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Editors --- "Harris v Great Barrier Reef Marine Authority (5 August 1999 and 22 October 1999) - Case Summary" [2000] AUIndigLawRpr 25; (2000) 5(3) Australian Indigenous Law Reporter 109

Court and Tribunal Decisions - Australia

Harris v Great Barrier Reef Marine Authority

Federal Court of Australia

5 August 1999

[1999] 165 ALR234; [1999] FCA 1070

Native Title — analysis of provisions requiring notice of proposed activities — whether aboriginal claimants obtained benefit of procedures imposed by statute

Administrative law — consideration of permit applications where third party interests not adequately protected — analysis of statutory right to comment — detail of notification and timing of response — whether common law rules of procedural fairness extinguished or limited by statute

Statutory interpretation — relevance of statutory purpose in construing scope of statutory duties

Facts:

Between 10 November 1998 and 2 February 1999 the Great Barrier Reef Marine Park Authority (GBRMPA) issued 109 notices pursuant to s 24HA(7) of the Native Title Act 1993 (Cth) (the Act) proposing to grant permits with respect to activities in and around the Great Barrier Reef Marine Park (the Park). The applicants, who claimed native title over a part of the Park, first sought a declaration that the Native Title (Notices) Determination (the Determination) which prescribed the manner in which notices under s 24HA were to be given was invalid. This application was dismissed on 5 April 1999 ([1999] FCA 437). The applicants then sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decision of GBRMPA to proceed to consider the grant of the permits. They claimed that the content of the notices and the time given to the applicants to consider them did not satisfy the obligation imposed by s 24HA of the Act.

Held:

Subsection 24HA(7) must be construed so that the opportunity to comment on the grant of a permit is not meaningless. The relevant requirement of the Determination was to provide ‘a clear description of the area that may be affected by the act or class of acts’. This required that the native title claimants be alerted to that part of their claim area to which the proposed licence or permission relates. The notices given by GBRMPA did not comply with the Determination because:

• the notices specifying that the permits related to all zones within a section of the Park did not identify which part of the native title claim area would be affected by activities authorised by the proposed permits; and

• the notices that did specify particular locations included locations that were not within the claim area, and in any event, the mere nomination of points within the claim area may not be sufficient.

The terms of the Determination would require GBRMPA to consider what areas of the claim area would be affected. It is difficult to accept that GBRMPA could fulfil its statutory functions without information about the activities proposed to be carried out and the locations at which those activities would be carried out. GBRMPA was to provide the applicants with a clear description of any part of the sea claim area that would be affected by the grant of each permit.^[1]

[GBRMPA applied for directions on the form of notice that would satisfy the order. This was decided on 22 October 1999. See below.]

Harris v Great Barrier Reef Marine Authority

Federal Court of Australia (Kiefel J)

22 October 1999

[1999] FCA 1460

Held:

Where the applicant for the permit sought permission to enter all zones within a section of the Park, it was not sufficient compliance with the Determination for GBRMPA to advise that a roving permit holder might conceivably use any part of the claim area. GBRMPA might be required to make further inquiry of applicants for permits in order to give proper notice.

^[1] The full text of this judgment is available at <http://www.austlii.edu.au/au/cases/cth/federal_ct/1999/1070.html