Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources

• Jurisdiction: Australia Federal only
• Judgment Date: 18 July 2023
• Neutral Citation: [2023] FCA 809
• Date: 18 July 2023
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809

File number:	SAD 224 of 2021
Judgment of:	CHARLESWORTH J
Date of judgment:	18 July 2023
Catchwords:	ADMINISTRATIVE LAW – two consolidated applications for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) – decision under s 14 of the National Radioactive Waste Management Act 2012 (Cth) (NRWM Act) to declare a parcel of land known as Napandee as the site for the establishment and operation of a facility for the management of radioactive waste and to declare certain rights in that land to be extinguished – where the decision-maker made statements in the course of promoting a policy for the amendment of the NRWM Act to repeal the decision making power and instead directly provide for the identification and acquisition of the site – where attempts to amend the legislation were ultimately unsuccessful – whether in the course of promoting the policy for reform the decision-maker made statements that might cause a fair-minded lay observer to apprehend that the decision-maker might not bring an open mind to bear on the issues to be decided in the later exercise of the statutory power – whether the decision-maker made errors of law in his conclusions as to the operation of the statute conferring the power and other legislation that continued to apply – where the rules of procedural fairness were expressly limited – whether the decision was affected by legal unreasonableness by reason of a failure to provide the applicants with an opportunity to comment on adverse material – interrelation between principles for the implication of an obligation to afford procedural fairness and the implication of a condition that a statutory power be exercised reasonably ; CONSTITUTIONAL LAW – provisions of the NRWM Act supported by the legislative power of the Commonwealth to make laws with respect to defence and external affairs – allegation that the law was supported by neither power or alternatively that the law could not be read down so as to be supported by either of them – law having a stated object to implement Australia’s obligations under an international convention – whether the law was reasonably capable of being considered appropriate and adapted to that purpose – whether the radioactive waste management facility authorised by the decision under review could be supported by the defence power even if a very small proportion of the radioactive waste to be located there was related to military activities
Legislation:	Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16 Defence Act 1903 (Cth) s 63 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 21, 22, 67, 68, 75, 87, 133, 134, 136, 341C, 341S, 341Z, 341ZA, 528 Evidence Act 1995 (Cth) s 136 Judiciary Act 1903 (Cth) s 39B Lands Acquisition Act 1989 (Cth) Migration Act 1958 (Cth) s 501 National Radioactive Waste Management Act 2012 (Cth) ss 3, 4, 4A, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 23, 24, 25 National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Act 2021 (Cth) s 3 Native Title Act 1993 (Cth) s 57 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) Parliamentary Privileges Act 1987 (Cth) s 16 Racial Discrimination Act 1975 (Cth) s 10 ; Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) regs 10.03A, 10.03E National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 ; Aboriginal Heritage Act 1988 (SA) ; Charter of the United Nations Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964) International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) International Labour Organisation, Convention (No. 169) concerning indigenous and tribal peoples in independent countries, opened for signature 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991) Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management done at Vienna on 5 September 1997 Statute of the International Court of Justice United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)
Cases cited:	Abebe v Commonwealth (1999) 197 CLR 510 ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 Amoco International Finance Corporation v Iran (Partial Award) (1987) 15 Iran-US CTR 189 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533 Australian Capital Territory v SMEC Australia Pty Ltd [2018] ACTSC 252; 337 FLR 290 Australian Communist Party v Commonwealth (1951) 83 CLR 1 Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) (2013) 212 FCR 406 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092 Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) (2020) 275 FCR 669 Buchanan v Jennings [2005] 1 AC 115 Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 Croft on behalf of the Barngarla Native Title Claim Group v South Australia (No 2) [2016] FCA 724 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) (No 5) [2021] FCA 1132 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Grand River Enterprises Six Nations, Ltd v United States of America (Award) (ICSID Arbitral Tribunal, 12 January 2011) Guy v Crown Melbourne Ltd (ACN 006 973 262) (No 2) [2018] FCA 36; 355 ALR 420 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 Isbester v Knox City Council (2015) 255 CLR 135 Laurance v Katter [2000] 1 Qd R 147 Legal Consequences for...