Background
Ut-Alkar Aboriginal Corporation holds native title on trust for the Olkola People over land on Cape York covered by Broken Hill Gold Limited’s mining leases and exploration permit. The company sought to remove a standard condition from two environmental authorities that prohibited activities within 100 metres of a historical, archaeological or ethnographic site. After consulting Ut-Alkar, which opposed the change, the Department refused the amendment applications and confirmed those refusals on internal review.
Broken Hill Gold appealed both review decisions to the Land Court. Ut-Alkar was not notified when the appeals were filed and learned of them only on 2 March 2026, when it was told they were listed for review in May and then for a two-day hearing. While Ut-Alkar was preparing to apply for joinder, the Chief Executive reversed the Department’s earlier position and joined the company in seeking consent orders. Without notice to Ut-Alkar, the Land Court allowed the appeals on 31 March 2026 and removed the exclusion-zone condition.
The Court’s Holding
Henry J held that procedural fairness required Ut-Alkar to receive a reasonable opportunity to be heard. Removing the exclusion-zone condition directly affected Ut-Alkar because it had a proprietary interest in the land within the zone, had previously made detailed submissions supporting the condition, and would lose a concrete geographical protection not replicated by the other statutory protections identified in the proceeding. Once the Chief Executive abandoned the Department’s previous position, no existing party remained to argue effectively for retaining the condition.
Ut-Alkar did not receive that reasonable opportunity. It had been told that the appeals would be heard in May, was actively investigating the joinder procedure and obtaining senior counsel, and was given no notice that the parties had accelerated the matter for disposition by consent. The Court found that the period from 2 to 31 March did not provide a reasonable opportunity to become a party or otherwise be heard. Henry J noted an argument that the Land Court should have postponed determination until it confirmed that Ut-Alkar had been notified and could indicate whether it wished to be heard, but found it unnecessary to decide whether that omission was independently a breach.
The procedural-fairness failure constituted a breach of natural justice under s 20(2)(a) of the Judicial Review Act 1991 (Qld). The Supreme Court set aside the Land Court’s orders in appeals EPA 200-25 and EPA 201-25 and remitted both appeals for determination according to law, with liberty to seek consequential orders.
Key Takeaways
- A nonparty whose proprietary interests are directly affected by an administrative appeal may be entitled to a reasonable opportunity to be heard.
- Consent between the named parties could not displace the Land Court’s statutory responsibility to decide the appeals by rehearing.
- A person does not necessarily lose procedural-fairness protection by failing to seek joinder within weeks when the listed hearing is months away and the proceeding is concluded early without notice.
Why It Matters
The decision underscores that courts and tribunals must consider the interests of directly affected nonparties, particularly when an existing contradictor changes position and proposed orders would remove protections affecting native title land. The relevant question is whether the affected person had a genuine and reasonable opportunity to participate, not merely whether participation was theoretically possible before orders were made.
The judgment does not decide whether the exclusion-zone condition should ultimately remain. It requires the Land Court to reconsider the appeals according to law after the procedural-fairness defect is corrected.