moral obliquity, but instead involves acting on unreasonable or improper grounds (SZFDE in the High Court at – – see at  above). Further still, administrative decisions have been set aside where the decision-maker was not at fault, but the process had been rendered “seriously defective or irregular” (see, for example, Barrett at  above). This has occurred where relevant material has been withheld from a decision-maker and that has rendered the decision-making process of that character. On the other hand, in proceedings to set aside search warrants, the Full Court of the Federal Court in Lego held that there was no general or abstract duty of disclosure to be imposed on an officer applying for a search warrant. Nonetheless, while “a statement which was a half-truth and thus misleading” may be treated as a misrepresentation, for present purposes, it has to be in the nature of a fraudulent misrepresentation, because an innocent misrepresentation will not suffice (see at – above).
196 Taking account of all these matters, I consider the expression “analogous to fraud” does little more than reflect the infinite variety of conduct that falls within the meaning of the word “fraud”. In other words, that expression neither adds to, nor subtracts from, the wide and variable meaning that the law may give to the word “fraud”, ranging from the common law’s “red blooded” species to the public law’s unreasonable or improper grounds. Whether conduct is of such a character that a court is justified in characterising it as fraud such that it will vitiate an administrative decision will depend entirely on the particular facts and circumstances relevant to each individual case. Nonetheless, aside from the exceptional categories of cases mentioned above, the authorities show that the conduct in contention will generally involve some form of dishonesty, or involve some serious misconduct such as perjury or collusion, or be shown to have resulted in a decision which is “seriously defective or irregular”, none of which need be connected with fault on the part of the decision-maker.
197 This matter does not involve one of the first exceptional categories of cases mentioned above. It is not a criminal matter where a serious injustice has been occasioned to Mr Burragubba by, for example, a criminal conviction being wrongly recorded against him. I do not therefore consider Deland or similar authorities provide any support for Mr Burragubba’s case on this ground. Furthermore, Mr Burragubba does not allege that the Tribunal acted in bad faith, or in abuse of its powers. Instead, he has pointed to the conduct of a party before the Tribunal, namely Adani, and alleged that it dishonestly misled the Tribunal. Thus, despite placing great store in the expression “analogous to fraud”, he has ultimately relied upon dishonest conduct which, if it occurred, would fall squarely within the extended meaning the law can give to the word “fraud”. In making this allegation, Mr Burragubba has specifically relied upon the second of the two examples given by French J in SZFDE (at  – see at  above), namely “Relevant material favourable to a person to be affected by the decision may be deliberately and dishonestly withheld by a third party who would reasonably be expected to disclose it either in the discharge of a statutory duty or by reason of that party’s official responsibilities in the administration of the decision-making process.” While this example specifically refers to “a third party”, the underlying principle clearly applies to a party. It is, therefore, the kind of conduct that may fall within the third category of exceptional cases mentioned above: conduct resulting in an administrative decision which is seriously defective or irregular. Thus, if it occurred, that conduct would be fraud perpetrated on the Tribunal by a party to the proceedings before it within the terms of s 5(1)(g) of the ADJR Act. Put differently, Mr Burragubba’s “conduct analogous to fraud” contention is an unnecessary distraction from the real issue he has sought to raise. For these reasons, I conclude that, if it occurred, Adani’s conduct in allegedly misleading the Tribunal in the manner described in Mr Burragubba’s third further amended originating application is conduct which is capable of constituting fraud for the purposes of s 5(1)(g) of the ADJR Act. Whether it does requires an examination of all the relevant facts and circumstances of this matter to ascertain whether it was of the kind and had the effect described above, an exercise which I will undertake later in these reasons. However, as to the particular question presently under consideration, I consider the answer is: “It is not necessary to answer because the conduct alleged against Adani is not truly of that character”.
(2) If not, does the expression “the procedures that were required by law” in s 5(1)(b) include a requirement to avoid conduct analogous to fraud?
198 This is the second question posed above (at ). It is put in the alternative to question 1, although, as is apparent from para 1 of Mr Burragubba’s third further amended originating application, the same conduct is relied upon for both alternatives, namely “conduct analogous to fraud”. One consequence of that is that both questions must be answered in the negative if, after considering all the relevant facts and circumstances of this matter, I conclude that Adani’s conduct is not capable of constituting fraud. Nonetheless, because this question raises a separate issue of statutory construction, I will address it briefly.
199 Section 5(1)(b) of the ADJR Act is set out above (at ). Mr Burragubba claimed that “such conduct [Adani’s conduct analogous to fraud] has caused and resulted in a failure to observe the requisite procedures in connection with the making of the” determination by the Tribunal within the terms of s 5(1)(b). The “procedures” he has identified are “the requirements that the parties not conduct themselves in a manner analogous to fraud”. The question therefore is whether such “procedures” fall within the terms of s 5(1)(b). I do not consider they do.
200 In the first place, as I have already noted above (at ), s 5(1)(g) of the ADJR Act reflects the fraud ground of review at common law (see at ). In the public law field, fraud here refers to bad faith, abuse of power and to conduct that renders a decision seriously defective or irregular (see at  above). By contrast, s 5(1)(b) defines a “procedural error” ground of review directed to statutory procedures: see Aronson at [6.230]. Since these two subsections of s 5(1) are directed to two discrete and distinct matters: fraud and procedural error, it would be unlikely, in my view, that procedures involving conduct that is analogous to fraud were intended to fall within the terms of s 5(1)(b). In this instance, this conclusion is supported by the text of s 5(1)(b). By its terms, it concerns a decision-maker’s failure to observe “procedures that were required by law to be observed”. Mr Burragubba has identified as such a procedure: “conduct analogous to fraud”, in which he claims persons should not engage. The effect of this construction is that, rather than identifying a procedure that is required to be followed, he has identified a “procedure” that should not be observed. This is the opposite of what s 5(1)(b) requires. In other words, it has the effect of converting s 5(1)(b) from a prescriptive provision into a proscriptive provision. I do not consider such a construction is open on the ordinary meaning of the words used in s 5(1)(b). For these reasons, question 2 must be answered “no”.
(3) Did Adani make a representation to the Tribunal that was dishonestly misleading?
202 The first question is: Was the EIS materially different to the expert reports submitted to the Land Court? In support of this question being answered in the affirmative, Mr Burragubba provided the particulars set out above (at [133(d) and (e)]). Those particulars (particularly (e)) compare the figures set out in the EIS and those in the two Fahrer reports insofar as both relate to the employment impacts of the Carmichael project and the gross regional and State income increases that it is likely to produce.
203 A superficial comparison of those figures shows that they do, indeed, provide very different estimates of those features of the Carmichael project. However, the critical issue raised by this question is not whether those estimates are different, even very different, but rather whether they are materially different. The ordinary meaning of the word “materially” is: “to an important degree, considerably” (Macquarie Dictionary, 4th ed). However, in this context, I consider the expression “materially” conveys more. That is, I consider it has a similar meaning to that of the expression “material facts” in pleading terminology. Specifically, the facts that define the nature of the case alleged against the opposite party and those facts necessary to establish the essential elements of the moving party’s case: see Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd  FCA 1568 at – per Lindgren J. Applied to the differences at the centre of this question, that therefore means a difference that, to an important or considerable degree, redefined the nature of the case Adani put before the Tribunal, or that so affected one of the essential elements, or components, of that case, that Adani could reasonably have been expected to disclose it to the Tribunal.
204 To understand whether these differences have that character, it is first necessary to define the essence of the case Adani put before the Tribunal on this economic issue and then to ascertain how, if at all, these two sets of economic materials – the economic section of the Executive Summary to the EIS and the two Fahrer reports – affected that aspect of Adani’s case. In that exercise, it is appropriate to begin by identifying what relief Adani was seeking from the Tribunal. The short answer to that question is a determination under s 38 of the NTA. That is, a determination as to whether the “act” in question must not be done, or may be done, and, if the latter, whether with or without conditions. However, to identify how the economic issue arose with respect to that determination, it is necessary to examine the other pertinent provisions of the NTA and the proceedings before the Tribunal in more detail.
205 The “act” in question was the grant of the two mining leases to Adani, as described in the notice that the State issued under s 29 of the NTA. As can be seen from the content of that notice (see at  above), the two mining leases covered an area of slightly more than 185 square kilometres and the term of those leases was not to exceed 30 years “with the possibility of renewal for a term not exceeding 30 years”. It is also important to note that the “act” was limited to the grant of the two mining leases; it did not include a grant for the purpose of constructing an infrastructure facility associated with mining (see s 26(1)(c)(i)), nor did it include any grant for the purposes of the rail project associated with the Carmichael mine. The Tribunal appeared to be alert to this distinction because it noted that, although the figures provided by Adani related to the whole project, “the benefits to the project will be experienced in the area of the proposed leases” (Reasons  – see at  above). Finally, it is to be noted that, in making its determination, the Tribunal was required to consider the criteria set out in s 39 of the NTA (see at  above). The particular criterion that raised this economic issue was that in s 39(1)(c) of the NTA: “the economic or other significance of the act to Australia, the State … concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area.”
206 In the course of submitting its statement of contentions and supporting material in accordance with the Tribunal’s directions (see at  above), Adani made use of the economic section of the Executive Summary to the EIS. In doing so, it claimed that the grant of the two mining leases “will have highly significant positive economic impacts on the country, the State and the local region” (see at [29(3.52)] above). It then provided a series of figures in support of that claim which had obviously been extracted from the economic section of the Executive Summary to the EIS (see [29(3.53–3.55)] above). They included the contentious employment figures that are mentioned in the Tribunal’s Reasons (see Reasons  at  above) and also appear in the first of the particulars that Mr Burragubba has provided in support of this ground (see paragraph (e)(i)(A) at  above). It follows that the essence of the case that Adani put to the Tribunal in relation to the economic significance of the project raised by the criterion in s 39(1)(c) was that the act of granting the two mining leases would have a highly significant positive economic effect for the purposes of that criterion.
207 Next, it is necessary to turn to Dr Fahrer’s two reports to ascertain what effect, if any, they may have had on this aspect of Adani’s case before the Tribunal. It is appropriate to begin, however, with the Joint Report that preceded, and was the catalyst for, those two reports. It is apparent from the terminology used in the particulars Mr Burragubba provided (at [133(d)] and [133(e)] above) that he has focused on two particular paragraphs of that Joint Report. The words “likely to have over-estimated the economic benefit of the project” appear to have come from paragraph 106 of the Joint Report (see at  above); and the words “insight into the financial viability or economic efficiency of the Carmichael Project” appear to have come from paragraph 103(b) (see also  above).
208 It can be seen from his comments beside those paragraphs in the Joint Report that Dr Fahrer essentially agreed that a CGE analysis and a CBA analysis, respectively, would provide more accurate estimates of these aspects of the Carmichael project. Nonetheless, his agreement to the former was qualified by the following statement: “It is likely to have overestimated the employment benefits, however it is unclear to what extent output and income impacts are overestimated.” These issues and all the other matters raised in the Joint Report were examined and rejected by Dr Fahrer in his two subsequent reports, particularly his Second Report. The terms of that rejection are set out above (at –), although it should be noted that he did not there specifically address the employment benefits of the project. The details of that rejection emerge from a consideration of Dr Fahrer’s two reports as follows.
209 Both of Dr Fahrer’s reports were directed to the “Carmichael Coal and Rail Project” (see at  and  above). Together, they considered “whether any good reason had been shown for a recommendation that the application [to grant the two mining leases] be refused pursuant to s 269(4)(l)” (see at  above). The negative strains in this statement are explained by the specific criterion in s 269(4)(l) of the Minerals Act to which Dr Fahrer’s reports were directed: “any good reason has been shown for a refusal to grant the mining lease” (see at  above). As is already mentioned above in his two reports, Dr Fahrer used two different methods of evaluation: a CGE model and a CBA model.
210 Both reports state that the headline results of the CGE modelling was that the Carmichael project “will result in significant real income gains for Australians in general and Queenslanders in particular” (see at  above). This conclusion removed any equivocation that may have been expressed by him in the Joint Report. As well, in the concluding summary to his Second Report, Dr Fahrer opined that “[t]he analysis in this report shows that the economic benefit of the Carmichael Project is very large” (see at [89(218)] above). He further opined that “[t]he CGE analysis shows a highly positive economic impact on incomes in the [Mackay] region, Queensland and Australia. In Queensland, real incomes will rise between $18.6 billion and $22.8 billion, in real present value terms” (see at [89(219)] above). And finally he opined that “[t]he 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” (see at [89(222)] above).
211 It can therefore be seen that the overall effect of the results of the analyses conducted by Dr Fahrer and the opinions expressed by him in his two reports was that the Carmichael project would have a highly positive and significant benefit for Australia, the State of Queensland and the Mackay region of the State. This conclusion is almost identical to the case Adani put to the Tribunal in its contentions on the criterion in s 39(1)(c) using the economic section of the Executive Summary of the EIS for support. As noted above, that contention was to the effect that the Carmichael project “will have highly significant positive economic impacts on the country, the State and the local region” (see at  above).
212 The figures stated in the EIS were undoubtedly different from the figures stated in Dr Fahrer’s second report, particularly with respect to the employment benefit of the Carmichael project (see at  above). However, with respect to the criterion in s 39(1)(c) (which does not specifically mention employment benefit) and the economic significance of the “act”, namely granting the mining leases, the ultimate conclusions expressed in both sets of economic materials were almost identical. That being so, I do not consider that, at the time Adani submitted the EIS to the Tribunal, it had in its possession material, namely the Joint Report and the two reports of Dr Fahrer, that were materially different from the conclusions in the EIS. That is to say, I do not consider Dr Fahrer’s reports were such that they, to an important or considerable degree, redefined the nature of the case Adani put before the Tribunal, or to that degree affected one of the essential elements or components of that case that it could reasonably have been expected to disclose those reports to the Tribunal.
213 In essence, what Mr Burragubba has done is to concentrate on the figures set out in one part of Dr Fahrer’s second report and to ignore the overall import of that report. He has also ignored the fairly obvious range of factors that were likely to explain the differences in the figures in the two sets of materials. They include the marked difference in the processes that were followed to prepare them; the differences in the underlying assumptions upon which they were based; the different methodologies that were used to produce them; and the differing criteria to which they were directed.
214 The most obvious explanation that Mr Burragubba appears to have ignored is the fact that the methodologies used to carry out the analyses in the two sets of materials were quite different. The EIS used an I-O (input/output) methodology as dictated by the Terms of Reference (see at [53(1.4.3)] above). For his part, Dr Fahrer used two different methodologies: the CGE methodology and the CBA methodology. The marked differences between, and purposes of, those methodologies have been outlined in detail above (see at ,  and ). In broad terms, the I-O method assessed the gross effect of the Carmichael project in terms of economic output and jobs created, whereas the CGE model assessed its net effects. Thus, for example, with respect to the labour market aspects, the I-O method assumed that all jobs created by the Carmichael project would be new jobs, whereas the CGE model assumed that a proportion of the jobs created by the project would be filled by employees transferring from existing jobs.
215 Another obvious explanation that Mr Burragubba seems to have ignored is the fact that the underlying assumptions relied upon in the preparation of the economic section of the EIS and the preparation of the two Fahrer reports were markedly different. The EIS had regard to the data sources outlined at paragraph 1.4.3 (see at  above), it was based on the project reaching a full production level of 60 Mtpa and having an operating life of approximately 90 years (see at [55(3.2.1)] above). It was also based on the project occurring in two main stages – a construction stage and a stage leading up to and during full production (see at [55(3.2.1)] above). On the other hand, the two Fahrer reports were based upon an ultimate production level of 40 Mtpa and confined to the first 30 years of the mine’s production (see at – above).
216 These factors provide likely explanations as to why the employment figures in these two sets of economic materials were so different. But they do not affect the broad conclusion reached in both sets of materials that the Carmichael project would have a highly significant economic benefit for Australia, Queensland and the Mackay region. It would follow that either set of materials could have been used by Adani to support its case before the Tribunal, directed to the criterion in s 39(1)(c) about the economic significance of the Carmichael project. Indeed, it is to be noted that, while the Land Court found that Adani had overstated certain elements of the financial and economic benefits of the project, that did not affect its conclusion that the application should be recommended to the Minister for granting (see at  above).
217 Once this conclusion is reached, the remainder of Mr Burragubba’s case on this ground collapses. If the two sets of economic materials were not materially different, there is no need to examine the knowledge that Adani’s officers held in relation to that non-existent material difference as required by the question outlined in [151(b)] above. There is also no need to consider the question whether the two Fahrer reports were, for that non-existent reason, deliberately withheld from the Tribunal ([151(c)]). It necessarily follows that the representation described above [151(d)] did not arise and nor was it dishonestly misleading [151(e)]. It is also unnecessary to examine the fourth and fifth questions outlined above (at ).
218 Nonetheless, in case this conclusion is later found to be incorrect and in deference to the detailed submissions that were provided by all parties on the issues related to the questions mentioned above, I will briefly express my views with respect to a number of them. I will deal first with the approach that should be taken to the assessment of the knowledge held by Adani’s officers, Mr Haseler and Mr Manzi. On this question, I generally accept the submissions of Adani (see at – above) and reject those of Mr Burragubba (see at – above). To explain why I have come to this conclusion, it is first necessary to reiterate briefly how Mr Burragubba puts his case on this point and then to return to the High Court judgment in SZFDE. On the former, as can be seen from the outline of his contentions above (at –), Mr Burragubba claims that it is only necessary to make an objective assessment of the conduct of Adani’s officers to determine whether it was dishonest. Specifically, whether the Fahrer reports were so material to the case Adani put to the Tribunal on the economic criterion in s 39(1)(c) that, in the circumstances, it was reasonable to expect Adani’s officers to disclose those reports to the Tribunal such that their failure to do so could be said to be dishonest. He claims that this is the only assessment required and the actual knowledge held by Adani’s officers about this matter is irrelevant. Having outlined how Mr Burragubba puts his case on this point, it is next convenient to turn to SZFDE.
219 In that judgment (at ), the High Court cited a number of its recent decisions where it had considered the different meanings given to fraud in various areas of the law. An examination of those decisions shows that, with the possible exception of the law of agency (Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160;  HCA 1 at –) objectively assessed dishonesty is not enough, it is also necessary to establish that the person concerned knew that his or her conduct was wrong in the relevant sense.
220 In the criminal law area, that is apparent from the decision the Court cited of Macleod at  per Gleeson CJ, Gummow and Hayne JJ and also  per McHugh J and  per Callinan J. Each of those judgments relied, in turn, at least in part, upon the observations of Toohey and Gaudron JJ in Peters at , as follows:
In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if “dishonest” is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest.
221 It is worth recalling that Mr Burragubba has also relied upon that part of the judgment in Peters to support his contentions on this point set out above. In particular, he has focused on one part of the observations above, namely whether the act was dishonest according to ordinary notions, and has ignored the remainder which, in my view, makes it clear that, as well as deciding whether the act was objectively dishonest in the relevant sense, the jury must also decide whether the accused had the requisite knowledge of, or belief about, that dishonest act. In the civil law area, this approach was confirmed in the case of Krakowski, which the court cited in SZFDE as the example in the tort of deceit. In Krakowski at 576–577, the Court observed:
When fraud is alleged against a defendant, it is not enough to prove that the representation as pleaded was false. The words or conduct by which a representation is made may be understood in different senses. The words or conduct may be understood by a reasonable person in the position of the representee in one sense, by the representee in a second sense and by the representor in a third sense. Or the representee may understand the words or conduct in a sense which the representor knew the representee might understand them, albeit not in the sense in which a reasonable bystander would understand them. The differing senses in which words or conduct are understood must be borne in mind in determining whether the several elements of deceit are proved.
The sense in which a representation would be understood by a reasonable person in the position of the representee is prima facie the sense relevant to the question whether the representation is false. The sense in which a representation is understood by the representee is relevant to the question whether the representation induced the representee to act upon it. And the sense in which the representor intended the representation to be understood is relevant to the question whether the representation was made fraudulently.
222 It is the last sense which is relevant to the assessment in this matter: the sense in which Adani’s officer intended the alleged representation to be understood. The High Court reiterated this principle more recently in Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486;  HCA 39 at  per French CJ, Gummow, Hayne and Kiefel JJ where it confirmed what was said in Krakowski at 576–577 above in the following terms:
On their face, these allegations mixed two radically different and distinct ideas: that Fortescue knew that the statements were false (it had no genuine basis for making them) and that Fortescue should have known that the statements were false (it had no reasonable basis for making them). At common law the first idea is expressed in the tort of deceit and the second in liability for negligent misrepresentation. And since at least 1889 and the well-known decision of the House of Lords in Derry v Peek, it has been firmly established that a false statement, made through carelessness and without reasonable grounds for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. As four members of this Court said in Krakowski v Eurolynx Properties Ltd: “In order to succeed in fraud, a representee must prove, inter alia, that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood.” (Emphasis added.)
(Emphasis in original; footnotes omitted)
223 The distinction, therefore, is between a representation which is made innocently, and yet may be considered objectively to be misleading or deceptive, and one which is both objectively misleading and made with the intention to mislead or deceive. The former is analogous to a misleading or deceptive representation in contravention of s 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth) where intent is not directly relevant, but the question is whether the representation was objectively likely to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 225, 228 per Stephen J and Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197 per Gibbs CJ.
224 In the administrative law area, this distinction was highlighted by Chesterman J in Firearm Distributors Pty Ltd v Carson  2 Qd R 26;  QSC 159 (Carson) where, in the course of dealing with a challenge to an administrative decision made under s 71(3) of the Weapons Regulation 1996 (Qld), his Honour said (at ):
It is not clear from the authorities whether “fraud or misrepresentation” where it operates to allow a decision to be re-opened is limited to fraudulent misrepresentations or whether an innocent misstatement will suffice. On the basis that a mistake as to the facts is not sufficient to overcome the prohibition against re-making decisions it may well be that an innocent misrepresentation is not enough. The word “misrepresentation” should perhaps be understood as referring to fraudulent misrepresentation and “fraud” as referring to dishonesty of a more general kind, so that only conduct of that kind will vitiate a decision and allow the power to be exercised afresh.
225 To similar effect, in Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 29;  NSWLEC 725, Biscoe J considered a challenge to a consent determination that was made in a set of factual circumstances that are similar to those of the present case. In that matter, the plaintiff alleged that information and documents in the possession of the developer and its consultant relating to the cultural significance of a development site to Aboriginal people were withheld from the Minister. Similarly to Jagot J in Seven West, his Honour posed the threshold question “whether ‘innocent’ misleading conduct can invalidate a development consent”. He went on to note that “this kind of misleading conduct is familiar under legislation such as s 52 of the Trade Practices Act 1974 (Cth)”. After referring to a number of decisions on the point, including the Full Court decision in Lego and the decision of Chesterman J in Carson (at –), Biscoe J concluded to the contrary as follows (at ):
I uphold the respondents’ submission that misleading conduct which is not characterised by fraud, bad faith or the like is, at least generally, insufficient to vitiate an administrative decision. That disposes of this ground of challenge.
226 These decisions show that Mr Burragubba is incorrect in his contention that, where the issue concerns a representation that involves “material dishonesty” (to use his description: see at  above), objective dishonesty is sufficient. Instead, in the case of a dishonest or fraudulent representation, the moving party must also show that the representor knew that his or her representation was false or misleading. It is worth adding that, in this context, dishonesty has been held to be interchangeable with fraud: see Macleod at . It follows that, in this case, as well as showing that the alleged representation was objectively dishonest, Mr Burragubba had to show that Adani’s officers, Mr Haseler and Mr Manzi, knew that was so, specifically that they knew the Fahrer reports were so materially different from the economic section of the EIS that they could reasonably have been expected to put them before the Tribunal such that a failure to do so conveyed by implication the false representation that the EIS economic material was not in dispute.
227 Consistent with its position that Mr Burragubba had to establish both the objective and subjective elements of his case that its officers had dishonestly misled the Tribunal, Adani filed affidavits by Mr Haseler and Mr Manzi, where they described in great detail their knowledge and belief about the contents of the EIS vis-à-vis the contents of the two Fahrer reports. Neither was cross-examined on his affidavit. Since Mr Burragubba has, for the reasons outlined above, failed to establish that the conduct of Adani’s officers was objectively dishonest, it would be a pointless exercise to examine those affidavits insofar as they bear upon the subjective element mentioned above. Nonetheless, it is worth noting that, even if Mr Burragubba had been successful in establishing that the conduct of Adani’s officers was objectively dishonest, he would most likely have failed on this ground in any event as a necessary consequence of his failure to cross-examine Mr Haseler and/or Mr Manzi: see Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370–371 per Gibbs J.
228 Having reached these conclusions, I do not consider it is necessary to examine the authorities on the complex issue of implied representations and half-truths: see Aronson at [5.610] and the authorities there cited. It will suffice to observe that, accepting the Joint Report and the two Fahrer reports “qualified the validity” of the economic material in the EIS (see Mr Burragubba’s contentions at  above), in all the circumstances outlined above, I do not consider that factor placed Adani under any obligation to put those reports before the Tribunal or, conversely, that a failure to do so constituted an implied representation that the economic materials in the EIS were not in dispute. Subject to the proviso that they must not mislead a court, litigants before a court are generally entitled to adduce whatever relevant evidence they consider will support their case: see Tombling v Universal Bulb Co  2 TLR 289 at 297, per Denning LJ; Meek v Fleming  2 QB 366 at 379 per Holroyd Pearce LJ; Vernon v Bosley (No 2)  QB 18 at 37 per Stuart-Smith LJ and, at 63, per Thorpe LJ; Forster v Legal Services Board (2013) 40 VR 587;  VSCA 73 at 619–620; – per Kyrou AJA. With administrative decision-makers, the aforementioned proviso will extend to include any apposite statutory requirements and to prevent a person withholding material that is clearly relevant to the particular decision where, to withhold that material, will result “in the decision-making process being rendered seriously defective or irregular” (see Barrett at  above). In this matter, there is no express or implicit obligation in the NTA which required Adani to provide the Fahrer reports to the Tribunal. All of the apposite provisions place obligations on the Tribunal. They are to inquire into Adani’s right to negotiate applications (s 139), to determine those applications in one of three ways (s 38) and, in making that determination, to take account of the criteria in s 39. Further, in the circumstances of this matter which I have described in detail above, I do not consider Adani’s failure to place those reports before the Tribunal had, or would have had, the seriously defective effect described above. I do not therefore consider Adani was under any obligation to provide those reports to the Tribunal.
229 Finally, it is difficult to see how any unfairness would have been occasioned to Mr Burragubba by Adani’s failure to put those reports before the Tribunal. The judgments in SZFDE (both in the High Court and in the Federal Court) show that some form of procedural unfairness in the administrative decision-making process is necessary to justify a court intervening in the manner contended for by Mr Burragubba. As is apparent from the examination of those reports above, they opine that the Carmichael project would bring significant economic benefits for Australia, the State of Queensland and the Mackay region of that State. Even assuming, therefore, that the figures in those reports showed that the economic benefits of the Carmichael project were overstated in the EIS, it is difficult to see how that would have assisted Mr Burragubba. That is so because, as is outlined in some detail in the statements he submitted to the Tribunal, he and his group are implacably opposed to the Carmichael mine proceeding because of the adverse effects he claims it will have on the enjoyment of their native title rights and interests. That being so, to obtain some support from the Fahrer reports, those reports would need to have opined that the Carmichael project had no, or very little, economic significance. Only then would they have provided support for his total opposition to the Carmichael project. Since they were to the opposite effect, I do not therefore consider Mr Burragubba would have been the subject of any relevant unfairness by Adani’s failure to provide those reports to the Tribunal.
230 For these reasons, the answer to question 3 must be “no”. That being so, it is unnecessary to consider the remainder of the questions posed above (at ).
Conclusion on ground 1
231 For all these reasons, I consider Mr Burragubba has failed on ground 1.
232 Ground 4 is set out above (at ). Mr Burragubba provided the following particulars for that ground:
(a) The communications were evidence of the ‘the interests, proposals, opinions or wishes’ of the native title claim group or the native title party for the [Wangan and Jagalingou] application, or members of that claim group.
(b) At  of the Reasons, the [Tribunal] stated that [it] did not know ‘the specific interests, wishes and proposals’ of the native title party.
(c) Implicit in the conclusion at  is the erroneous construction to which this ground of review relates.
233 The communications referred to in (a) above were the statements Mr Burragubba and Ms Bobongie submitted to the Tribunal. This ground and grounds 2 and 3 advance differing arguments for the proposition that the Tribunal erred in not considering those statements. In order of priority, ground 4 is the primary basis for this proposition. The paragraph of the reasons to which particular (c) above relates is set out at  above. It concerns the Tribunal’s consideration of the criterion in s 39(1)(b). As that particular asserts, the references to “the native title party” throughout that paragraph of the Tribunal’s Reasons plainly refer to that entity rather than the native title claim group. This ground therefore concerns the meaning of the expression “native title party”, particularly as it appears in the criterion in s 39(1)(b): “the interests, proposals, opinions or wishes of the native title parties”.
234 It should be noted at the outset that Mr Burragubba accepted that he was not a party to Adani’s right to negotiate applications and he was not, therefore, entitled, as of right, to be heard, or make submissions to the Tribunal, with respect to those applications. Nonetheless, he contended that, properly construed, the expression “native title party” in s 39(1)(b), insofar as it arises in this matter, means and refers to the members of the native title claim group for the Wangan and Jagalingou application. Further, he contended that the individual members of that claim group may represent their “interests, proposals, opinions or wishes” to the Tribunal. He contended that the Tribunal wrongly concluded that the expression “native title party” meant the persons comprising the WJ Applicant acting collectively. Alternatively, if it were those persons, he contended they could act individually and were not required to act collectively. As is noted in the preceding paragraph, he claimed that this erroneous construction was implicit from the Tribunal’s Reasons at . He contended that there was “otherwise no explanation for the [Tribunal’s] disregard, in that paragraph, of the communications received” from himself and Ms Bobongie.
235 Mr Burragubba contended that the Tribunal’s construction of the expression “native title party” was wrong for two reasons. First, he relied on the fact the Wangan and Jagalingou application is a representative proceeding and contended that the interests, proposals, opinions or wishes mentioned in s 39(1)(b) were therefore fundamentally those of the native title claim group. Secondly, he contended it was wrong because the other expressions used in s 39(1) such as “way of life, culture and tradition” and “social, cultural and economic structures” could only refer to those features of the native title claim group as a whole. Conversely, he claimed those expressions could not refer to the “interests, proposals, opinions or wishes of the three individuals named as the [WJ] ‘Applicant’ in this matter”.
236 In support of these contentions, Mr Burragubba sought to draw a distinction between the authority of an applicant under s 62A of the NTA and the position of the native title party under the right to negotiate provisions of the NTA. He claimed the native title party did not have the express authority that s 62A gave to the applicant. Accordingly, he claimed that the statements both he and Ms Bobongie made to the Tribunal as individual members of the native title claim group were “evidence of the ‘interests, proposals, opinions or wishes’ of the native title party” as that expression is used in s 39(1)(b). Further, he contended the Tribunal should have accepted those statements and taken them into account in making its determination under s 38 of the NTA. He claimed those statements were “the most current information available to the [Tribunal]” on those matters. Finally, Mr Burragubba contended that the claims made by Adani and the State that this construction would render the right to negotiate provisions of the NTA unworkable should be rejected as an exaggeration. He contended that the scope of the inquiry prescribed by s 139(1) of the Act was “a broad one not confined to the personal views of the persons comprising the Applicant in a registered native title determination application”. He contended that the right to negotiate provisions of the NTA are “well capable of receiving multiple and differing positions from persons comprising a registered native title claimant”.
237 As a preliminary question, Adani contended that Mr Burragubba’s argument that the expression “native title party” means each individual whose name is listed on the Register of Native Title Claims as the applicant, or each member of the Wangan and Jagalingou native title claim group, was a new argument not included in his amended application. This contention can be rejected at once. I consider Mr Burragubba’s amendment to insert the word “collectively” into ground 4 properly raised this argument: see the amended ground set out at  above.
238 Apart from this preliminary contention, Adani put forward a number of reasons why it claimed Mr Burragubba should fail on this ground. First, it submitted the statements Mr Burragubba and Ms Bobongie provided to the Tribunal were not made by them as a native title party, but rather as members of the Wangan and Jagalingou Family Representative Council which, it claimed, was a subset of the native title claim group, not the native title party as such. Secondly, even if that were not so, it submitted the Tribunal rejected those statements for reasons unconnected with its interpretation of the expression “native title party”. Thirdly, and in any event, it submitted that the Tribunal had not erred in its construction of the expression “native title party”. On that issue, it submitted that the reference to “native title parties” in s 39(1)(b) is a reference to the registered native title bodies corporate and the registered native title claimants in their representative capacity such that they were required to reflect the “interests, proposals, opinions or wishes” of the common law native title holders, or the native title claim group, respectively. Further, it submitted that, where there are multiple members of the registered native title claimant, they must discharge their role before the Tribunal “collectively through the instrument of the ‘native title party’”. Were it otherwise, it submitted, the Tribunal could be faced with multiple conflicting accounts of the “interests, proposals, opinions or wishes” of individual members of the native title party.
239 Adani submitted that this approach was consistent with that which has been consistently taken by the Tribunal for the past 15 years. It submitted that “the intention of the NTA is that the native title party shall act jointly or collectively, since it would be impractical for the roles to be performed separately by multiple individuals who are named on the Register”. It submitted “it would not be consistent with economy, informality or promptness to impose on the Tribunal the burden of having to seek the views of individual members of the native title claim group before making a determination in relation to a future act”. It submitted that the right to negotiate provisions would be made unworkable if multiple parties were able to participate in negotiations; to make objections before the Tribunal about matters such as the expedited procedure; to make an application to the Tribunal under s 35; to act as a party in those proceedings with legal representation; and to lodge an appeal to the Federal Court if dissatisfied with the outcome of such proceedings.
240 The State made similar contentions to Adani’s. It submitted that the expression “native title party” refers to “all the persons who are entered on the Register of Native Title Claims as the applicant”. It contended that this meant that, if the applicant consisted of three people, 12 people, or 36 people, there was only one native title party comprising all those persons. Furthermore, it submitted those persons must act collectively. In this regard, it relied upon various decisions of the Tribunal where it had adopted that practice. It contended that this conclusion was not affected by the fact that the Wangan and Jagalingou application was a representative proceeding. To the contrary, it submitted that “the native title party enjoys the same authority to bind the native title claim group in the right to negotiate process as the [WJ] Applicant does in relation to pursuing [the Wangan and Jagalingou] native title determination application”.
An exercise in statutory construction
241 As can be seen from the contentions above, s 39(1)(b) is at the centre of Mr Burragubba’s arguments on this ground. In particular, he has focused on the expression “interests, proposals, opinions or wishes of the native title parties” and contended that the reference in it to the “native title parties” must mean the native title claim group as a whole and that the interests, proposals, opinions or wishes of that group may be represented by its individual members. These contentions obviously involve an exercise in statutory construction. About such an exercise, the plurality of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;  HCA 28, said (at ):
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”.
242 More recently, the same principle was expressed by the Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27;  HCA 41 (Alcan) at  and Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167) (2012) 293 ALR 257;  HCA 55 (Consolidated Media Holdings) at  and Thiess v Collector of Customs (2014) 250 CLR 664;  HCA 12 at – per French CJ, Kiefel, Gageler and Keane JJ. For example, in Consolidated Media Holdings, the Court said (at ):
“This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
243 Similar observations were made by the Full Court of this Court in Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13;  FCAFC 70 (Quikfund) when, after quoting parts of the High Court decisions in Project Blue Sky, Alcan and Consolidated Media Holdings above, the Court emphasised the importance of context and purpose, as follows (at ):
The place of the context and purpose of a statute and their relationship with its text has also been the subject of detailed consideration by the High Court since 1990: see the cases referred to in Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704 at -. Often, the relationship between context (including pre-enactment history), purpose and text will be illuminated by the subject matter of the statute, as well as by the approach to expression by the drafter. … Nothing in Alcan or Consolidated Media Holdings requires a decision about the clarity of meaning of text without reference to context and purpose. What was said in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at - and in the other High Court cases cited in Wilson at - remains binding authority.
244 Accordingly, in determining the proper construction of s 39(1)(b), I propose to begin with an examination of the primary purpose of the NTA, to then turn to the role, purpose and scheme of the right to negotiate provisions of the NTA, to then consider the broader statutory context of s 39 and, finally, to turn to the text of s 39(1)(b) itself.
The primary purpose of the NTA
245 It is trite to say that the primary purpose of the NTA is to recognise and protect native title. So much is clear from the objects of the NTA stated in s 3 and provisions such as s 4(1): “This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.” and s 10: “Native title is recognised, and protected, in accordance with this Act.” The “native title” to which these provisions refer is relevantly defined in s 223 of the NTA to mean:
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
Statutory rights and interests
(3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.
Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.
(Emphasis in original)
Native title is ordinarily communal
246 This definition is consistent with the oft-quoted observations of Deane and Gaudron JJ in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) at 109–110: “Ordinarily, common law native title is a communal native title and the rights under it are communal rights enjoyed by a tribe or other group.” To similar effect, Brennan J observed (at 62): “A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands”. Furthermore, in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442;  FCAFC 135 at , the Full Court of this Court (Wilcox, French and Weinberg JJ) noted that one of the basic propositions to be derived from Mabo (No 2) was that:
5. Under common law, native title has the following characteristics:
(a) it is communal in character although it may give rise to individual rights;
(b) it cannot be bought or sold but can be surrendered to the Crown;
(c) it may be transmitted from one group to another according to traditional law and customs;
(d) the traditional law and custom under which native title arises can change over time and in response to historical circumstances; and
(e) native title is subject to existing valid laws and rights created under such laws.
See also Western Australia v Sebastian (2008) 173 FCR 1;  FCAFC 65 at  per Branson, North and Mansfield JJ.
The role, purpose and scheme of the right to negotiate provision
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.
248 In Western Australia v Ward (1996) 70 FCR 265, Lee J observed that, for the purposes of the right to negotiate provisions in Subdivision P, “the expression ‘native title party’ appears to be treated as equivalent to ‘native title holder’ [used in the Preamble above] and is not dependent on the holding of native title being determined under the Act”.
249 As I noted near the outset of these reasons, the right to negotiate provisions appear in Subdivision P of Division 3 of Part 2 of the NTA. Division 3 is entitled “Future acts etc. and native title”. The first section of that Division, s 24AA, contains an overview of its contents. The following three subsections of that section describe in broad terms how that Division is intended to operate:
(1) This Division deals mainly with future acts, which are defined in section 233. Acts that do not affect native title are not future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title).
Validity of future acts
(2) Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.
Extinguishment/non‑extinguishment; procedural rights and compensation
(5) This Division provides that, in general, valid future acts are subject to the non‑extinguishment principle. The Division also deals with procedural rights and compensation for the acts.
(Emphasis in original)
250 The expression “future act”, as is noted in ss 24AA(1) above, is defined in s 233 of the NTA. That definition relevantly provides:
(1) Subject to this section, an act is a future act in relation to land or waters if:
(i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or
(ii) it is any other act that takes place on or after 1 January 1994; and
(b) it is not a past act; and
(c) apart from this Act, either:
(i) it validly affects native title in relation to the land or waters to any extent; or
(ii) the following apply:
(A) it is to any extent invalid; and
(B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and
(C) if it were valid to that extent, it would affect the native title.
(Emphasis in original)
251 The word “act” is central to the operation of the above definition and, indeed, the NTA as a whole. That word is defined in s 226 as follows:
Section affects meaning of act in references relating to native title
(1) This section affects the meaning of act in references to an act affecting native title and in other references in relation to native title.
Certain acts included
(2) An act includes any of the following acts:
(a) the making, amendment or repeal of any legislation;
(b) the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;
(c) the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;
(d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;
(e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;
(f) an act having any effect at common law or in equity.
Acts by any person
(3) An act may be done by the Crown in any of its capacities or by any other person.
(Emphasis in original)
252 The expression “act affecting native title” which is used in the above definition and is mentioned in s 24AA(1) above is defined in s 227 as follows:
An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
(Emphasis in original)
253 For the purposes of this matter, it is important to note the significant roles both the right to negotiate provisions in Subdivision P and the ILUA provisions in Subdivisions B, C and D of the NTA play within the “future acts” provisions of Division 3. To begin with, those roles are highlighted in the overview of Division 3 set out in s 24AA above. With respect to the ILUA provisions, s 24AA(3) states that: “A future act will be valid if the parties to certain agreements (called indigenous land use agreements—see Subdivisions B, C and D) consent to it being done …”.
In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).
255 There is a number of important parallels between these two sets of future act provisions of Division 3. First, they both use a similar expression to describe the native title entity that is involved. The ILUA provisions use the expression “native title group” (see s 24CD(2)) and the right to negotiate provisions use the expression “native title party” (see s 29(2)). As well, where that entity is acting on behalf of a native title claim group, both sets of provisions use the concept of the registered native title claimant in a similar way. For example, insofar as an ILUA area agreement is concerned, s 24CD(2) prescribes that the native title group consists of “all registered native title claimants in relation to land or waters in the area”. Similarly, as has already been noted above, s 29(2)(b) of the right to negotiate provisions identifies “any registered native title claimant … in relation to any land or waters that will be affected by the act” as a native title party. Finally, both sets of provisions provide that, where a native title claim group is involved, its members are bound by any agreement reached: with respect to ILUAs, see s 24EA and with respect to agreements or determinations made under the right to negotiate provisions, see s 41(2).
256 There are, however, at least two major differences between these two sets of provisions. First, the making of an ILUA must be authorised by those who hold, or may hold, the native title concerned, in accordance with s 251A. And, secondly, to have effect, an ILUA must be registered on the Register of Indigenous Land Use Agreements (see ss 199A to 199F). The right to negotiate provisions do not contain any equivalent provisions.
257 From this review of these two sets of provisions, it can be seen that the registered native title claimant therefore plays a similar, albeit different, role in each. In QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412;  FCA 1019 (Bygrave), I considered the role of the registered native title claimant under the ILUA provisions of the Act, particularly as they related to indigenous land use area agreements under Subdivision C. In the course of that consideration, I noted the “complex and unique cultural and legal environment” that existed with respect to the ILUA provisions of the Act (see Bygrave at –). I concluded that, in those provisions, the registered native title claimant was used to provide a statutory mechanism or device by which a large, unincorporated group of indigenous persons with fluctuating membership and undetermined native title rights and interests could enter into an ILUA (see Bygrave at ). Given the similarities outlined above, I consider the registered native title claimant has a similar role under the right to negotiate provisions of the NTA.
258 There are, however, some important differences in the way that mechanism or device operates within the right to negotiate provisions which need to be taken into account in assessing how that role differs, if at all, from that outlined above. In the first place, under the ILUA provisions, the registered native title claimant’s role is essentially passive (see Bygrave at ). Further, as I have alluded to above, under those provisions it does not have the authority to make an ILUA agreement (see Bygrave at ). By comparison, under the right to negotiate provisions, the registered native title claimant plays a far more active and fundamental role. That follows from the fact that the right to negotiate process is both reactive and relatively short-lived. That is to say, it arises in response to a specific proposal by a Government party associated with particular kinds of future acts. Furthermore, the time limits prescribed in ss 35(1)(a) and 36 require that the negotiations, or proceedings before an arbitral body failing an agreement, be undertaken expeditiously. Thus, it is implicit from those provisions that the registered native title claimant is required to actively participate in the good faith negotiations prescribed by s 31 and to do likewise in any right to negotiate proceedings that ensue before the Tribunal. It is also implicit from ss 31(1)(b) and 41(1) and (2) that the registered native title claimant has the authority to enter into an agreement on behalf of the members of the native title claim group if such an agreement is reached as a result of the aforementioned good faith negotiations.
259 These differences necessarily affect the role the registered native title claimant has under the right to negotiate provisions of the NTA. Specifically, whereas the members of the registered native title claimant are not required to act collectively or jointly or otherwise under the ILUA provisions (see Bygrave at ), the opposite is the case under the right to negotiate provisions. Under those provisions, therefore, their role is more closely aligned to that of the alter ego of the registered native title claimant, the applicant. This is a matter to which I will return later in these reasons.
260 It is convenient next to review the scheme of the right to negotiate provisions in Subdivision P. Similarly to s 24AA above with respect to Division 3, s 25 of the NTA sets out an overview of the provisions in Subdivision P. It provides:
(1) In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:
(aa) certain acts covered by section 24IC (which deals with permissible lease etc. renewals);
(a) certain conferrals of mining rights;
(b) certain compulsory acquisitions of native title rights and interests;
(c) other acts approved by the Commonwealth Minister.
(2) Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act.
(3) If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.
(4) If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.
(5) States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.
Note: The fact that action is being taken to comply with this Subdivision does not imply that action under another law, such as processing requests or applications in respect of the act, cannot be taken at the same time.
261 The particular kinds of future acts to which Subdivision P applies (see s 25(1) above) are defined in s 26. The future act in contention in this matter is that mentioned in s 25(1)(a) above. As has been noted already, it is described in more detail in s 26(1)(c)(i): the creation of a right to mine (see at  above).
262 Section 28 of the NTA reflects what is said in s 25(4) above. This provision is important because, as French J observed in Bullen v State of Western Australia (1999) 96 FCR 473;  FCA 1490 (at ), it is pivotal to the operation of the right to negotiate provisions in Subdivision P. His Honour said:
While the overall effect of the relevant subdivisions of the old and new Acts may be described, in broad terms, as amounting to a right to negotiate, no such right is expressly conferred. Rather, the relevant provisions are structured so that the validity of the proposed acts is conditioned by s 28 upon an agreement being reached with any native title parties under which the grant can be made or a determination made by the arbitral body to that effect. The reference in the transitional provisions to the “new” and “old” right to negotiate is shorthand for the provisions of subdiv P of Div 3 of Pt 2 of the new Act and subdiv B of Div 3 of Pt 2 of the old Act respectively.
263 The details of the provisions of Subdivision P have already been sufficiently outlined above such that it is unnecessary to repeat that exercise here (see at – and ). For present purposes, the scheme that is established by them has the following salient features:
(a) The Government party must obtain the agreement of the native title party to the future act being undertaken. To that end, the Government party, the grantee party and the native title party must conduct negotiations with the object of reaching such agreement.
(b) Those negotiations must be conducted in good faith with particular respect to the effect the proposed future act has on the native title party’s registered native title rights and interests.
(c) If the negotiations fail to achieve the agreement of the native title party, any negotiation party may apply to the Tribunal for a determination that the act must not, or may, proceed.
(d) In the event that such an application is made, only the Government party, the grantee party and the native title party are parties to those proceedings and therefore only those parties are entitled to appear at a hearing, to submit materials to the Tribunal, or to appeal any decision if they are dissatisfied with it.
(e) The negotiations must be conducted promptly, that is, concluded within six months, and, if an application is made for a determination under s 38, that determination must be made by the Tribunal as soon as practicable. Furthermore, the Tribunal is required to perform its functions in “a fair, just, economical, informal and prompt way” (s 109(1)).
The statutory context to s 39
264 Having examined the primary purpose of the NTA and the role, purpose and scheme of the right to negotiate provisions in Subdivision P, it is next convenient to examine three aspects of the broader statutory context in which s 39 appears, which are of some importance in this matter.
265 First, it is important to note that a notice under s 29 may relate to a single act (s 29(1)), multiple acts (s 29(8)) or to project acts (s 29(9)). The notice in this case appears to have identified two single acts under s 29(1).
266 Secondly, while the particular focus of the “good faith” element of the negotiations under s 30(1) is “the effect of the act on the registered native title rights and interests of the native title parties” (s 31(2)), the scope of those negotiations is only limited by their object and purpose within Subdivision P. This is confirmed by s 33, where the following two categories of matters are identified as matters which “may” be taken into account in the course of negotiations:
Profits, income etc.
(1) Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Existing rights, interests and use
(2) Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:
(a) existing non‑native title rights and interests in relation to the land or waters concerned;
(b) existing use of the land or waters concerned by persons other than native title parties;
(c) the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.
267 Thirdly, it is important to note how the expression “registered native title rights and interests” operates within the right to negotiate provisions in Subdivision P. First, s 31(1)(b) requires “the negotiation parties [to] negotiate in good faith with a view to obtaining the agreement of each of the native title parties to … the doing of the act”. Then, significantly, s 31(2) effectively limits this requirement to negotiate in good faith to “the effect of the act on the registered native title rights and interests of the native title parties”. Finally and equally significantly, for the purposes of Subdivision P, the expression “registered native title rights and interests” is defined in s 30(3) to mean:
(a) if the native title party is such because an entry has been made on the National Native Title Register—the native title rights and interests described in that entry; or
(b) if the native title party is such because an entry has been made on the Register of Native Title Claims—the native title rights and interests described in that entry.
269 That being so, it is pertinent to outline the process by which the entry mentioned in that subsection is created. At the same time, it is convenient to describe how the interrelated entry mentioned often above, “the registered native title claimant” is created. The Register of Native Title Claims is established under s 185(1) of the NTA. Under s 190(1), the Native Title Registrar must, as soon as practicable, include in the Register:
(a) details of any claims accepted for registration by the Registrar under section 190A or in response to notification by the NNTT under section 190E; and
(b) details of any claims that have been found to satisfy conditions equivalent to those set out in sections 190B and 190C, being claims of which the Registrar is notified by a recognised State/Territory body.
270 To gain registration, an application must first pass the following registration process. To begin with, when an application is filed in the Federal Court under s 61 of the NTA, the Registrar of the Court is required by s 63 to provide a copy of that application and any accompanying materials to the Native Title Registrar. Among a number of other things, a claimant application that is filed under s 61 must be accompanied by an affidavit which contains information about the matters set out in s 62. Relevant to the “registered native title claimant” and to the “registered native title rights and interests”, respectively, those matters include the following:
(1) A claimant application (see section 253):
(a) must be accompanied by an affidavit sworn by the applicant:
(iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and
Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.
(v) setting out details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and
(b) must contain the details specified in subsection (2); and
Details required by paragraph (1)(b)
(2) For the purposes of paragraph (1)(b), the details required are as follows:
(d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;
(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and
(ii) there exist traditional laws and customs that give rise to the claimed native title; and
(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;
(h) details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.
Note: Notices under paragraph 24MD(6B)(c) and section 29 are relevant to subsection 190A(2).
271 Also relevant to the expression “registered native title claimant” is s 61(3), which requires all applications, whether a claimant application under s 61(1), or a non-claimant application under s 61(2) to 61(4) inclusive (see the definition of the expressions “claimant application” and “non-claimant application” in s 253), to state “the name and address for service of the person who is, or persons who are, the applicant”. With respect to the expression “the applicant”, ss 61(2)(a) and (c) relevantly state:
(2) In the case of:
(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; …
the following apply:
(c) the person is, or the persons are jointly, the applicant; …
272 Furthermore, s 61(2)(d) makes it clear that none of the other members of the native title claim group is the applicant. These provisions correspond with those in s 61(1) relating to the person or persons who will be the applicant.
273 Once the Native Title Registrar receives a claimant application in accordance with the provisions of s 190A, he or she must, among other information, consider that contained in the application and any supporting documents such as those described above. The Registrar must then decide whether or not to accept the application for registration. Section 190A(6) describes the test for registration. It includes a requirement that the Registrar must be satisfied about two sets of conditions. That is, those set out in 190A(6)(b)(i) and (ii) as follows:
(6) The Registrar must accept the claim for registration if:
(b) the claim satisfies all of the conditions in:
(i) section 190B (which deals mainly with the merits of the claim); and
(ii) section 190C (which deals with procedural and other matters).
274 As can be seen from s 190A(6)(b)(i) above, s 190B prescribes the conditions dealing with the merits of the claim (s 190A(6)(b)(i) above) about which the Registrar must be satisfied. Among those matters are the following conditions which correlate to the provisions set out in ss 62(2)(d) and (e) above (s 190B(4) to (6)):
Identification of claimed native title
(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
Factual basis for claimed native title
(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:
(a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and
(b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and
(c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Prima facie case
(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).
275 As also can be seen from s 190A(6)(b)(ii) above, s 190C prescribes certain procedural conditions about which the Registrar must be satisfied. With respect to ss 61 and 62 above, it provides:
Information etc. required by sections 61 and 62
(2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.
Identity of claimed native title holders
(4) The Registrar must be satisfied that either of the following is the case:
(a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or
Note: An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed.
(b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.
Note: The word authorise is defined in section 251B.
Requirements for uncertified applications
(5) If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application:
(a) includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and
(b) briefly sets out the grounds on which the Registrar should consider that it has been met.
276 If the Registrar decides to register the claimant application as a claim, the information he or she is required to enter in the Register of Native Title Claims includes the following (s 186(1)):
Information to be included
(1) The Register must contain the following information for each claim covered by subsection 190(1):
(a) whether the application was filed in the Federal Court or lodged with a recognised State/Territory body;
(b) if the application was lodged with a recognised State/Territory body—the name of that body;
(c) the date on which the application was filed or lodged;
(ca) the date on which the claim is entered on the Register;
(d) the name and address for service of the applicant;
(e) the area of land or waters covered by the claim;
(f) a description of the persons who it is claimed hold the native title;
(g) a description of the native title rights and interests in the claim that:
(i) the Registrar or the NNTT in applying subsection 190B(6); or
(ii) a recognised State/Territory body in applying provisions equivalent to that subsection;
considered, prima facie, could be established.
Note: The person mentioned in paragraph (1)(d) is the registered native title claimant. This is the person to whom notices, for example under paragraph 29(2)(b), are to be given.
277 As indicated by the note above, the entry mentioned in s 186(1)(d) describes the registered native title claimant (see at  above). Further, the entry mentioned in s 186(1)(g) describes the registered native title rights and interests (see at  above), which brings one back to the entry described in s 30(3)(b) (see at ).
The text of s 39
278 Having identified those three aspects of the broader statutory context to s 39, it is finally convenient to turn to the text of s 39 itself, and particularly the subsection which is at the centre of Mr Burragubba’s case on this ground: s 39(1)(b). Section 39 is set out in full above (at ). First, it is worth noting how it is structured. Putting aside the catch-all discretionary provision in s 39(1)(f) (which allows the arbitral body to take account of any other matter it considers relevant), the section addresses the interests of two groups of people and the relationships between them and the particular future act in question from two different perspectives. In the first place, ss 39(1)(a) and (1)(b) are directed to the interests of the native title parties and the effect that the future act has on their interests, specifically, but not only, their registered native title rights and interests. By comparison, ss 39(1)(c) and (1)(e) are directed to the broader public interest, including those of any Aboriginal peoples and Torres Strait Islanders who live in the area concerned, and to the significance of the act itself. There is no s 39(1)(d).
279 Next, it is important to highlight the three expressions that underpin the operation of s 39. The first two of them have already been outlined in some detail above. They are “the act” – the proposed “future act” which affects native title – and the “registered native title rights and interests” as defined in s 30(3)(b). The third, and most critical, expression is: “native title party”. That expression is defined in s 253 to mean:
native title party has the meaning given by paragraphs 29(2)(a) and (b) and section 30.
(Emphasis in original)
It is to be noted that this definition is expressed in the singular.
280 I interpose that this definition is to be contrasted with the definition that appears immediately above it in s 253 as follows:
native title claim group means:
(a) in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1); or
(b) in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made.
(Emphasis in original)
281 I will return to these contrasting expressions and definitions shortly.
Conclusion on the construction of s 39(1)(b)
282 Having regard to all these aspects of the text, context and purpose of s 39(1)(b) and, in particular, to the connections between the definition of native title party above, the reference to the expression “registered native title claimant” in s 29(2)(b)(i), the definition of that expression in s 253 of the NTA, the registration process that leads to a claim being registered on the Register of Native Title Claims, the particular entries in that Register that correlate to the defined expressions “registered native title claimant” (s 186(1)(d)) and “registered native title rights and interests” (s 186(1)(g)), and the contents of those two entries with respect to the Wangan and Jagalingou application (see at  and  above, respectively), I consider the words “interests, proposals, opinions or wishes of the native title parties” in s 39(1)(b) mean and refer, in this matter, to the interests, proposals, opinions or wishes of the three persons whose names appear as the applicant in the entry on the Register of Native Title Claims relating to the Wangan and Jagalingou application, namely Adrian Burragubba, Patrick Malone and Irene White. Further, I consider the purpose and scheme of the right to negotiate provisions of the NTA requires that, where more than one person comprises the native title party/registered native title claimant, those persons must act collectively in discharging their role. My reasons for reaching these conclusions are as follows.
283 The first and most compelling has already been alluded to above. If s 39(1)(b) were intended to require the Tribunal to take into account the interests, proposals, opinions or wishes of the native title claim group, the contrasting and defined expression “native title claim group” would have been used instead of the defined expression “native title party” in the text of that section. It is clear, therefore, from the text of s 39(1)(b) that it is the interests, proposals, opinions or wishes of the native title party which the Tribunal is required to take into account.
284 Furthermore, the text of s 39(1)(b) also states with clarity what particular interests, proposals, opinions or wishes have to be taken into account. That is those related to the “management, use or control” of a closely defined area of land or waters: the area of land or waters in relation to which there are registered native title rights and interests that will be affected by the future act described in the s 29 notice. This confined and quite specific focus of s 39(1)(b) is exemplified, in this matter, by the fact that the two mining leases described in the s 29 notice cover approximately 185 square kilometres, whereas the claim area of the Wangan and Jagalingou application is 30,277.6 square kilometres.
285 That the text of s 39(1)(b) requires the Tribunal to take account of the interests, proposals, opinions or wishes of the native title party with respect to this very specific topic is consistent with the context of that section. The criteria in s 39(1) only come into effect following the failure of good faith negotiations conducted under s 31. At this post-negotiation stage, the issue for determination is whether the act specified in the s 29 notice should proceed notwithstanding the lack of agreement from the native title party. While that issue must be determined by reference to the criteria in s 39(1), it is significant for present purposes that s 39(4) provides that those criteria may be displaced by an agreement reached between the negotiation parties on any issues relevant to the arbitral body’s determination under s 38. It necessarily follows that, as a negotiation party, the native title party will have a unique insight to those issues. Furthermore, since the combined effect of ss 30(3) and 31(2) is that the registered native title rights and interests of the native title party as defined in the former section are central to the good faith negotiations that must be conducted under the latter section, the native title party is also likely to have a unique perspective about the management, use or control of the defined area of land and waters mentioned above.
286 Conversely, these textual and contextual factors explain why s 39(1)(b) is not concerned with the views of the native title claim group as a whole, nor about the effect of the particular future act on all the land or waters covered by the native title claim group’s claim, nor its effect on the native title rights and interests of the native title claim group more broadly. This distinction is important for present purposes because, broadly stated, these topics aptly summarise the matters addressed in the statements Mr Burragubba submitted to the Tribunal. Those statements are, of course, central to this ground because Mr Burragubba claims the Tribunal erred in failing to take them into account. However, this should not be taken as suggesting that the views of the native title party about certain of those matters does not arise for consideration under some of the other subsections of s 39(1). I will return to this issue when considering ground 3 below.
287 For these reasons, I do not consider Mr Burragubba’s construction of the words “interests, proposals, opinions or wishes of the native title parties” in s 39(1)(b) can be accepted.
288 I turn next to the reasons for my conclusion that, if the native title party is comprised of a number of persons, they are required to act together collectively in discharging their role. Essentially, I consider that conclusion is dictated by the need for the right to negotiate provisions of the NTA to operate effectively and expeditiously in the interests of the native title claim group which the native title party/registered native title claim group represents. In other words, it is a construction which serves to advance the protective purpose of the right to negotiate provisions of the NTA. This accords with the requirements of s 15AB of the Acts Interpretation Act 1901 (Cth). However, as well as advancing this purpose, it is also supported by a number of textual and contextual considerations in the NTA as follows.
289 First, as noted above (at ), the definition of native title party in s 253 is expressed in the singular. This suggests that, where it comprises more than one person, it is still intended to operate as a single entity, or a collection of single entities where there is more than one native title party/registered native title claimant. The latter may occur where there are overlapping claims to the area to which the s 29 notice relates, or where the future act described in the s 29 notice relates to a large area of land and there are multiple claims covering that area. This explains why the word “any” appears before the expression “registered native title claimant” in s 29(2)(b)(i). That word does not, as Mr Burragubba seems to suggest, mean or refer to the individuals comprising the registered native title claimant. For the same reason, I do not consider the word “any” in s 30(1)(a) refers to the individual persons comprising the registered native title claimant. While the use of the word “person” after the word “any” in that section does provide stronger support for Mr Burragubba’s construction, I consider the construction above is preferable because it facilitates the purpose of the right to negotiate provisions of the NTA. Furthermore, I do not consider the addition of the words “any person” in s 30(1)(a) could alter the meaning of the expression “registered native title claimant” as it is defined in s 253.
290 Secondly, both s 61(3) and the entry prescribed by s 186(1)(d) refer to an “address for service” singular. This also suggests that, where the notice under s 29 has to be given to any registered native title claimant (s 29(2)(b)(i)), all the persons comprising that entity are to be served at that one address, not individually at their separate individual addresses.
291 Thirdly, and returning to the protective purpose mentioned above, this construction is consistent with my observations above (at ) stemming from Bygrave about the native title party/registered native title claimant being used as a statutory mechanism or device to provide an individual, or a defined group of persons, to conduct the negotiations required with respect to a s 29 notice on behalf of the native title claim group, to enter into a binding agreement on behalf of that group if those negotiations are successful, or to represent its interests in any right to negotiate application that ensues if they are unsuccessful. The nature of this role requires the members of a native title party to form and maintain a united position and the relatively strict time limits requires them to act with expedition. The members of the native title party/registered native title claimant are therefore required to take an approach which involves “a communal enterprise or system, working towards the common good, as opposed to one admitting competition between individuals” (Macquarie Dictionary, 4th ed), namely a collective approach. This approach is also consistent with the communal nature of native title, the protection of which is the primary purpose of the NTA (see at – above).
292 Conversely, if each of the individuals comprising a native title party were able to act individually in discharging this role, I consider Adani and the State are correct in their contentions that the right to negotiate provisions of the NTA would become unworkable. Among many other impractical consequences, that approach would introduce the possibility of different individuals within the native title party taking different negotiating positions, thus creating disunity in the negotiations and thereby jeopardising the prospects of any agreement. Further, if a right to negotiate application were to eventuate, it could result in the individuals within the native title party holding differing views about whether an objection should be made to an expedited procedure under ss 32(1) to 32(3), or whether an attempt should be made to satisfy the arbitral body that the negotiations were not conducted in good faith under s 36(2). It could also result in differing positions being advanced to the arbitral body as to what the views of the native title party were (s 142), multiple parties representing those views at any hearing before the arbitral body (s 143) and each member of the native title party who is dissatisfied with the final determination having a right of appeal (s 164(2)). Finally, if such differing views were to be advanced, it would place the arbitral body in the impossible position where it would have to determine which individual’s views should prevail.
293 It is worth adding that it was these kinds of practical difficulties that persuaded the Tribunal to adopt the practice, more than 15 years ago, of requiring a native title party in any future act determination proceeding before it to act collectively: see Placer (Granny Smith) Pty Ltd v Western Australia (2000) 170 FLR 469 at ; and Monkey Mia Dolphin Resort v Western Australia (2001) 164 FLR 361;  NNTTA 50 at . The Tribunal member specifically adverted to this practice in his reasons in this matter when he said:
In Monkey Mia v Albert Darby Winder, the Tribunal considered various authorities regarding the nature of a claim group and said ‘the principles affirmed in these cases support its [the Tribunal’s] decision that a ‘native title party’ is the registered native title claimants acting on behalf of the claim group collectively and not each individual registered native title claimant’ at . The Tribunal referred to the finding in Placer (Granny Smith) v Wongatha People that a native title party is the registered native title claimants acting collectively and that each individual registered native title claimant is not entitled to separate representation in a right to negotiate inquiry. In this collective context, the agreed decision-making process for the claim group is important and legal representation will be taken into account. As the Tribunal explained in Monkey Mia v Albert Darby Winder (at ), the ‘Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate. Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has properly been given, based on the established decision making processes of the native title claim group’. It is the native title party, as per the features explained, that is entitled to procedural rights under the right to negotiate provisions.
294 Finally, as Adani pointed out in its submissions, and as I have already touched on above (at ), in Bygrave I held that the registered native title claimant’s role and authority under the ILUA provisions of the NTA was different from an applicant’s role and authority in pursuing a native title determination application. That was so because, in the former role, the registered native title claimant is not authorised under s 251A of the NTA to do anything (see Bygrave at –) whereas, in the latter role, it is. Of more relevance to this case, under s 251B and s 62A, an applicant is given the authority to “deal with all matters arising under [the NTA] in relation to the application”. Since the expressions “applicant” and “registered native title claimant” are distinctly defined in s 253 of the NTA (see Bygrave at ) and since the latter definition draws a clear distinction between the persons who comprise the applicant and the applicant per se (see Bygrave at –), I agree with Mr Burragubba’s contention that s 62A is not intended to apply to the persons comprising a registered native title claimant when that entity is discharging its role under either set of provisions. I should interpose that in here referring to the registered native title claimant as an “entity”, I do not intend to imply that it is a legal person (see Bygrave at  and ).
295 Nonetheless, the absence of any express provision which defines the role and authority of a registered native title claimant when discharging its role under the right to negotiate provisions does not mean that the jurisprudence (outlined immediately below) in relation to the manner in which the members of an applicant are to discharge their role does not provide some general guidance on that issue. There is, as I have already observed above (at ), a much closer alignment between the role of the applicant and the role of the registered native title claimant under the right to negotiate provisions of the NTA.
296 First, in Ankamuthi People v Queensland (2002) 121 FCR 68;  FCA 897 at , Drummond J emphasised that an applicant was authorised to discharge its role without interference by, or intervention from, any other members of the native title claim group. Secondly, in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales  FCA 981 (at ), Stone J made the following important points when her Honour said that the members of an applicant are:
… representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation [for each of them individually] is inappropriate and unacceptable.
297 Finally, in a series of cases beginning with the decision of Kiefel J in Butchulla People v Queensland (2006) 154 FCR 233;  FCA 1063 at , it was held that, where there is more than one person comprising the applicant, each of those persons is authorised by the native title claim group personally, but in discharging their role, they are to do so “in concert” together or jointly. With the exception of Weribone v Queensland (2011) 197 FCR 397;  FCA 1169 at  and  per Logan J, which was delivered at about the same time (5 days earlier), all of these decisions were reviewed by Collier J in Anderson on behalf of the Wulli Wulli People v Queensland (2011) 197 FCR 404;  FCA 1158 at –. It should be noted that the emphasis on the word “jointly” in these decisions arises from the provisions of s 61(2)(c) to the effect that the person or persons comprising the applicant are “jointly the applicant” (see at – above). In the context of the right to negotiate provisions, however, I consider the word “collectively” more aptly expresses the manner in which the members of the registered native title claimant are to discharge their role.
298 For these reasons, I consider Mr Burragubba’s construction of the words “interests, proposals, opinions or wishes of the native title parties” in s 39(1)(b) must be rejected. Instead, I consider the proper construction of those words is that set out at  above. It necessarily follows that the Tribunal made no error in its determination when it adopted essentially the same construction. It also necessarily follows that the statements of Mr Burragubba and Ms Bobongie provided to the Tribunal did not fall within the criterion in s 39(1)(b) such that the Tribunal was bound to take their contents into account in making its determination. For all these reasons, I therefore consider that Mr Burragubba has failed on ground 4.
299 Ground 3 is set out above (at ). Mr Burragubba provided the following particulars for that ground:
(a) The communications were material relevant to the criteria in ss.39(1)(a)(i)-(iii) and 39(1)(b)-(e) of the NTA.
(b) [The Tribunal] declined to consider the communications at  of the Reasons.
(c) [The Tribunal] concluded there was no material before [it] relevant to s.39(1)(a)(i)-(iii) of the NTA at , , , and  of the Reasons.
(ca) [The Tribunal] concluded there was no material before [it] relevant to s.39(1)(b)-(e) of the NTA at , , , , , and  of the Reasons.
300 On this ground, Mr Burragubba claimed that the statements that he and Ms Bobongie submitted to the Tribunal were materials that were relevant to the criteria in s 39(1), particularly s 39(1)(a)(ii) and s 39(1)(b). As such, he claimed they were relevant considerations the Tribunal was bound to take into account in making its determination under s 38. Because they were of that kind, he submitted that the Tribunal was required to undertake a proper, genuine and realistic consideration of them. Accordingly, he submitted that the Tribunal erred when it stated, on a number of occasions in its reasons, that there were no relevant materials before it from the native title party.
301 Adani and the State both submitted that the materials submitted by Mr Burragubba and Ms Bobongie were not relevant considerations because they were not materials provided by the native title party. They therefore submitted that the Tribunal made no error in not considering them.
302 In Esposito v Commonwealth of Australia (2015) 235 FCR 1;  FCAFC 160 at , the Full Court observed that a relevant consideration in this context is a matter which a decision-maker is bound to take into account, it said:
The concept of a relevant consideration in administrative law denotes a matter of which a decision-maker is bound to take account. This is a legal issue to be determined from the terms of the law under which the decision is made. This will include those matters which the law explicitly says must be taken into account but also other matters when this is discernible from the subject matter, scope and purpose of the law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.
303 For the reasons given with respect to ground 4 above, the relevant considerations under s 39(1)(b) were therefore the interests, proposals, opinions or wishes of the native title party. Conversely, the interests, proposals, opinions or wishes of the broader native title claim group were not relevant considerations.
304 It is agreed in this matter that the native title party’s legal representative informed the Tribunal that it had reached a unanimous decision not to make any submissions with respect to Adani’s right to negotiate applications (see at  above). Moreover, the legal representative for the native title party informed the Tribunal that its view was that Mr Burragubba’s statement should not be considered by the Tribunal (see at  above). In these circumstances, it is self-evident that the statements from Mr Burragubba and Ms Bobongie were not relevant considerations for the purposes of s 39(1)(b). They did not express the interests, proposals, opinions or wishes of the native title party. Indeed, as Adani points out, they were submitted on behalf of the Wangan and Jagalingou Representative Council or the Wangan and Jagalingou Representative Group. Whether those two bodies are the same or different, or even a subset of the native title claim group, does not affect the fact that they did not emanate from the native title party.
305 The Tribunal therefore made no error in not taking those statements into account under s 39(1)(b).
306 The position with respect to ss 39(1)(a)(i) to (iii) is, however, slightly different. Those criteria are not so specifically confined in their scope and subject matter as s 39(1)(b) (see at  above). While s 39(1)(a)(i) does refer to the registered native title rights and interests, the other two subsections refer more broadly to the “life, culture and traditions” of those parties (s 39(1)(a)(ii)) and the development of “the social, cultural and economic structures” of those parties (s 39(1)(a)(iii)). I therefore agree with Mr Burragubba that those expressions refer to the life, culture, traditions etc of the members of the Wangan and Jagalingou native title claim group. However, I do not consider this difference brings about any change to the construction of the expression “native title party” or its role insofar as it applies to those subsections. That is so for the following reasons.
307 First, clearly the reference to “those parties” in ss 39(1)(a)(ii) and (iii) refers back to the “native title parties” in s 39(1)(a)(i). That being so, for the reasons given above at , I consider the expression “native title party” in all those subsections means the “native title party” as defined in s 253 and not the contrasting defined entity the “native title claim group”. In this case, where the native title party is a registered native title claimant, it has the role under the right to negotiate provisions of the NTA I have outlined in detail above. With respect to s 39(1)(a), that role will involve it acting as a representative of the native title claim group to convey its (the native title party’s) views to the Tribunal about the subject matters described in that subsection. The fact that the subject matter of those subsections encapsulates the interests of the native title claim group does not, in my view, alter the standing of the native title party, nor its role. In this respect, it is also important to note that the member, or members, of the native title party and, in turn, the registered native title claimant and, in turn, the applicant, are not outliers to the native title claim group. That is so because, in order to qualify as a member of an applicant, s 61(1) makes it clear that the person or persons concerned must also be members of the native title claim group.
308 For these reasons, as with the criterion in s 39(1)(b), the relevant considerations the Tribunal was bound to take into account on the criteria under s 39(1)(a) were the views of the native title party. Since Mr Burragubba’s statements did not contain the views of the native title party, they were not relevant considerations for the purposes of those subsections. It necessarily follows that the Tribunal member did not err in not taking them into account.
309 Two other observations are appropriate before leaving this ground. First, whether or not the Tribunal member decided to take account of Mr Burragubba’s statements under s 39(1)(f) was entirely a matter for him. It is clear from the Tribunal’s Reasons that the Tribunal member gave consideration to this matter and decided not to take the statements into account under that provision. I do not understand Mr Burragubba to contend that he committed any error in this respect. Secondly, there can be little doubt from reading the Tribunal’s Reasons (see at – above) that the absence of any material from the native title party had a significant effect on the outcome of the Tribunal’s determination. However, it is important to note that this was a consequence of the unanimous and deliberate decision of the native title party not to place any materials before the Tribunal. It does not, in my view, manifest any error on the part of the Tribunal.
310 Mr Burragubba has therefore failed on ground 3.
311 Ground 2 is set out above (at ). Mr Burragubba provided the following particulars to that ground:
(a) [The Tribunal] was obliged to hold an inquiry into [Adani’s] future act determination applications (NTA s.1 39(b)) (the “Inquiry”).
(b) The persons comprising the native title applicant in [the Wangan and Jagalingou] application were a party to the Inquiry (NTA s.141(2)).
(c) When conducting the Inquiry, [the Tribunal] was not bound by technicalities, legal forms or rules of evidence (NTA s.109(3)).
(d) During the Inquiry, [the Tribunal] received communications from the Applicant on 5 February 2015 and 12 February 2015, and from Ms Linda Bobongie on 2 April 2015 (the “communications”).
(e) [The Tribunal] concluded that the communications were not relevant to the Inquiry (at - of the Reasons) and, in making that conclusion, made no inquiries about:
(i) the decision-making processes of the native title party; or
(ii) the objections of the native title claim group to the proposed grant of mining leases 70505 and 70506.
312 On this ground, Mr Burragubba contended that, under s 139 of the NTA, “the Tribunal must hold an inquiry into” an application of the kind made by Adani, namely its right to negotiate applications. He also relied upon ss 141 to 143, which limit the parties to such an application, and to s 109(3) of the NTA, which requires the Tribunal to carry out its functions in a way that “is not bound by technicalities, legal forms or rules of evidence”. Mr Burragubba contended that the Tribunal therefore had a duty to inquire into the two issues described in particular (e) above, which he described as the “decision process” issue and the “opposition” issue. He submitted those two issues were “critical facts” to the Tribunal’s determination. He claimed that was so because they represented “the views of the native title claim group … central to the criterion in s 39(1)(b)”. Mr Burragubba also claimed that the facts relevant to these issues were “easily ascertainable”.
313 Adani and the State contended that no such obligation was imposed on the Tribunal. They submitted the Tribunal had a unanimous statement from the native title party to the effect that it neither consented to, nor opposed, the Tribunal making a determination on Adani’s right to negotiate application. In those circumstances, they submitted the two issues identified by Mr Burragubba were neither relevant, nor obvious.
314 This ground can be disposed of briefly. First, while the Tribunal undoubtedly has an obligation under s 139 to conduct an inquiry into a right to negotiate application covered by s 75 of the NTA, that inquiry is not at large. In this instance, the scope of the inquiry was confined by the provisions of s 38, which prescribed the three types of determination the Tribunal could make, and s 39, which specified the considerations the Tribunal was bound to take into account. None of the criteria in s 39(1) of the NTA expressly raises either of the two issues identified by Mr Burragubba and nor do they do so implicitly.
315 Furthermore, the inquiry was confined to the three negotiation parties (s 141(2)) and only they could make submissions to the Tribunal (s 142). For the reasons set out above with respect to grounds 4 and 3, in this matter, this meant that the only persons who could validly express the opinions and wishes of the native title party about the criteria in s 39(1)(a) and (b) were the three members of the WJ Applicant acting collectively. Neither Mr Burragubba, nor anyone else, had any entitlement to place any materials before the Tribunal.
316 Since the identity and composition of the native title party was, in this instance, based on an entry in a public Register made after the Native Title Registrar had followed a closely prescribed registration process, the Tribunal was entitled to presume that party was duly authorised to represent the native title claim group in Adani’s right to negotiate applications before it. It was also entitled to assume that the native title party was following due process in discharging its role. In circumstances where the native title party’s representative stated an agreed unanimous position to the Tribunal as outlined above, there was therefore no warrant for the Tribunal to inquire into the two issues identified by Mr Burragubba. To the contrary, if it had conducted such an inquiry, I consider it would more likely have fallen into error.
317 On this aspect, it is somewhat ironic that at least one apparent purpose of Mr Burragubba’s first statement was to explain to the Tribunal why the Wangan and Jagalingou People were not participating in the Tribunal proceedings (see the final three paragraphs at  above). This was confirmed in Mr Burragubba’s subsequent email of 12 February 2015 (see at  above). It is also worth noting that, in his statements, apart from expressing his opposition to the Carmichael Mine, Mr Burragubba did not request the Tribunal to consider any particular issues, let alone the two issues identified in the particulars to this ground. To the contrary, on the question whether his first statement should be accepted, Mr Burragubba stated in his email of 12 February 2015 that his position was that “it is entirely a matter for the Tribunal to consider and respond to the statement” (see the fifth paragraph at  above; emphasis removed).
318 The Tribunal therefore made no error in not conducting an inquiry into the two issues identified by Mr Burragubba. It necessarily follows that the Tribunal did not fail to observe the rules of natural justice, or constructively fail to exercise its jurisdiction, by not inquiring into those issues and by not taking into account the materials submitted by Mr Burragubba and Ms Bobongie.
319 For these reasons, I consider that Mr Burragubba has also failed on ground 2.
320 For completeness I should note one last matter. At the outset of this proceeding the State and Adani raised an issue about Mr Burragubba’s standing to bring the proceeding. However, at the hearing, they elected not to pursue that matter as a preliminary issue because it required a determination of at least some of the substantive issues of statutory construction that had been raised, for example who was entitled to submit materials to the Tribunal: see Combet v Commonwealth (2005) 224 CLR 494;  HCA 61 at .
321 For these reasons, none of Mr Burragubba’s grounds of review has any merit. His third further amended originating application must therefore be dismissed. I will hear the parties on the question of costs.