FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 2) [2017] FCA 1086

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be given leave to file a further amended statement of claim containing the allegations set out in paragraph [24] of the reasons, with the exception of paragraph (d).

2.    The interlocutory application filed 6 June 2017 is otherwise dismissed.

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

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    The main object of this proceeding is to set aside a Certificate that was issued by Queensland South Native Title Services (QSNTS), the second respondent, in April 2016 under s 203BE(1)(b) of the Native Title Act 1993 (Cth) (the NTA) (the Certificate). The Certificate was provided in support of an application to register an Indigenous Land Use Agreement (ILUA) made between the Wangan and Jagalingou native title claim group (the W & J claim group), Adani Mining Pty Ltd (Adani), the first respondent, and the State of Queensland, the third respondent. The ILUA in question covers an area of land and waters in Central Queensland where Adani proposes to develop a large coal mine to be known as “the Carmichael mine”. This area falls within the claim area of the Wangan and Jagalingou native title determination application (the W & J application). That application was filed on behalf of the W & J claim group by its then authorised applicant (the W & J Applicant) on 27 May 2004.

2    The applicants in this proceeding, Ms Delia Kemppi and four others (who I will together refer to hereafter as “Ms Kemppi”), comprise five of the 12 members of the current W & J Applicant. In this interlocutory application, they have applied to further amend their statement of claim (FASC). The proposed amendments are in three parts: to add particulars to expand the scope of the existing unreasonableness case in two respects; and to add a new ground of review to the effect that QSNTS failed to have regard to certain relevant considerations when it issued the Certificate. Before setting out the details of the proposed amendments, it is convenient to provide some further details of the factual and legislative context to this matter.

Factual and legislative context

3    The Certificate mentioned above was issued by QSNTS in its capacity as the Native Title Service Provider holding recognition under s 203FE of the NTA for the Southern and Western Queensland Region. That region includes the claim area for the W & J application. As is mentioned above, it was issued under s 203BE(1)(b) of the NTA. Importantly, any certificate issued under that subsection must also comply with s 203BE(5). Those two subsections relevantly provide:

(1)    The certification functions of a representative body are:

(a)    …

(b)    to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

…

(5)    A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

(b)    all the persons so identified have authorised the making of the agreement.

Note:    Section 251A deals with authority to make the application.

4    Under these provisions, a representative body must therefore hold two opinions before it can validly issue a certificate under s 203BE. The first, which I will refer to as “the identification opinion”, concerns the reasonable efforts that have been made to identify those persons “who hold or may hold native title in relation to” the area covered by the ILUA in question. The second, which I will refer to as “the authorisation opinion”, concerns the question whether all the persons identified under the identification opinion “have authorised the making of the agreement”.

5    At this point, it is convenient to note two matters relating to these provisions. First, they do not necessarily require the representative body itself to make the “reasonable efforts” required by (a) above, or to arrange for the authorisation of the agreement under (b) above. Nonetheless, as the reasons given for issuing the Certificate reveal (see [8] below), in this matter, QSNTS chose to take an active role with respect to both those matters. Secondly, with respect to the opinions the representative body is required to hold, it has been held that those opinions must be formed reasonably (Foley v Padley (1984) 154 CLR 349 at 353; R v Connell; ex parte the Hetton Bellbird Collieries Limited (1944) 69 CLR 407 at 432; Corporation for the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 150; Minister for Immigration v Li (2013) 249 CLR 332 at 370). Further, it has been held that an assessment of the reasonableness of such an opinion must generally be made upon the material before the decision-maker (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 150; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at 371 [91]). However, there is an exception to this rule where the decision-maker failed to have regard to material that was readily available and centrally relevant to the opinions he/she formed (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170-171 per Wilcox J; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 434 per French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ). I will return to this aspect later in these reasons.

6    As the note to s 203BE(5) above indicates, the authorisation opinion I have referred to above is directed to the provisions of s 251A of the NTA. As at April 2016, that section provided:

For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a)    where there is a process of decision‑making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or

(b)    where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision‑making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

7    With respect to the two opinions referred to above, the critical part of the Certificate stated:

I, Kevin James Smith, Chief Executive Officer of QSNTS, am authorised by QSNTS to perform its function of certification, and so in accordance with s203BE(5)(a) and (b) with respect to the ILUA, certify that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified; and

(b)    all the persons so identified have authorised the making of the Agreement.

8    As required by s 203BE(6)(b) of the NTA, the Certificate also “briefly set out [QSNTS’] reasons for being of that opinion”. The reasons Mr Smith gave for his opinions were expressed in two separate sections – one addressing the above described identification opinion and the other addressing the above described authorisation opinion – as follows:

1.    All reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the land or waters in the area covered by the Agreement have been identified.

(a)    QSNTS has undertaken extensive anthropological and genealogical research in relation to the W&J Native Title Claim as well as the region subject to the agreement.

(b)    QSNTS maintains a database of details concerning the identification of W&J People and is continuously engaging in a process of checking and updating the database.

(c)    The authorisation of the ILUA was the subject of widespread public advertising in seven newspapers:

I.    The Courier Mail – 16 March 2016;

II.    Fraser Coast Chronicle – 18 March 2016;

III.    The Morning Bulletin – 18 March 2016;

IV.    The Townsville Bulletin – 18 March 2016;

V.    South Burnett Times – 22 March 2016;

VI.    The Koori Mail – 23 March 2016;

VII.    Central Queensland News – 23 March 2016.

(d)    Further notification, including a cover letter, a copy of the public notice and an information booklet regarding the ILUA, was sent to the mailing address of all those members of the W&J People on the database maintained by QSNTS.

2.    All the persons so identified have authorised the making of the ILUA.

The authorisation process for the making of the ILUA that has taken place can be described as an agreed and adopted decision-making process of the W&J People in authorising the ILUA. It involved:

(a)    The legal representative for the W&J Applicant in relation to this agreement consulted with QSNTS on 19 February 2016 and 11 April 2016;

(b)    Engagement between the Applicant to the W&J Native Title Claim and Adani at several properly notified and convened meetings of the Applicant, at which on each occasion a quorum of the Applicant were present, and at which decisions were made regarding the proposed authorisation of the ILUA, including approval of the final terms of the ILUA, the ancillary agreement to the ILUA, the meeting rules of conduct and proposed resolutions to be considered at the Authorisation Meeting;

(c)    The members of the W&J People, and any other persons who hold or may hold native [title] in the ILUA Area, being called to attend a meeting in Maryborough on Saturday, 16 April 2016 (Authorisation Meeting), which was independently facilitated;

(d)    Notification of the Authorisation Meeting having been given by way of widespread public advertising in seven newspapers and by way of individual mail-outs sent to all those persons on the QSNTS database of W&J People;

(e)    The Authorisation Meeting was held in Maryborough on Saturday 16 April 2016;

(f)    ARCHAEO Cultural Heritage Services, the Applicant’s usual service provider, being retained to assist the W&J People to register their interest in attending the Authorisation Meeting and providing reasonable travel assistance to do so;

(g)    QSNTS registering meeting attendees on the day of the Authorisation Meeting, with the assistance of their in-house anthropological team, ensuring that only those adult W&J People or other adult persons who hold or claim to hold native title in the ILUA Area being allowed entry to the Authorisation Meeting, and being entitled to vote on motions;

(h)    The registration and attendance of 340 adult members of the W&J People, comprising descendants of 12 of the 14 apical ancestors (who have known descendants) and one adult person who claimed to hold native title in relation to the ILUA Area, at the Authorisation Meeting;

(i)    The agenda, the meeting rules of conduct, clearly worded draft resolutions, a summary of the legal advice provided by HWL Ebsworth Lawyers and the information booklet regarding the ILUA being handed out to meeting attendees and displayed at the relevant times on large screens at the Authorisation Meeting;

(j)    General discussion of the issues notified to be the subject of [the] Authorisation Meeting at the Authorisation Meeting, including question and answer sessions;

(k)    Legal advice on the issues notified to be the subject of [the] Authorisation Meeting being provided by HWL Ebsworth Lawyers;

(l)    All resolutions being displayed and read out by the independent facilitator before voting, including meeting attendees being afforded the opportunity to speak for or against the motions;

(m)    The W&J People present at the meeting, and where appropriate, the other persons who were present and who hold or claim to hold native title in the ILUA Area, then endorsing the resolutions, by way of a decision-making process resolved and agreed to at the Authorisation Meeting (by show of hands);

(n)    I am satisfied that through the holding of the Authorisation Meeting the W&J People authorised the making of the ILUA in accordance with the decision making process that was agreed to and adopted by the W&J People for that purpose.

(Emphasis in original)

9    As these reasons record, the ILUA was authorised at a meeting of the “W&J People” held at Maryborough on Saturday, 16 April 2016 at which 340 members of the W & J People were said to have been present.

The declarations sought

10    Ms Kemppi commenced the present proceeding in April 2017. In her originating application, she sought three declarations in the following terms:

1.    A declaration that the agreement, referred to in the accompanying statement of claim at [15] as the “Project Agreement,” which was the subject of an application by the First Respondent to the Fourth Respondent for registration on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth) is not an “Indigenous land use agreement” within the meaning of s.24CA of the Native Title Act 1993 (Cth).

2.    A declaration that the certificate issued on behalf of the Second Respondent on 26 April 2016 under s.203BE(1)(b) of the Native Title Act 1993 (Cth), certifying the application by the First Respondent for the registration of the Project Agreement on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth), is void and of no effect.

3.    A declaration that the Fourth Respondent has no jurisdiction to consider the First Respondent’s application made on 27 April 2016 for the Project Agreement to be registered on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth).

11    As a result of the passage through the Federal Parliament in June 2017 of a set of amendments to the NTA (Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth)), Ms Kemppi does not now seek to pursue the declaration in paragraph 1 above. The corresponding parts of the FASC have therefore been deleted.

The unreasonableness issue as pleaded

12    The relevant declaration for the purposes of this interlocutory application is that in [2] above. It concerns the unreasonableness case Ms Kemppi has pleaded in her FASC. That case is pleaded in the following form. Commencing at [32] of the FASC, Ms Kemppi pleads that, on 20 April 2016, particular members of the W & J Applicant wrote to QSNTS and asked it to issue the Certificate. Then, at [33] of the FASC, Ms Kemppi alleges that Mr Smith issued the Certificate and, at [34] of the FASC, she alleges that the Certificate certified that QSNTS was of the opinion that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the [ILUA] had been identified; and

(b)    all the persons so identified had authorised the making of the [ILUA].

13    At [35] of the FASC, Ms Kemppi then makes the critical allegations in her unreasonableness case in the following terms:

The decision of the Second Respondent to issue the 203BE Certificate was legally unreasonable in that no reasonable representative body, aware of the circumstances of the [ILUA], could hold the opinion described in the 203BE Certificate.

14    The particulars of this unreasonableness allegation are divided into two parts. Each part corresponds to one of the two opinions contained in the Certificate (see at [7] above). Those two opinions also correspond to the same opinions as pleaded at [34] of the FASC (see at [12] above). Accordingly, the first part of the particulars addresses the requirements of s 203BE(5)(a) above (the identification opinion) and the second part addresses the requirements of s 203BE(5)(b) above (the authorisation opinion). Those particulars are as follows:

[Re s 203BE(5)(a)]

(a)    the authorisation meeting for the [ILUA] was conducted on 16 April 2016 at the direction of particular Applicant Members, being Patrick Malone, Irene White, Priscilla Gyemore, Craig Dallen, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley;

(b)    the anthropological and genealogical research of the Second Respondent, referred to in paragraph 1(a) of its reasons in the 203BE Certificate, was not made available to those conducting the 16 April authorisation for the [ILUA];

(c)    approximately 60% of those attending the 16 April authorisation [meeting] who asserted Wangan and Jagalingou identity were not recorded as having attended a previous meeting of the native title claim group for the Native Title Claim;

(d)    the meeting procedures adopted for the 16 April authorisation meeting did not test the assertion of Wangan and Jagalingou identity by determining whether a person identified as, and was accepted by, Wangan and Jagalingou People (in addition to mere descent from an identified apical Wangan and Jagalingou ancestor);

(e)    no resolution was made at the 16 April authorisation meeting confirming that the assertions of persons present about their Wangan and Jagalingou identity were accepted by the meeting, and so persons wishing to challenge those assertions were denied the opportunity to do so;

(f)    no resolution was made at the 16 April authorisation meeting confirming that the persons present who asserted Wangan and Jagalingou identity were members of the native title claim group for the Native Title Claim;

(e)    in the circumstances, a test of identification and acceptance of a person asserting Wangan and Jagalingou identity was a “reasonable effort” within the meaning of s.203BE(5)(a) of the Native Title Act 1993 (Cth);

(f)    the 16 April meeting was attended by a person who was not a member of the native title claim group for the Native Title Claim (the Non-group Claimant) who claimed to hold native title rights and interests in the area to which the [ILUA] applies (ILUA Area) who did not identify as a Wangan and Jagalingou person;

(g)    no step was taken by the Second Respondent to identify whether the Non-group Claimant was a person who holds or may hold native title within the meaning of s.203BE(5)(a) of the Native Title Act 1993 (Cth);

(h)    if the claim of the Non-group Claimant to hold native title in the ILUA Area was reasonable, the attendance of only one such person making such a claim would put a reasonable representative body on notice that some reasonable efforts to identify persons who hold or may hold native title in the ILUA Area had not been taken;

(i)    in the circumstances, assessing the claim of the Non-group claimant to hold native title in the ILUA Area against the existing anthropological and genealogical research in the possession of the Second Respondent was a “reasonable effort” within the meaning of s.203BE(5)(a) of the Native Title Act 1993 (Cth).

[Re s 203BE(5)(b)]

(a)    the authorisation resolution of the 16 April authorisation meeting was conditional, in that it required all of the Applicant Members to sign the [ILUA];

(b)    without the signature of all of the Applicant Members, a condition of the authorisation was not satisfied;

(c)    in the circumstances, the Second Respondent knew or ought to have known that the condition of authorisation requiring all Applicant Members to sign the [ILUA] was not satisfied and therefore the persons identified as being those who hold or may hold native title had not “authorised the making” of the [ILUA] in the form it was presented in the 20 April 2016 letter of request from the particular Applicant Members.

(Error in the numbering in original)

15    From these particulars, it can be seen that, with respect to the opinion required by s 203BE(5)(a), Ms Kemppi relies upon two steps that were allegedly not taken at the meeting held on 16 April 2016. The failure to take these steps is said to evidence a lack of “reasonable effort” on the part of QSNTS. They are:

(e) [second occurring]    in the circumstances, a test of identification and acceptance of a person asserting Wangan and Jagalingou identity was a “reasonable effort” within the meaning of s.203BE(5)(a) of the Native Title Act 1993 (Cth); [and]

(i)    in the circumstances, assessing the claim of the Non-group claimant to hold native title in the ILUA Area against the existing anthropological and genealogical research in the possession of the Second Respondent was a “reasonable effort” within the meaning of s.203BE(5)(a) of the Native Title Act 1993 (Cth).

16    The “circumstances” mentioned in each of these particulars appear to refer back to the allegations made in the immediately preceding particulars and, ultimately, to the statement “no reasonable body, aware of the circumstances” in [35] of the FASC. That is, with respect to (e) above, to the circumstances particularised in (a) to (f) (first occurring) and, with respect to (i) above, to the circumstances particularised in (f) (second occurring) to (h). In summary, those particulars describe the following circumstances:

(a)    the manner in which the meeting on 16 April 2016 was conducted: particulars (a), (c) to (f) (first and second recurring) and (g) to (h); and

(b)    the anthropological and genealogical research that was in the possession of QSNTS at the time: particulars (b) and (i).

17    Significantly, despite the statements made in QSNTS’ reasons (see at [8] above), Ms Kemppi does not allege that QSNTS had any role in convening or conducting the meeting on 16 April 2016, and nor does she allege that any of its officers or employees were present at that meeting. Indeed, the contrary is implied because particular (a) alleges that the meeting was conducted at the direction of particular members of the W & J applicant and particular (b) alleges that QSNTS’ anthropological and genealogical research was not made available to those conducting the meeting.

18    Turning to the circumstances relied on to support the allegation in particular (e) above, it can be seen they concern an unnamed group of persons who allegedly attended the 16 April 2016 meeting and “asserted Wangan and Jagalingou identity”. The gist of that allegation appears to be that the failure to test the assertions made by those unnamed persons about that issue evidenced a lack of “reasonable efforts” to identify “all persons who hold or may hold native title in relation to land and waters in the area covered by” the ILUA as required by s 203BE(5)(a). Who it was that failed to test those assertions is not stated in the FASC. Nor, more significantly, is it alleged that QSNTS was aware of that alleged failure.

19    As to the circumstances relied upon to support the allegation in particular (i) above, it can be seen that they concern only one unnamed person, described in the particulars as “the Non-group Claimant”. That person is said to have attended the 16 April 2016 meeting and claimed “to hold native title rights and interests in the ILUA Area”. Again, the gist of this allegation appears to be directed to the failure to test that claim by reference to the anthropological and genealogical research in the possession of QSNTS. It, too, is said to evidence a lack of “reasonable efforts” to identify all the persons within the terms of s 203BE(5)(a) above. Again, who it was that allegedly failed to test that claim is not stated in the FASC and nor is it alleged that QSNTS was aware of that alleged failure.

20    Curiously, there is no pleading in the FASC as to what QSNTS was aware of, or what materials were before it, when it formed its opinions and made its decision to issue the Certificate. The request to issue the Certificate is pleaded, but what, if any, materials accompanied that request is not. QSNTS’ reasons for issuing the Certificate are certainly mentioned (in particular (b)), as are the existing anthropological and genealogical materials in its possession, but the FASC does not identify what materials were before QSNTS at the critical time it formed its opinions and issued the Certificate. As I have already observed above, ordinarily, those materials are central to a judicial review proceeding of this kind (see the authorities at [5] above and Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [442] per Weinberg J and, more recently, Mentink v Minister for Justice [2016] FCA 432 at [68]–[70] per Rangiah J.

21    Finally, it should be noted that, despite these fundamental shortcomings in Ms Kemppi’s FASC, the respondents have filed their defences and the pleadings have therefore closed. Furthermore, no attempt has been made to date to strike out the FASC, in whole or in part, nor to require Ms Kemppi to provide further and better particulars of any of the allegations made in it. The particulars that have been proffered by the first two parts of Ms Kemppi’s proposed amendments were, therefore, essentially unsolicited.

The three parts of the proposed amendments

22    I turn now to the amendments proposed by this interlocutory application. As was noted at the outset of these reasons, they are in three parts. The first part of the proposed amendments seeks to add the following particulars to the particulars relating to s 203BE(5)(a) above:

(ea)    the traditional law and custom of the Wangan and Jagalingou includes the requirement that, to qualify as a group member, a person must:

(i)    be descended from an identified apical Wangan and Jagalingou ancestor;

(ii)    identify as a Wangan and Jagalingou person; and

(iii)    be accepted by Wangan and Jagalingou as a Wangan and Jagalingou person;

(eb)    the 16 April authorisation [meeting] was attended by a number of persons, unknown to the Applicants, who asserted Wangan and Jagalingou identity but were not entitled to that status;

(ec)    at the 16 April authorisation [meeting], a number of persons, unknown to the Applicants, who:

(i)    have never identified as a Wangan and Jagalingou person; or

(ii)    have not been accepted as a Wangan and Jagalingou person by Wangan and Jagalingou people; and

were not entitled to be considered members of the native title claim group for the Native Title Claim but voted and participated in deliberations as if they were Wangan and Jagalingou persons;

23    The second part seeks to add the following particulars to the particulars relating to s 203BE(5)(b) above:

(d)    at the authorisation meeting for the [ILUA] conducted on 16 April 2016, or at any other time before that. the native title claim group for the Native Title Claim who attended the authorisation meeting for the [ILUA] conducted on 16 April 2016 did not receive independent expert advice about:

(i)    the utility of the benefits package offered by the First Respondent in consideration of the commitments to be made in the [ILUA];

(ii)    the financial viability of the Mining Project;

(e)    the benefits package offered by the First Respondent in consideration of the commitments to be made in the [ILUA] was significantly less favourable than comparable benefits given to native title holders and claimants in connection with native title agreements for mining projects elsewhere in Australia;

(f)    the financial viability of the Mining Project was. at the time the authorisation meeting for the [ILUA] conducted on 16 April 2016, and remains uncertain and this may impact on the amount of benefits payable under the [ILUA] or related benefits package;

(g)    when it issued the 203BE certificate. the Second Respondent knew or ought to have known the matters in (d) to (f);

24    Finally, the third part seeks to add a new ground of review in the FASC ([35A]) as follows:

When it made the decision to issue the 203BE Certificate, the Second Respondent failed to consider certain relevant considerations being:

(a)    the laws and customs of Wangan and Jagalingou concerning the criteria by which a person is entitled to Wangan and Jagalingou membership;

(b)    the extent to which the authorisation meeting for the [ILUA] conducted on 16 April 2016 was attended by persons who were not Wangan and Jagalingou;

(c)    the extent to which persons who asserted Wangan and Jagalingou identity but were not entitled to that status voted and participated in deliberations as if they were Wangan and Jagalingou persons at the authorisation meeting for the [ILUA] conducted on 16 April 2016 was attended by persons who were not Wangan and Jagalingou;

(d)    that those in attendance at the authorisation meeting for the Project Agreement conducted on 16 April 2016 were not provided with an unbiased and independent opinion of:

(i)    the utility of the benefits package offered by the First Respondent in consideration of the commitments to be made in the [ILUA];

(ii)    the financial viability of the Mining Project.

PARTICULARS FOR [35A]

Save to repeat the particulars beneath [35] above, the Applicants are unable to provide further particulars until the Respondents have given discovery.

The contentions

25    Initially, Ms Kemppi submitted that, in the absence of prejudice to another party or material delay, a party to a proceeding is entitled to amend its pleadings to ventilate the real issues in dispute in that proceeding. Since, according to Ms Kemppi, the extension of the grounds of review affected by her proposed amendments caused no prejudice to any of the respondent parties, other than that which can be addressed by an order for costs, she submitted that the proposed amendments should be allowed.

26    However, in its contentions, Adani did not oppose the proposed amendments on the ground that they caused it prejudice. Rather, it claimed that the amendments were futile in that they did not disclose any basis upon which the Certificate could be set aside. In making these claims, Adani acknowledged that it had to meet a high threshold specifically: that it had to show that the proposed amendments were obviously futile in the sense that they did not disclose a reasonable cause of action (Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26 at 36 per Lindgren J (with whom Lockhart and Tamberlin JJ agreed); or that the amendments would be liable to be struck out (QS Holdings Sarl v Paul’s Retail Pty Ltd (2011) 92 IPR 460; [2011] FCA 853 at [107] per Kenny J); or that the issue sought to be raised was unlikely to succeed (Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; [2009] FCA 320 at [22] per Kenny J). Adani submitted that it had met this high threshold. It submitted that it was futile to make the proposed amendments because none of them raised matters that were relevant to the claim Ms Kemppi had pleaded in her FASC. In reply, Ms Kemppi denied these contentions and submitted that the amendments were pertinent to the case pleaded in her FASC.

Some relevant principles

27    Adani has, in my view, identified above the relatively strict test it needs to meet to defeat Ms Kemppi’s application. Further, and relatedly, because this application is analogous to an application seeking to strike out a pleading, the principles applicable to such an application will apply. Those principles were conveniently summarised by a Full Court in Young Investments Group Pty Ltd (ACN 078 020 309) v Mann (2012) 293 ALR 537; [2012] FCAFC 107 as follows (at [6]):

… In an application to strike out a pleading, all of the facts alleged in the relevant pleading are to be accepted as true, and it is to be taken for granted that, on all other points, the pleading is unassailable. Provided that a pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action and apprising the other party of the case that it has to meet at trial, the pleading should be allowed to stand and the proceeding should be allowed to go to trial. Further, a court of first instance should be careful not to risk stifling the development of the law by summarily dismissing a claim where there is a reasonable possibility that, as the law develops, a cause of action may be held to lie. The power to dismiss summarily is to be used only in cases that are unarguable and for which there is no reasonable prospect of success.

28    Accordingly, I will, among other things, approach this application on the footing that Ms Kemppi will be able to prove the facts and matters alleged in the proposed amendments at the trial of this proceeding. The question then is whether the proposed amendments plead an arguable cause of action or, more specifically, at least with respect to the first two parts of the proposed amendments, whether they provide further particulars of any arguable cause of action that has already been pleaded in Ms Kemppi’s FASC. Having mentioned those particulars, it is appropriate to note the purposes they are intended to serve. They include:

(a)    to limit the generality of the pleadings and to restrict the scope of evidence: Dye v Commonwealth Securities Limited [2010] FCA 720; at [34];

(b)    to inform the opposing party of the case it has to meet and to assist to define and limit the issues in the proceeding: Conway v Mercedes-Benz Australia/Pacific Pty Ltd ACN 004 411 410 [2010] FCA 72; at [7]; and

(c)    to limit discovery by defining the questions to be tried and as to which discovery is required: Yorkshire Provident Life Assurance Company v Gilbert [1895] 2 QB 148.

On the other hand, it is not the function of particulars to fill in gaps in the pleadings, for example, to plead material facts that are not pleaded in the main body of the pleading: Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Limited [2002] FCA 1568 (Automotive Repairers) at [15] and Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd ACN 093 837 337 (No 5) [2010] FCA 313 at [16]. In this context, “material facts” are those facts that are relied on to establish all the essential elements of a cause of action (Automotive Repairers at [13]). In this matter, they include matters such as the materials before QSNTS when it formed its opinions (see at [20] above). With these principles in mind, I turn to consider the three parts of the proposed amendments in the order stated above.

Consideration

The first part of the proposed amendments

29    In the first part of her proposed amendments, Ms Kemppi seeks to add three paragraphs (paragraphs (ea) to (ec): see at [22] above) to the existing particulars in [35] of the FASC concerning the identification opinion required by s 203BE(5)(a). For the reasons that follow, I do not consider those proposed amendments should be allowed. First, paragraph (ea) describes certain requirements to qualify as a “group member” under the traditional laws and customs of the Wangan & Jagalingou. While it is not expressly stated, this appears to refer to the W & J claim group. If that assumption is correct, no attempt has been made in this particular to articulate how the qualifications for membership of that group are connected with the two central allegations of unreasonableness particularised in [35] of the FASC (see at [13] above). Specifically, no facts have been pleaded which provide a connection between those membership qualifications and the alleged failure to test the assertions of “Wangan and Jagalingou identity” made by the unnamed persons who attended the 16 April 2016 meeting and made such assertions, nor the alleged failure to assess the claim of the unnamed sole “Non-group Claimant” to hold native title in the ILUA area by reference to the existing research on that subject in the possession of QSNTS. More importantly, consistent with the dearth of allegations on this topic in the FASC, there is nothing in that document, nor in this particular, to suggest that QSNTS was aware of those qualifications, or that they played any part in the formation of its opinion for the purposes of s 203BE(5)(a), for example that it had regard to them, or should have, as a part of the materials before it when it formed that opinion.

30    While they deal with a different topic, paragraphs (eb) and (ec) are similarly deficient. They both directly relate to the first group of persons mentioned above, namely those who attended the 16 April 2016 meeting and asserted “Wangan and Jagalingou identity”. Apart from alleging that those persons were unknown to “the applicants” – which I infer is a reference to Ms Kemppi and her fellow applicants, rather than all the members of the W & J Applicant – those paragraphs do not add anything to the existing pleading about the assertions made by those persons and the alleged failure to test those assertions at the 16 April 2016 meeting. Furthermore, and more importantly, as with particular (ea) above, there is nothing in those particulars to suggest that QSNTS was aware of those matters or had regard to them as a part of the materials before it when it formed its opinion for the purposes of s 203BE(5)(a).

31    It is worth adding that, since QSNTS’ knowledge of the matters alleged in both these paragraphs and in paragraph (ea) above is a material fact, that knowledge is a matter that should be pleaded in the body of Ms Kemppi’s FASC (see my observations at [28] above). It is not the function of particulars to plead such material facts.

32    For these reasons, I consider it would be futile to allow Ms Kemppi to make the first part of her proposed amendments. That is so because the three paragraphs comprising this part of her amendments variously offend the pleadings rules I have mentioned above and are therefore liable to be struck out.

The second part of the proposed amendments

33    The second part of Ms Kemppi’s proposed amendments seeks to add four paragraphs of particulars to the existing particulars in [35] of the FASC (set out at [23] above) relating to the authorisation opinion required under s 203BE(5)(b). The import of the allegations in these four paragraphs is that those present at the 16 April 2016 meeting did not receive “independent expert advice” about the utility of the benefits package offered by Adani and the financial viability of the Carmichael mine project. While it is not clear what is meant by “independent” expert advice (paragraph (d)), it is at least implicit that the allegation is that, if this advice had been provided to the members of the native title claim group (the W & J claim group) present at the 16 April 2016 meeting, they would have become aware of the alleged deficiencies in the benefits package being offered by Adani and the tenuous viability of its Carmichael mine project and, possessed of that knowledge, they would have decided not to authorise the making of the ILUA.

34    It is convenient to begin with the final paragraph of these particulars, paragraph (g), because without it the allegations in the other three particulars serve no purpose and are therefore liable to be struck out. In contrast to the first part of Ms Kemppi’s proposed amendments, or indeed to the form of her existing FASC, paragraph (g) alleges that, at the time it issued the Certificate, QSNTS knew, or ought to have known, of the matters in proposed particulars (d), (e) and (f). The two reasons why this allegation is objectionable have already been mentioned above. First, QSNTS’ knowledge of those matters is a material fact and, as such, it should not be pleaded in particulars. Secondly, even if the less strict view of this principle were to be taken and the FASC were to be read as a whole (see Automotive Repairers at [17]), this particular is deficient in another respect. That is that, since it concerns QSNTS’ knowledge, it must comply with r 16.43 of the Federal Court Rules 2011 (Cth) (the Rules). That rule requires a party who pleads a “condition of mind” such as “knowledge” (see r 16.43(3)) to provide particulars “of the facts on which the party relies” (see r 16.43(2)). Furthermore, if a party pleads that another party “ought to have known something”, that party must give particulars of “the facts and circumstances from which the other party ought to have acquired the knowledge” (see r 16.43(2)).

35    Aside from these deficiencies with respect to paragraph (g), there is, in my view, a more fundamental defect with the whole of this second part of Ms Kemppi’s proposed amendments. That is that it seeks to challenge the merits of the authorisation decision made at the meeting on 16 April 2016. In the first place, since the issue of a certificate under s 203BE(5) is conditional on the representative body holding the opinions about the two matters identified above, this is one of that category of cases where the merits of its opinion about those matters are not examinable on judicial review (Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303). Additionally, there is no indication from the text, context or purpose of the provisions of either ss 203BE or 251A that a native title representative body which is certifying an application to register an ILUA is required to express an opinion about the merits of the ILUA that has been authorised. That is a matter that is left entirely to the persons who hold, or may hold, native title in the area concerned. Consistent with this conclusion, the focus of the authorisation opinion required by s 203BE(5)(b) is, in my view, entirely procedural in nature, in that it is solely directed to whether the authorisation process prescribed by s 251A of the NTA has been duly followed.

36    That is so because, by its terms, the latter section (see at [6] above) prescribes two, and only two, basic requirements for the valid authorisation of an ILUA and both of them are procedural in nature. First, the persons who “hold, or may hold”, native title in the area covered by the ILUA must either comply with their traditional decision-making process (under (a)), or, if no such traditional process exists, they must agree to, and adopt, an alternative decision-making process (under (b)). Secondly, those persons must then “authorise the making of the” ILUA in accordance with whichever of those two decision-making processes applies. Both of these requirements are directed to ensuring that, in a case such as the present, first, that “all” the persons who may hold native title in the area covered by the ILUA are involved in the process to authorise the making of the ILUA. And, secondly, that those persons authorise the ILUA in accordance with either their traditional decision-making process or, if no such traditional process exists, an alternative process agreed to, and adopted by them. Hence, these are the two procedural requirements expressed in the text of s 251A to which the authorisation opinion under s 203BE(5)(b) is directed.

37    It follows that any views Mr Smith held, or ought to have held, about the desirability of the 16 April 2016 meeting receiving “independent” expert advice about the utility of the benefits package offered by Adani, or the financial viability of the Carmichael mine project, or about the effect of that advice were immaterial to the authorisation opinion he was required to hold under s 203BE(5)(b). For these reasons, I consider it would be futile to allow Ms Kemppi to make the second part of her proposed amendments because they do not disclose a reasonably arguable ground of challenge to the authorisation opinion expressed in the Certificate.

The third part of the proposed amendments

38    The third part of Ms Kemppi’s proposed amendments seeks to identify four relevant considerations (set out at [24] above) that Mr Smith failed to consider when he formed the opinions required by ss 203BE(5)(a) and (b) and issued the Certificate. Those four considerations can be summarised as follows:

(a)    the criteria by which a person is entitled to “Wangan and Jagalingou membership”;

(b)    the extent to which persons who attended the 16 April 2016 meeting were not “Wangan and Jagalingou”;

(c)    the extent to which persons who wrongly asserted “Wangan and Jagalingou identity” voted and participated in the deliberations at the 16 April 2016 meeting; and

(d)    the failure to provide an “unbiased and independent opinion” about the benefits package offered by Adani under the ILUA and the financial viability of the Carmichael mine project.

39    It is important to emphasise that, in this third part of Ms Kemppi’s proposed amendments, reasonableness, or “reasonable efforts” as required by s 203BE(5)(a), is not the issue. Instead, the issue is the relevant considerations QSNTS was statutorily bound to have regard to when it formed its opinions under s 203BE(5) and issued the Certificate. Despite the limitation on judicial review in this matter mentioned above (at [35]) and despite the fact it has been said to be “very difficult” to demonstrate, a person may still obtain relief in the present category of cases if it can be shown that a decision-maker has “… failed to consider matters that it was required to consider” (Buck v Bavone (1976) 135 CLR 110 at 118–119 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137] per Gummow J. See also the discussion in Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 1469 at [32]–[34] per Logan J. It is therefore necessary to delineate what a relevant consideration is.

40    In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (at 39–40), Mason J described what a relevant consideration was in the following terms:

(a)    The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …

(b)    What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors –– and in this context I use this expression to refer to the factors which the decision-maker is bound to consider –– are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act …

(Citations omitted; emphasis in original)

41    To similar effect, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf), McHugh, Gummow and Hayne JJ said (at [73]–[74]):

73    … The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider …

74    This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

(Footnotes omitted)

See also Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160 at [123] per Allsop CJ, Flick and Perram JJ.

42    On the distinction highlighted in the concluding sentences of Yusuf (at [41] above), between applying the law and fact finding, a Full Court of this Court observed in Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122; [2003] FCAFC 214 at [32] that:

… The factors that a decision-maker is bound to consider in making a decision are determined by construction of the statute conferring the power to make that decision, not by the pieces of “evidence” submitted to the decision-maker by a person affected by the decision ...

43    The identification of a relevant consideration therefore primarily involves an exercise in statutory construction, the pertinent considerations of which are the statutory text, its statutory context and the purpose of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, Commissioner of Taxation v Consolidated Media Holdings (ACN 009 071 167) (2012) 250 CLR 503; [2012] HCA 55, Certain Lloyd’s Underwriters Subscribing to Contract No 1H00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]–[26] and Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]–[23].

44    In this matter, the critical statutory provision is, as has already been observed above, s 203BE(5). That provision has to be considered in its statutory context and having regard to the purpose of the NTA. In that respect, the relevant purpose is the protection of native title, in particular, with respect to future acts affecting native title (see s 3(a) and (b)). The particular future acts in question in this matter are those that may be carried out under the terms of an indigenous land use area agreement under Part 2 Division 3 Subdivision C (see ss 24CA to 24CL). An area agreement ILUA is an ILUA that applies to an area where there are no registered native title bodies corporate (see s 24CC). If such an ILUA is duly registered and it complies with the provisions of s 24EB(1), then any future act carried out under that ILUA that affects native title in that area is valid (see s 24EB(2)). Moreover, it is binding on the parties to the ILUA and “all persons holding native title in relation to any of the land or waters in the area covered by the [ILUA] who are not already party to the [ILUA]” (see s 24EA(1)).

45    With these observations in mind, I turn to consider the relevant considerations posited by Ms Kemppi in this part of her proposed amendments. First, the consideration advanced in (d) (see at [38] above) can be rejected at once. For the reasons I have set out above (at [36]–[37]), I do not consider that it is reasonably arguable that the merits of the ILUA in this matter was a consideration to which QSNTS was statutorily bound to have regard when it formed its opinions about the matters set out in s 203BE(5) and issued the Certificate.

46    I turn then to the matters described in (a), (b) and (c) (see at [38] above). In differing forms, they are all expressed to relate to the “Wangan and Jagalingou”. It is not clear, however, whether this descriptor is intended to refer to the Wangan and Jagalingou People generally, or to the W & J claim group specifically. Assuming it is either, or both, the question then is whether membership of, or identity with, those People or that claim group is a relevant consideration in the sense described above, or, in the context of the present interlocutory application, whether that proposition is at least reasonably arguable.

47    In answering this question, it is important to note that the import of paragraphs (a) to (c) above is not that certain persons who may be members of either or both of those bodies were wrongly excluded from the authorisation process with respect to the ILUA in question in this matter, but rather that certain persons who attended the meeting on 16 April 2016 were wrongly included as members of those bodies and, therefore, wrongly allowed to participate in the authorisation process. This therefore requires a construction of ss 203BE(5) and 251A that would confine those entitled to participate in the authorisation process to the members of either or both of those two bodies.

48    The particular part of the text of both those provisions that is important on this aspect are the words “may hold” the native title in the area covered by the ILUA. On their face, those words appear to be expansive or inclusive in their reach. That is, to include in the group of persons who may participate in the authorisation process under s 251A any person who may hold native title in the area affected by the ILUA. In this regard, those words may be contrasted with the words “claim to hold” native title in s 24CH(2)(d)(i).

49    However, on this aspect of this interlocutory application, I am not required to determine the proper construction of ss 203BE(5) or 251A, but rather to decide whether the approach to construction of those sections advanced by Ms Kemppi, as outlined above, is reasonably arguable. In my view, it is. Having expressed this view, it is inappropriate that I enter into an explanation as to why I have formed it because the true and proper construction of those provisions is something that will fall to be determined at the trial of this proceeding.

50    For these reasons, I consider Ms Kemppi should be given leave to make the amendments sought by paragraphs (a) to (c) inclusive of the third part of her proposed amendments.

Conclusion

51    I will therefore order that Ms Kemppi be given leave to file a further amended statement of claim containing the allegations set out in [24] above, with the exception of paragraph (d). Otherwise, I will order that Ms Kemppi’s interlocutory application filed 6 June 2017 be dismissed.

Associate:    

Dated:    12 September 2017

SCHEDULE OF PARTIES