Cheinmora v Striker Resources NL; Dann v State of Western Australia
[1996] FCA 1147
•19 DECEMBER 1996
C A T C H W O R D S
NATIVE TITLE - "future act" - "permissible future act" - proposed grant of (mineral) exploration licences - Government party's notices of proposed grant included statement that it considered act attracted expedited procedure - native title parties objecting against Government party's statement - whether grant and activities licensed thereunder attracted expedited procedure - function of National Native Title Tribunal ("NNTT") as arbitral body to determine matter - whether Government party is required to show that, before including expedited procedure statement, it had considered and applied relevant criteria - whether NNTT's jurisdiction depended upon proof of that matter - whether NNTT erred in law in applying an onus of proof in respect of other matters - whether any onus of proof applicable - whether direct interference with community life of native title holder must be physical and immediate - sites of "particular" significance in accordance with their traditions to holders of native title - meaning of "particular" in that context - whether major disturbance to land or waters is to be assessed by standards of Aboriginal community or by Australian standards as a whole - whether NNTT took into account irrelevant considerations - effectiveness of State legislation and administrative procedures to protect such sites - whether NNTT was obliged to take into account State Minister's powers under the Aboriginal Heritage Act 1972 (W.A.) and the Aboriginal Affairs Planning Authority Act 1972 (W.A.).
Native Title Act 1993 (Cth) ss.26, 29, 30, 32, 75, 108, 109, 139, 162, 165, 169, 237
Ward v. Western Australia (1996) 136 ALR 557
The Commonwealth v. Tasmania (1983) 158 CLR 1
Western Australia v. The Commonwealth (1995) 128 ALR 1
Walley v. Western Australia (1996) 137 ALR 561
Scurr v. Brisbane City Council (1973) 1 ALR 420
State of Western Australia v. Bropho & Ors (not yet reported, Lee J, Federal Court of Australia, 18 November 1996, No. 992/1996).
State of Western Australia v. Ward & Ors (not yet reported, Lee J, Federal Court of Australia, 18 November 1996, No. 993/1996)
DELORES CHEINMORA v. STRIKER RESOURCES NL, AUSTRALIAN
UNITED GOLD NL, MARK JAMES THOMPSON and THE STATE OF
WESTERN AUSTRALIA
No. WAG 6005 of 1995
JACK DANN v. THE STATE OF WESTERN AUSTRALIA and GPA
DISTRIBUTORS PTY LTD
No. WAG 6001 of 1996
CARR J
PERTH
19 DECEMBER 1996
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 6005 of 1995
GENERAL DIVISION )
B E T W E E N : DELORES CHEINMORA
Applicant
A N D :STRIKER RESOURCES NL
AUSTRALIAN UNITED GOLD NL
MARK J. THOMPSON
THE STATE OF WESTERN AUSTRALIA
Respondents
No. WAG 6001 of 1996
JACK DANN
Applicant
and
THE STATE OF WESTERN
AUSTRALIA
First Respondent
and
GPA DISTRIBUTORS PTY LTD
Second Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 19 DECEMBER 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
A.Delores Cheinmora v. Striker Resources NL, Australian United Gold NL, Mark J. Thompson and the State of Western Australia
No. WAG 6005 of 1995
The appeal be dismissed.
The applicant pay the fourth-named respondent's costs.
B. Jack Dann v. The State of Western Australia and GPA Distributors Pty Ltd
No. WAG 6001 of 1996
The appeal be allowed.
The decision of the National Native Title Tribunal, made on 20 December 1995, that the grant of Exploration Licence 04/998 to GPA Distributors Pty Ltd attracts the expedited procedure, be set aside.
The matter of whether such grant attracts the expedited procedure be remitted to the Tribunal for determination of the application of s.237(a) of the Native Title Act 1993 according to law.
There be no order as to costs.
NOTE:Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 6005 of 1995
GENERAL DIVISION )
B E T W E E N : DELORES CHEINMORA
Applicant
and
STRIKER RESOURCES NL
AUSTRALIAN UNITED GOLD NL
MARK J. THOMPSON
THE STATE OF WESTERN AUSTRALIA
RespondentsNo. WAG 6001 of 1996
JACK DANN
Applicant
andTHE STATE OF WESTERN AUSTRALIA
First Respondent
and
GPA DISTRIBUTORS PTY LTD
Second Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 19 DECEMBER 1996
REASONS FOR JUDGMENT
Introduction
These are two appeals brought under s.169(1) of the Native Title Act 1993 (Cth) ("the Act") from determinations by the National Native Title Tribunal ("the Tribunal"), made under s.32(4) of the Act, that the grant of certain exploration licences by the State of Western Australia under the Mining Act 1978 (W.A.) ("the Mining Act") attracted what the Act describes as "the expedited procedure". The appeals were heard together. There are several issues common to both matters.
Factual Background
No. WAG 6005 of 1995 [Cheinmora]
On various dates between 14 July 1994 and 2 December 1994 the first, second and third respondents ("the grantee parties") made separate applications to the Minister for Mines of the State of Western Australia for the grant of eight exploration licences over areas totalling approximately 129 square kilometres in the Forrest River Aboriginal Reserve and in offshore seabed and navigable waters, in the Shire of Wyndham-East Kimberley.
On 31 May 1995 the fourth-named respondent, the State of Western Australia ("the Government party"), gave notice under s.29 of the Act of its intention to grant the exploration licences to the grantee parties. In that notice the Government party, acting pursuant to s.29(4) of the Act, included a statement ("the Statement") that it considered that the grant of each of the exploration licences was an "act attracting the expedited procedure", a term defined in s.237 of the Act. On 30 July 1995 the applicant Ms Delores Cheinmora and seventeen others applied on their own behalf and on behalf of the Gwini, Walombi and Wunnubal peoples for a determination of native title over land which included the above areas. On 1 August 1995 the Registrar of the National Native Title Tribunal accepted that application and the applicants thereby became registered native title claimants and "native title parties" - see s.30(a) of the Act. On 30 July 1995 the applicants objected, under s.32(3) of the Act, to the inclusion of the Statement in the Government party's notice. The National Native Title Tribunal, constituted by the Hon. C.J. Sumner, heard that objection on 6 October 1995, 24 November 1995 and 13 December 1995. On 19 January 1996 the Tribunal published
its determination (and its reasons for the determination) that the grant of each of the exploration licences to the respective grantee parties was an act which attracted the expedited procedure. In the meantime, on 7 November 1995 the applicant in the present proceedings (to whom I shall refer as "the applicant") appealed to this Court against the Tribunal's decision, made on 6 November 1995, to decline to refer certain questions of law to this Court. On 9 February 1996 the applicant was given leave to file a substituted notice of appeal to include an appeal against the Tribunal's determination of 19 January 1996.
The grantee parties in this application (and in the Dann application referred to below) took no part in either the inquiry before the Tribunal or the appeals to this Court.
No. WAG 6001 of 1996 [Dann]
The factual circumstances of this application follow a similar (but not identical) pattern to those of the above application. Accordingly, I provide that information in tabular form as follows:
Applicant for Exploration Licences: GPA Distributors Pty Ltd
Date of application: 21 November 1994
Area: Approximately 78 square kilometres
Land tenure: Pastoral lease and stock route reserves
Location: 118 kilometres east of Derby in the Shire of Derby West
Date upon which Government party gave Notice: 26 July 1995
Applicants for Native Title Determination: Mr Jack Dann and Ms Patricia Gonnak on their own behalf and on behalf of the Unggumi and Ngarinyin People
Date such application accepted: 10 September 1995
Date of appellants' objection: 9 August 1995
Date of Tribunal hearing: 20, 24 & 27 November 1995
Date of Tribunal's Determination: 20 December 1995
Date Appeal filed: 17 January 1996
The Legislative Framework
Subdivision B (which is entitled "Right to negotiate") of Division 3 of Part 2 of the Act applies to certain "permissible future acts", a term defined by s.235 of the Act. The proposed grant of an exploration licence falls within that definition because it is an act (other than the making, amendment or repeal of legislation) which could be done in relation to the land or waters concerned if the relevant native title holders instead held ordinary title to that land or the land adjoining or surrounding the waters. Section 26(2) provides that the creation of a right to mine, whether by the grant of a mining lease or otherwise is, subject to s.26(3) one of the permissible future acts to which Subdivision B applies. Section 253 defines the verb "mine" as including to explore or prospect for things that may be mined. Accordingly, an exploration licence amounts to the creation of a right to mine for the purposes of the Act. The exclusions provided for in s.26(3) do not apply to these matters.
Section 29 requires the Government party to give notice of its intention to do the permissible future act. Section 29(4) permits the Government party to include in such notice a statement that it considers the act is an act attracting the expedited procedure. (As indicated above, I shall refer to that statement as "the Statement").
The Government party must give that notice to various persons including any registered native title claimant in relation to any of the land or waters that will be affected by the permissible future act. Such a claimant is described in the relevant provisions as being included within the expression "native title party", see ss.29(2). The expression is extended by s.30 to include any person who becomes a registered
native title claimant within two months of the giving of notice by the Government party. The applicants in these proceedings are thus native title parties.
Section 32(2) provides that if the native title parties do not lodge an objection with the arbitral body in accordance with s.32(3) the Government party may do the act (in this case, grant each exploration licence to the various other respondents).
Section 32(3) provides that the native title parties may, within two months of being given notice by the Government party, lodge an objection with the arbitral body against the inclusion of the Statement. In each of these matters the arbitral body is the Tribunal, constituted by Mr Sumner.
Section 32(4) provides that if the native title parties object against the inclusion of the Statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act. Section 32(5) provides that if the arbitral body determines that the act is not an act attracting the expedited procedure, the arbitral body must request the Government party and the grantee parties to negotiate in good faith with the native title parties with a view to obtaining their agreement to doing the act, whether subject to conditions or not, and must offer to mediate among "the negotiation parties" to assist in obtaining their agreement. The term "negotiation party" is defined by s.253 as meaning a Government party, a grantee party or a native title party. There are provisions relating to such negotiations and for the making of a determination by the arbitral body if the negotiation parties cannot reach agreement. From the above it may
be seen that, on the assumption that the Government party complies with the Tribunal's request, a successful objection to the inclusion of the Statement confers on the objector what is described, perhaps somewhat loosely, as a "right to negotiate" Section 35 provides that if agreement is not reached between the parties concerned within four months (in matters of the type with which these appeals are concerned) from the giving of the notice under s.29, then any party may apply to the Tribunal for a determination whether the permissible future act may or may not be done or may be done subject to compliance with conditions. It appears that "the right to negotiate" is regarded by objectors as a valuable one.
Section 75 describes, by means of a short table, applications that may be made to the Registrar under Division 2 of Part 3 of the Act. Although the applications are referred to as being made "to the Registrar" it was common ground that in the present matters this meant "to the Tribunal". An objection to an act attracting the expedited procedure is treated as an application to the Tribunal. The portions of that table which are relevant to the present matters read as follows:
_______________________________________________________________________________
APPLICATIONS
_______________________________________________________________________________
Kind of Persons who
application Application may make
application
_______________________________________________________________________________
Objection to Application under subsection A native title
inclusion in an 32(3) objecting against the party
expedited procedure inclusion of a statement that an
application act is an act attracting the
expedited procedure.
_______________________________________________________________________________
Section 139 obliges the Tribunal to hold an inquiry into "... an application covered by section 75 ..." (which in each of those sections is described as a "right to negotiate application"). Section 139, and the sections following it, govern the procedure to be followed by the Tribunal.
Section 162 requires the Tribunal, after holding an inquiry in relation to a right to negotiate application, to make a determination about the matters covered by the inquiry. Section 162(2) requires the Tribunal to state in the determination any findings of fact upon which it is based. Section 165 provides that a determination of the Tribunal, other than a determination in relation to a right to negotiate application, is not binding or conclusive. Section 169(1) of the Act provides that a party to an inquiry relating to a right to negotiate application may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding. Section 169(5) declares that the Court has jurisdiction to hear and determine appeals instituted in accordance with the section. Section 169(6) provides that the Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. Examples of such orders are set out in s.169(7).
These appeals turn on the proper construction of s.237 of the Act, which provides as follows:
"Act attracting the expedited procedure
237.A future act is an "act attracting the expedited procedure" if:
(a)the act does not directly interfere with the community life of the
persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act does not interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned."
I should mention some preliminary matters. The Tribunal's inquiries and these appeals were conducted on the basis that:
.although it was yet to be established that there were any holders of native title, the objectors were to be regarded as such;
.the relevant future act was not simply the grant of each exploration licence but included the activities which were authorised by the licence, notwithstanding the distinction drawn in s.237(c).
The Proceedings Before the Tribunal and the Tribunal's Determinations
No. WAG 6005/1995 ["Cheinmora"]
The Tribunal directed that evidence taken in inquiries conducted in respect of eight earlier similar objections be received into evidence in this matter. There does not appear to have been much factual disputation before the Tribunal. The Tribunal noted that there was no evidence of any Aboriginal community living permanently on any part of the land concerned. There are communities at King George River, Berkeley and Paradise Pool which are all approximately 10-15 kms from the nearest point of the closest proposed exploration licences to them. At King George River there is one permanent house where a small group of four or five people with affiliation to the
surrounding country live. At Berkeley and Paradise Pool, there are a few bough shelters "but people are limited in staying". During the wet, most people move to Oombulgurri or Wyndham. There is a community with permanent houses at Oombulgurri which is approximately 30 kms from the nearest point of the closest proposed exploration licence to it and approximately 120 kms from the proposed offshore licence. People move through Oombulgurri to travel to their traditional country. The Tribunal found that at peak times there can be between 100 and 150 people living at Oombulgurri on a transient or permanent basis, but that not all would be part of a native title party group in the proceedings. The Tribunal found that there was no evidence that the native title parties engaged in traditional hunting, fishing or gathering activities on the land or waters. The Tribunal accepted certain anthropological evidence and found that there were sites of particular significance to the native title parties in accordance with their traditions on all of the proposed exploration licences except one which was almost all offshore. The Tribunal accepted evidence that the community life of the native title holders involved a particular relationship which the people comprising that community have to an area of land, rather than Aboriginal people who actually live in a place on a regular basis. In particular, the Tribunal found that the Oombulgurri community is made up of people who share particular laws and customs relating to the area of land under consideration, but who may live in towns outside that area. Even if living away from the land, the Tribunal accepted that the native title holders had rights and obligations in relation to that land. They could be held fully responsible for care of that country even if not living there. The Tribunal accepted that if such people were unable to participate according to their laws and customs in exercising their rights and responsibilities in
relation to the land, then this has an adverse effect on community life. Procedures had been established within the community of native title holders to enable consultation with such people. If places were not looked after, the consequences according to Aboriginal tradition (so the Tribunal found) included natural disasters such as flooding or personal injury or death through accident. The Tribunal also accepted that the law and customs of the Oombulgurri community would be contravened if they were not involved with the process of negotiating access to land, including the permit system under the Aboriginal Affairs Planning Authority Act 1972 (W.A.) ("the Aboriginal Affairs Planning Authority Act") and the process of mineral exploration. The Tribunal found that the native title parties have concerns about mineral exploration activity which are greater than those of Europeans. It listed those concerns. The Tribunal referred to a dispute in 1992 and 1993 between certain of the native title parties and a mining company in relation to the grant and re-grant of a permit, under the Aboriginal Affairs Planning Authority Act, to the mining company to enter part of the Forrest River Aboriginal Reserve in order to exercise certain rights under an exploration licence. The Tribunal found that two successive Ministers for Aboriginal Affairs had exercised their discretion to issue the permit in a way which was contrary to the express wishes of the Oombulgurri Group. The Tribunal examined the activities which would be permitted by an exploration licence. It did this by reference to what Striker Resources NL in particular intended to do as being illustrative of what the grant of an exploration licence allows generally. The Tribunal's examination of those activities was very detailed.
In relation to the matter of interference with community life referred to in s.237(a) of
the Act, this examination included legislative requirements and administrative arrangements under two State Acts. This was because the area included part of an Aboriginal Reserve. In summary, the grantee party was required to have the written consent under s.24(7) of the Mining Act of the Minister for Mines before carrying out any exploration. The Minister for Mines is by that section obliged, before granting that consent, to consult with and obtain the recommendation of the Minister for Aboriginal Affairs, being the minister responsible for the administration of the Aboriginal Affairs Planning Authority Act. The Tribunal noted that as part of this procedure the Aboriginal Affairs Department consults with the local Aboriginal community. Furthermore, s.31 of the Aboriginal Affairs Planning Authority Act relevantly would require a grantee party to obtain an entry permit from the Minister for Aboriginal Affairs before entering the Forrest River Aboriginal Reserve. Before granting such a permit, the Minister for Aboriginal Affairs must consult with the Aboriginal Lands Trust and obtain its views. It is the practice of the Aboriginal Affairs Department (on behalf of the Aboriginal Lands Trust), where such an application for entry is received, to contact the Aboriginal community or corporation who occupy or reside on the reserve. In practice, the Minister for Aboriginal Affairs requires the grantee party to negotiate an agreement with the relevant Aboriginal community relating to access for exploration purposes. The Tribunal accepted evidence from the Department of Minerals and Energy that, in practice, the consent of the Minister for Mines to mining on Aboriginal Reserve land will only be given if the licensee has obtained an entry permit under s.31 of the Aboriginal Planning Authority Act and that this will involve the licensee negotiating an agreement with the relevant Aboriginal community in respect of access for exploration purposes. The Tribunal
also referred to the provisions of the Mining Act which provide for the imposition of terms and conditions relating to making good injury to the surface of the land or anything on the surface of the land. In the context of the seabed and navigable waters, the Tribunal referred to comparable provisions and in particular to conditions which had been placed on the exploration licence which the Government party proposed to grant to Australian United Gold NL.
The Tribunal, although noting that it had found that there are certain aspects of community life which are unique to Aboriginal people in accordance with their traditions, rejected the applicants' contention that interference with community life [as referred to in s.237(a)] should be looked at from the point of view of those traditions and customs. The Tribunal held that such interference must be physical interference with the life of the community and that "community" meant people living together in a particular locality rather than a community defined by reference to the traditions and customs of native title parties. The Tribunal gave short reasons for its conclusion that, on that basis, a grant of the exploration licences was not likely directly to interfere with the community life of the native title parties.
The Tribunal then looked at the matter in the alternative, on the basis of accepting the applicants' argument for applying the Aboriginal understanding of "community", and said:
"Even if I accept Mr McIntyre's argument [Mr McIntyre was counsel for the applicants] about community life, the evidence has established that there are likely to be discussions with the native title parties and an entry permit not issued until such time as satisfactory arrangements have been entered into with them about the effect of the proposed exploration activity
on aspects of community life and sites of significance. This consultation process is in accordance with the responsibilities which the community of native title holders have to the land. In other words, because of the regulatory regime which the Tribunal has found in relation to Aboriginal reserve land, and in particular the likely control over access, there is unlikely to be direct interference with community life, even in the sense argued for by Mr McIntyre."
On the matter of interference with sites of particular significance [see s.237(b) of the Act] which the Tribunal had found to be located within the relevant area, the Tribunal examined the provisions of the Aboriginal Heritage Act 1972 (W.A.) ("the Aboriginal Heritage Act"). In particular, it referred to those sections which created an offence of excavating, destroying, damaging, concealing or in any way altering any Aboriginal site and a defence to such a charge. It referred to the standard endorsement on an exploration licence which draws a licensee's attention to the provisions of the Aboriginal Heritage Act, and a document entitled "Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers" ("the Guidelines") which is forwarded to all licensees. The Tribunal followed earlier Tribunal determinations, and held that there was unlikely to be interference with sites of particular significance, on the basis that the grantee parties act lawfully. In addition, the Tribunal referred to the legislative and administrative arrangements under the Aboriginal Affairs Planning Authority Act. In those circumstances, the Tribunal agreed with an earlier determination to the effect that it was unlikely there will be interference with places of particular significance in accordance with the traditions of native title parties.
The Tribunal held that the activities permitted by the exploration licences were unlikely to create a major disturbance to any land or waters [see s.237(c) of the Act] by the standards of the broader community. By this the Tribunal meant an effect which was
to be judged without reference to Aboriginal custom and tradition. In that regard, I set out below certain extracts from the Tribunal's conclusion on the matter of major disturbance, because counsel for the applicant contended that they reflect error of law. The extracts are as follows:
"Mr McIntyre has argued that the activities permitted under the grant of an exploration licence, which I have made findings about in para 7 (p.12) above, are likely to cause major disturbance to land. Even by the standards of the broader community, there is no doubt that this activity could cause major disturbance in some contexts. In a suburban back yard, a community recreation park, or in a rural Aboriginal community, major disturbance to land would occur. The Tribunal has acknowledged that there might be some physical peculiarity of the land which could lead to the conclusion that there would be major disturbance in some circumstances [references to previous Tribunal determinations], but there is no evidence of this kind before me in this matter.
In general, where there are large relatively open areas, the Tribunal has found that the activity permitted, with the controls imposed by legislation (s.66 Mining Act) and conditions, do not constitute major disturbance according to the standards of the general community. I have found that the controls to be imposed in relation to Aboriginal Reserve land are not likely to be less restrictive than generally. Further, any agreement between the native title parties and grantee parties on access or the entry permit can contain conditions relating to disturbance to land which are negotiated with the native title parties. As a result I conclude that there is unlikely to be major disturbance to land."
In relation to the seabed and navigable waters concerned, the Tribunal held that this was a large area, almost all offshore, with no established Aboriginal communities or permanent residents. There was no evidence that the area was used for traditional hunting, fishing, gathering or ceremonial activities, and even if there were such activities, the Tribunal formed the opinion that the actions permitted by the proposed exploration licences would not so interfere with these traditional pursuits as to interfere directly with the community life of the native title parties. The Tribunal concluded that the grant of the exploration licence was not likely to interfere directly with the
community life of the native title parties. It held that there was no evidence of areas or sites of particular significance to the native title parties and accordingly concluded that there was unlikely to be interference with such areas or sites by the grant of this licence. Finally, in relation to seabed and navigable waters, the Tribunal concluded that it was unlikely that major disturbance would be caused to land or waters.
No. WAG 6001 of 1996 [Dann]
In the Dann matter, the Tribunal accepted Mr Dann's evidence and certain evidence taken from the Register kept under the Aboriginal Heritage Act. On that basis, it found that there were four specific sites of particular significance in accordance with the traditions of the native title parties and some further sites of such particular significance on the relevant land. The Tribunal found that there is an Aboriginal community (the Windjingayre Aboriginal community) situated some 30 kms away from the proposed exploration area, on land leased to the Aboriginal Lands Trust under a special purpose lease provided for by s.116 of the Land Act 1933 (W.A.). The tribunal found that approximately 30-40 people live there from March to November each year but move to Derby during the wet. The Tribunal found that the grant of the exploration licence was not likely to interfere directly with community life. It applied the words "direct interference" as meaning "physical interference". In relation to interference with sites of particular significance, the Tribunal adopted a similar approach to that which it subsequently took in the Cheinmora matter. Counsel for Mr Dann had invited the Tribunal to reach a different conclusion on the basis that s.18 of the Aboriginal Heritage Act conferred a ministerial discretion to permit the excavation, destruction, damage or alteration of sites. The Tribunal held that the evidence did not
lead to the conclusion that it had become a matter of common practice for the minister's consent to be granted to enable exploration to proceed, such that the regulatory regime was ineffective. It concluded that the provisions of the Aboriginal Heritage Act and the information procedures provided under the Mining Act meant that there was unlikely to be interference with areas or sites of particular significance in accordance with the traditions of the native title parties. The Tribunal had, earlier in its reasons, expressed the view that major disturbance to land had to be assessed by the standards of the broader community. It concluded that a grant of the exploration licence was unlikely to involve major disturbance to the land.
The Grounds of Appeal
There was a substantial overlap between the grounds of appeal in each of these two matters. I propose to deal with the individual grounds common to both appeals in five groups. I will then turn to the two remaining, separate, grounds raised only in the Cheinmora matter.
Burden of proof [Ground (a) in Cheinmora - relettering the grounds consequent upon abandonment of Grounds (a) (b) and (c); and Ground (c) in Dann]
The applicants complain that the Tribunal erred in law by proceeding on the basis:
.of imposing the burden of proof of all relevant matters on the Objectors [Cheinmora];
.that the Objectors bore the burden of proof of all relevant matters [Dann].
Mr G M McIntyre, counsel for the applicants in both matters, relied upon part of the Tribunal's reasons for decision, given on 6 November 1995, in respect of certain directions which the applicants had sought from the Tribunal prior to the hearing. The effect of those directions would have required the Government party first to produce sufficient evidence to raise a prima facie case to show that the matters referred to in s.237(a),(b) and (c) did not arise and that upon a prima facie case so being made out, the Objectors would produce evidence in support of their contention that the acts did not attract the expedited procedure. The Tribunal, in refusing to make the directions sought, said that "they [the directions] again raise the burden of proof issue". The Tribunal expressly adopted the conclusions of Deputy President Seaman QC in a previous determination: Irruntyju-Papulankutja Community (WO95/7), 6 October 1995, and cited the following passage from that determination (at p.5):
"In my opinion once the native title parties object to the inclusion of the statement that the government party considers that the act attracts the expedited procedure, the Act treats them as applicants (s.75) and they have to satisfy the Tribunal by evidentiary material that s.237 does not apply to the act."
Mr G R Donaldson, counsel for the Government party, submitted that I should not have regard to this preliminary decision, but should confine myself to the reasons given for the determination of 19 January 1996. Neither party was able to cite to me any authority on the question whether I should be so confined.
It must be remembered that the subject matter for consideration is whether a body carrying out an administrative function has erred in law in its determination of the matter before it. In those circumstances, I consider that it is appropriate to have
regard to a formal earlier statement of reasons by the Tribunal in this particular matter on the question of where it considered the burden of proof lay. I do not think that the above passage should be treated as determining the question of error of law, but rather as part of the context in which to assess whether the Tribunal did err in law by shouldering the native title party with a burden of proof to which it should not have been subjected. In Ward v. Western Australia (1996) 136 ALR 557 at p.567 I expressed the view that no burden of proof, nor for that matter any evidential burden of a legal nature, lies on any party to proceedings before the tribunal when it inquires into the matters referred to in s.237 of the Act. Mr McIntyre expressly agreed with my view on this point in Ward. The only other passage to which Mr McIntyre took me in the Tribunal's reasons for determination in Cheinmora was the following (at AB907):
"The decisions of the Tribunal have established that evidence must be produced which shows that the grant of the exploration licence, including lawful activities of the grantee party which are permitted by the regulatory regime applicable to it (including the legislation, regulations, imposition of conditions and the use of Ministerial and Departmental discretion) is likely to result in ... [the matters referred to in s.237(a),(b) or (c)]."
Mr McIntyre conceded that this passage, on its own, did not disclose error. In fact Mr McIntyre went further and said that it would seem that the Tribunal had not made a decision which has put a burden of proof on one party or the other. I have examined the reasons in both the Cheinmora and Dann matter. I have come to the conclusion that in neither matter did the Tribunal impose even an evidential burden of proof on the applicants. In particular, a reading of the manner in which the conclusions are expressed (AB 928-934) confirms this. While I consider that legitimate criticism can be directed at the statement set out above and adopted by the Tribunal when ruling on
the applicants' request for directions on 6 November 1995, I do not consider that that statement was carried through into and infected the determination in either Cheinmora or Dann with error of law.
Whether the direct interference with community life referred to in s.237(a) is confined to physical interference? [Ground (c)(i) in Cheinmora and Ground (b)(i) in Dann]
These two grounds of appeal were in effect expressed identically in each matter, save that in Cheinmora a complaint was made that the word "direct" was interpreted as meaning "physical" and "immediate".
The applicants submit that interference with community life for the purposes of s.237(a) may be both physical and spiritual. For that proposition they rely on my decision in Ward v. Western Australia (1996) 136 ALR 557 at pp.572-574. The Government party, in its written outline of submissions, initially contended that I was in error in so holding in Ward. However, at the hearing of this appeal, counsel for the Government party informed me that he had been instructed to withdraw those submissions. Nevertheless, Mr Donaldson submitted that in the Cheinmora matter the Tribunal (at AB 930) had considered what was likely to happen in the context of accepting Mr McIntyre's alternative argument and found that there is unlikely to be direct interference with community life, even in the sense argued for by Mr McIntyre. I refer to the passage which I have set out at pp.12-13 above. Mr McIntyre agreed with that assessment but said that the conclusion was wrongly based on the Tribunal's analysis of the regulatory regime. Furthermore, Mr McIntyre submitted that it could be seen (at AB 932) that the Tribunal had "gone back" to its original view that direct
interference with community life had to be physical interference. I accept the Government party's submissions in relation to the Cheinmora matter. I do not accept Mr McIntyre's two submissions on this point for the following reasons. First, I consider (for reasons which I give elsewhere) that the Tribunal did not err in taking into account the regulatory regime when drawing its conclusions on the matter of the likelihood of direct interference. In the passage referred to (at AB 930) it is clear that the Tribunal considered the matter on the basis put forward by Mr McIntyre and made a finding that there would be no direct interference either physically or spiritually. Secondly, in my view it is clear from the context of the passage at AB 932 that the Tribunal was there dealing with a general challenge to the effectiveness of the regulatory regime under the Aboriginal Affairs Planning Authority Act. In that context it referred to the entry permits granted to Stockdale Prospecting Ltd and BHP Minerals Ltd in 1992 and observed that it was not clear that this would have been likely to result in interference with community life as defined by the Tribunal (i.e. of a physical nature). I do not consider that this passage in any way qualifies or limits the Tribunal's alternatively-based conclusion at AB 930. In the Dann matter, the Government party concedes that the Tribunal's interpretation of s.237(a) differs from my interpretation in Ward. It has withdrawn its submission that I reconsider my decision in that case. In those circumstances, the decision in the Dann matter will be remitted to the Tribunal for the purpose of considering whether there is likely to be direct interference with the community life of the native title holders, being interference which would not necessarily be physical in its character or nature.
The definition of "areas or sites of particular significance" [Ground (c)(ii) in Cheinmora and Ground (b)(ii) in Dann]
In the Cheinmora matter the Tribunal's error of law was said to be in interpreting the words "particular significance" in s.237(b) to mean special or more than ordinary significance and not to mean of particular significance to the particular class of people comprising persons who are the holders of native title in relation to the land and waters concerned. In the Dann matter, this complaint was expressed as error of law on the Tribunal's part in concluding that interference with areas or sites of particular significance meant that such sites had to be of special or more than ordinary significance in accordance with the traditions of the native title party.
I shall first assess the approach taken by the Tribunal on this point. It is clear that in both matters (see AB 907 in Cheinmora and AB 576 in Dann) the Tribunal held that the expression "particular significance" in s.237(b) of the Act was used in the sense of special or more than ordinary significance. However, in Cheinmora the Tribunal accepted the evidence that there was a site of particular significance on exploration licence 80/2035. It then dealt with the evidence of Ms Kim Doohan, an anthropologist. Although the Tribunal said there was some doubt as to whether sites named by Ms Doohan were of particular significance in the sense defined by the Tribunal, it held that her evidence showed clearly that there were some sites which are of particular significance in accordance with the traditions of the native title parties (see AB 909 as reaffirmed on AB 910). Its conclusion was that there would not be interference with those sites. The Tribunal does not appear to have excluded any site on the basis that it was not sufficiently special or more than ordinary to be of particular significance. The
same applies, in my view, to the Dann decision. Mr McIntyre suggested that the finding in paragraph 8 on AB 578 suggested that this was the only site found by the Tribunal to be of particular significance. That is clearly not so. Further sites were held to be of particular significance in paragraphs 3, 4 and 6. In the end, during oral argument, Mr McIntyre conceded that the Tribunal had adopted the meaning of "particular significance" contended for by him, but had applied the wrong test and reached the wrong result in concluding that there would not be interference. That, of course, is another matter. In those circumstances, strictly speaking, it is not necessary for me to consider the construction point. However, as it was the subject of some argument, I propose to do so.
In essence, the applicants contend that s.237(b) should be construed so that the word "particular" does not qualify the word "significance". All that is required, so it is put, is that the sites be of significance particular to the persons who are the holders of the native title in accordance with their traditions. They rely upon certain observations of Mason J in The Commonwealth v. Tasmania [the Tasmanian Dam case] (1983) 158 CLR 1 at pp.159-160. I have read the passages to which Mr McIntyre referred but I do not think it supports his contention. In that case the High Court was considering, among other matters, that portion of s.8 of the World Heritage Properties Conservation Act 1983 (Cth) which defined a reference to an "Aboriginal site" in terms which included that:
"(b)the protection or conservation of which is, whether by reason of the presence on the site of artefacts or relics or otherwise, of particular significance to the people of the Aboriginal race."
When Mason J said at p.159:
"Thus an Aboriginal archaeological site which is part of the cultural heritage of people of the Aboriginal race has a special and deeper significance for the Aboriginal people than it has for mankind generally. If it be found on the facts that the sites do have a particular significance for them because the sites are part of their cultural heritage, there is a special need to protect the sites for them, a need which differs from, and in one sense transcends, the need to protect it for mankind."
I do not think that his Honour was excluding any need to show that a site was of special or more than ordinary significance. Even if my assessment is wrong on that point, there is this passage (at p.245) in the judgment of Brennan J (with whom Murphy J agreed):
"The phrase "particular significance" in s.8 cannot be precisely defined. All that can be said is that the site must be of a significance which is neither minimal nor ephemeral, and that the significance of the site may be found by the Aboriginal people in their history, in their religion or spiritual beliefs, or in their culture."
See also Deane J (at p.275):
"The dual requirement that a declaration can only be made in respect of a site if it is both "of outstanding universal value" and "of particular significance to the people of the Aboriginal race" means that only those Aboriginal sites which are of extraordinary significance qualify for protection and conservation under ss.8 and 11."
See also Gibbs CJ at p.110 and Dawson J at p.321. I accept that too much cannot be drawn from the Tasmanian Dam case for the construction of s.237(b) of the Act in this matter because these passages from the reasons for judgment take into account the requirement of "outstanding universal value" (see Article 11 of the Convention for the Protection of the World Cultural & Natural Heritage 1975).
I have reached the conclusion that the Tribunal's construction of s.237(b) is correct i.e. that a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough that the site simply be of significance to the native title holders. That would leave the word "particular" with no work to do. It would also involve a notional transposition of that word from being in front of "significance" (as it appears in the subsection) to immediately after it. If Parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word "particular" out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the Native Title party claims are of particular significance, the Tribunal will have to make its own factual assessment of that matter.
Whether, in assessing the matter of major disturbance referred to in s.237(c) this is to be judged solely by the standards of the broader community [Ground (c)(iii) in Cheinmora and Ground (b)(iii) in Dann]
There is no doubt that the Tribunal in each matter construed s.237(c) in the manner complained of by the applicants (see AB 907 in Cheinmora and AB 576 in Dann). In Ward (at pp.574-576) I held that that was the correct construction. I am still of that view. Mr McIntyre submitted that such a construction conflicted with the object of the Act expressed in s.3(a). Section 3 of the Act relevantly provides:
"Objects
Main objects
3.The main objects of this Act are:
(a)to provide for the recognition and protection of native title; and
(b)to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
...; and
...".
Mr McIntyre submitted that in the context of legislation enacted under the power conferred by s.51(xxvi) of the Constitution, "very close attention needs to be given" to s.3(a). This legislation was a special law enacted for Aboriginals: Western Australia v. The Commonwealth (1995) 128 ALR 1. Mr McIntyre also referred me to certain passages in the preamble to the Act and the second reading speech as reported in Hansard.
In my view, nothing in those materials requires the object stated in s.3(a) to be given precedence over the object stated in s.3(b) for the purpose of reading down the expression "major disturbance" in s.237(c) to mean "major disturbance" by the standards of the native title parties. In fairness to Mr McIntyre, he claimed no such precedence for s.3(a). To refer to s.51(xxvi) as the basis for a contention that s.3(a) should be given any closer attention than s.3(b) is, in my view, to beg the question. The question is the extent to which Parliament, by enacting s.237(c) in its present form, intended to protect Aboriginal people in the context of the competing national interest that activities such as, in this case, exploration for minerals, should proceed under non-discriminatory governmental licence. By "non-discriminatory" I refer to the requirement in s.235(5) that to be a "permissible future act" in relation to "an onshore place" (which includes onshore native title waters) the act must be one which could be done in relation to the land or waters concerned if the native title holders instead held
ordinary title. There is no dispute over that being the case in these matters. There is no such requirement in relation to "an offshore place" - all future acts in relation to an offshore place are permissible future acts [s.235(8)(a)], though, in cases where there are objections, they must still be tested against s.237 before they are future acts which attract the expedited procedure. The extent of Parliament's protective intent should, in my opinion, be discerned from the language used by Parliament rather than any presumption taken from the particular constitutional source. As I observed in Ward (at p.576) matters of the community life of the native title holders (which I consider include their spiritual life) and sites of particular significance in accordance with their traditions are dealt with by the first two paragraphs of s.237. Paragraph (c) does not refer to the standards of the native title holders and that is in marked contrast to the preceding paragraph.
I reserved judgment in these matters on 5 November 1996. On 18 November 1996, Lee J delivered judgment in two matters which concerned the expedited procedure and, in particular, the operation of s.32(4) when read with s.237, namely State of Western Australia v. Ward & Ors (Judgment No. 993/1996) and State of Western Australia v. Bropho & Ors (Judgment No. 992/1996). In his Honour's reasons for judgment in the Ward matter (at pp.31-33) there appear the following passages:
"I note that in Ward v. State of Western Australia (1996) 136 ALR 557 at 571-572 it was accepted that the Tribunal had not erred in treating the words "does not" used in s237 as equivalent to "is not likely to". I am unable to agree that in so acting the Tribunal would be applying a proper construction to s237. In my respectful opinion the use of the present tense to describe the effect of a proposed future act means that s237 of the Act requires an assessment to be made of the future act according to its nature, and where the future act is the creation of a right to mine, by having regard to the potential consequences made possible by the exercise of that right. That is to say the
section asks what the future act "does" according to the nature of the rights it creates. The inquiry to be made pursuant to s237 is whether, on its face, the future act gives rise to powers, the exercise of which would infringe s237(a), (b) or (c) if connection of the native title party to the land or water "affected" by the proposed future act is pointed to by the material, such connection being the existence of community life, or areas or sites of particular significance or cultural ties and traditional customs of the native title party that would be affected by any major disturbance of that land or water.
Under sub-s32(4) the Tribunal is to give consideration to the events that are made possible by such a future act and to the claims made by a native title party in respect of the land or water in respect of which the future act would apply and is to assess whether there are issues arising out of that material that should be resolved by negotiation between the parties, or by the Tribunal if the parties are unable to reach agreement in that regard. If the Tribunal is satisfied that no issue has been seriously raised that would make it appropriate for the ordinary processes of the Act to be followed in respect of negotiation and determination, the Tribunal is to determine that the proposed act is a future act that attracts the expedited procedure whereupon the act may be carried out."
In the reasons for judgment in the Bropho matter (at pp.9-10) there appears the following obiter dicta:
"I note that in Ward v. State of WA (1996) 136 ALR 557 at 576 Carr J, after acknowledging that the question was a difficult one, reached a conclusion that the extent of disturbance to the land or waters concerned is to be judged according to "the standard of reasonable people in the broader community". Although it is unnecessary for me to decide that question in this "appeal", I would make the following observations.
The common thread in ss237(a), (b), (c) is a claim to the holding of native title in relation to the land or waters to which the future act is sought to be directed. Under sub-s109(2) in conducting any inquiry the Tribunal must take account of the cultural and customary concerns of Aboriginal peoples. A claim to the holding of native title is a claim to communal group, or individual, rights or interests in relation to land or waters where the rights or interests (which include hunting, gathering, or fishing rights or interests) are possessed under traditional laws acknowledged, and traditional customs observed, by Aboriginal peoples. It follows that such a claim involves the cultural and customary concerns of the Aboriginal peoples.
Given that sub-s32(4) and s237 are concerned with a determination whether the right of a native title party to have negotiations in respect of those rights and interests conducted with the State, and having regard to the provisions of the Act as a whole, in particular s39, it would seem to follow that any assessment of the degree of disturbance to land or water to which a claim of native title relates must include consideration of the impact on the rights and
interests, including those of a usufructuary nature, assumed to be attached to the land under a claim of native title."
With respect, I agree that the inquiry to be made pursuant to s.237 is whether the future act gives rise to powers, the exercise of which would infringe s.237(a), (b) or (c). But in my view the Tribunal, in assessing those powers, is not obliged to confine its inquiry to the provisions of the Mining Act and the terms and conditions which that Act and the regulations made under that Act prescribe for exploration licences. It is entitled to take into account, as it did in these matters, the fact that the exercise of rights conferred by an exploration licence may be subject to specific restrictions. Those restrictions may be found either in the Mining Act itself (see s.24 for example) or in the Aboriginal Affairs Planning Authority Act or in the Aboriginal Heritage Act. The restrictions apply for the very purpose of protecting Aboriginal interests. In Cheinmora they apply because the onshore area is within an Aboriginal reserve and also because, as the Tribunal found, there were sites of particular significance within the area. In Dann no Aboriginal reserve was involved, but restrictions applied due to the existence of sites of particular significance. The restrictions on the exercise of the licensees' powers also arose from the administrative procedures established to implement the terms of the three principal pieces of legislation. This was the legal and factual context in which the Tribunal had to make its assessment. If, after examining the licensee's powers in that context, the Tribunal decided that it was unlikely that there would be interference or major disturbance of any of the types referred to in s.237(a), (b) or (c) then, in my view, it was lawfully carrying out the task which, by s.32(4) Parliament has entrusted to it.
On the question of the proper construction of s.237(c) I still hold the view which I expressed in Ward v. State of Western Australia (1996) 136 ALR 557. I differ, respectfully, with Lee J's construction of that sub-paragraph in the first of the two more recent cases referred to above. In my opinion, if the future act involves "major disturbance" to any land or waters concerned, it is not an "act attracting the expedited procedure". That is what s.237(c) says. Given such major disturbance, there is no need further to consider whether that disturbance would affect "... community life, or areas or sites of particular significance or cultural ties and traditional customs of the native title party ...". Those interests are protected by paragraphs (a) and (b). Paragraph (c) can be seen as protecting the native title holders from the obtrusiveness, upheaval or destruction of tranquillity and the like which normally is the consequence of major disturbance to land or waters. In that regard the interests of the native title holders are much the same as those (including of course Aboriginal people) who hold freehold title to land. The idea embodied in the expression "major disturbance" is not a complex one. It is an ordinary English term and, in my view, should be given its ordinary meaning, as understood by the whole Australian community, including Aboriginal people. If Parliament wanted it to have a special meaning it could easily have so provided.
If one may be permitted to test the application of such a construction by reference to the practical realities of the present matter, then that test shows that such a construction is consistent with reconciling the legitimate interests of the native title holder and the national interest in mineral exploration. In Cheinmora the nearest community (one permanent house) is approximately 10-15 kms from the nearest
onshore exploration licence area. The nearest community to the offshore exploration licence area is 120 kms away. In Dann the distance is some 30 kms to a community of 30-40 people in residence during the dry season. With due respect to Lee J, Parliament has not provided in s.32(4) that the Tribunal "... is to assess whether there are issues arising out of the material [before it] that should be resolved by negotiation between the parties, or by the Tribunal if the parties are unable to reach agreement in that regard". Parliament, in very clear mandatory terms ("must determine") has commanded the Tribunal to determine whether the future act interferes with or involves major disturbance of the type referred to in s.237. The native title party, even on such a literal construction, is treated more favourably than an ordinary freehold title holder faced with the grant of an exploration licence on his land. The native title holder has his community life and areas or sites of particular significance protected, plus his tranquillity. There is no fairly comparable provision to protect the tranquillity of an ordinary freeholder.
Mr McIntyre criticised portions of the reasoning in the Cheinmora matter on the basis that there was unnecessary and inappropriate reference to values which were European rather than those of the native title holders. He took me to page 931 of the Appeal Book in that regard. I do not consider that that criticism is fairly based. The Tribunal's reasoning accepted that even by the standards of the broader community, the activities permitted by the grant of an exploration licence could cause major disturbance in some contexts, including the context of a rural Aboriginal community. However, for the reasons which the Tribunal set out, it concluded that there was unlikely to be major disturbance to land. In my view, this alleged error of law has not
been made out.
Whether the Tribunal took into account irrelevant matters [Ground (d) in Cheinmora and Grounds (e)(f), and (g) in Dann]
There were differences in the expression of these grounds of appeal in the two matters. In Cheinmora, the error of law was identified as being a failure on the Tribunal's part to permit the "right to negotiate" provisions of the Act to have full effect as a "special right" by taking into account what were said to be the following irrelevant considerations:
the power of the Minister for Minerals and Energy to consent, under s.24(7)(a) to mining on Aboriginal reserves;
the power of the Minister for Aboriginal Affairs under the Aboriginal Affairs Planning Authority Act and Regulations to grant rights of access to Aboriginal reserves;
the right of the Aboriginal Lands Trust, under the Aboriginal Affairs Planning Authority Act and Regulations to be consulted concerning the issue of such permits to enter;
the power of the Minister for Mines to impose conditions on exploration licences on Aboriginal reserves;
the possibility that Aboriginal communities as distinct from the holders of native title or native title parties may enter into standard agreements with the holders of exploration licences in respect of Aboriginal reserves;
the fact that it is an offence under s.17 of the Aboriginal Heritage Act to destroy, excavate, damage, conceal or alter an Aboriginal site;
the existence of the Guidelines published to applicants for exploration licences; and
(viii)the finding that the grantee parties are likely to have discussions with the native title party and are likely to enter into an agreement relating to the avoidance of sites.
In the Dann matter, the errors of law were said to be that the Tribunal:
(d)took into account irrelevant matters, namely the effect of the Aboriginal Heritage Act and the Guidelines;
(e)found that the non-mandatory consultative approach suggested by the Guidelines should prevail over the right to negotiate granted to the native title party under Subdivision B of the Act;
(f)found that s.237(b) of the Act should be interpreted in the light of the penalty and defence provisions found in ss.17 and 62 of the Aboriginal Heritage Act; and
(g)concluded that the scheme of regulation provided by the Aboriginal Heritage Act was adequate to ensure that the act does not interfere with areas or sites of particular significance.
[I have not set out these grounds in full, but have paraphrased them to a degree].
The Government party agreed that, with the exception of the matter referred to in paragraph (v) above, the Tribunal took the above matters into account in reaching its determination.
The applicants submit that the Tribunal erred in law in doing so because these were considerations which were not logically or rationally related to the determination. This was because, so it was put, the determination concerned the "special right to negotiate" provisions of the Act. Once again reliance was placed on the preamble to the Act and reference was made to ss.31, 32(5), 33, 35, 38 and 41, being the sections which require negotiation.
It was common ground that if the Tribunal had taken into account irrelevant considerations then it would have erred in law. In Ward (at p.572) I characterised the Tribunal's task in relation to s.237 as amounting to a requirement that it make a
predictive assessment of whether the grant of the exploration licences and the exercise of rights conferred by those licences would or would not be likely to result in interference of any of the three relevant types. I confirm that view. In that context, I have examined each of the above matters which have been said to be irrelevant considerations. In my view, none of them was irrelevant to the making of a prediction in respect of any of the matters referred to in s.237. On the contrary, in my opinion they were all extremely relevant to what was likely to happen if these prospecting licences were granted. In relation to the matter referred to in sub-paragraph (v) the applicants seek to draw a distinction between Aboriginal communities on the one hand as distinct from holders of native title or native title parties on the other. In my opinion, the answer to that question is that there was nothing before the Tribunal by way of evidence to suggest that this was a relevant distinction in these matters.
A contention that in taking into account these matters the Tribunal somehow failed, as it was put, to permit the "right to negotiate" provisions of the Act to have full effect as a "special right" is not, in my opinion, made out. As I read the Act, Parliament sought to provide an expedited procedure where a particular grant is unlikely to "involve major disturbance to land or interference with the life of Aboriginal communities" (Hansard 16 November 1993 p.2880). This is in accordance with the second object expressed in s.3 of the Act. In my view, in having regard to the matters listed immediately above, the Tribunal was carrying out precisely the task which Parliament required of it. It looked at these matters as part of its obligation to assess the evidence before it, in accordance with what the law required. In my opinion this ground of appeal has not been made out.
As an alternative submission, Mr McIntyre submitted that the Tribunal's task was not to assess whether interference or major disturbance was "likely" in the sense of more likely than not, but in the sense of whether there was a "real chance" of interference or major disturbance. This was not in issue in Ward. In that case, counsel for the native title party contended that the matters were to be decided on a balance of probabilities but at the same time bearing in mind their seriousness. The case was fought on that basis. It is now necessary to consider whether a higher degree of satisfaction (that there will not be interference or major disturbance) is required. Given the exclusive wording of s.237 and the repetitive use of the words "does not" I am inclined to agree that the Tribunal's predictive assessment should be based on the proposition that interference or major disturbance may be "likely" even though it is not satisfied, on the balance of probabilities, that it will occur. A real chance that interference or major disturbance will occur is, in my opinion, inconsistent with the statutory requirement that it "does not" occur. I note, and derive some encouragement from the fact, that the Honourable Paul Seaman QC, Deputy President, came to the same conclusion in the matter of The Nyungah People [Applications WO95/29, WO95/32, WO95/36 and WO95/37, 30 April 1966, at pp.14-15]. An appeal from that decision gave rise to the recent decision of Lee J in Bropho. The appeal was dismissed, but in terms which conflict with what Mr Seaman then considered and I consider to be the correct approach to be taken by the Tribunal. Although the Tribunal in the present matters did not expressly refer to the "real chance" test, my assessment of its reasons in both matters is that that was the manner in which it approached its assessment. If the Tribunal felt that there was a real chance of interference or major disturbance it would not have expressed its conclusions so confidently.
Whether the Tribunal erred in law by failing to take into account relevant considerations [raised only in the Cheinmora appeal]
This ground was expressed in terms that the Tribunal had erred in law in failing to permit the "right to negotiate" provisions of the Act to have full effect as a "special right" by failing to take into account what was said to be the following relevant considerations:
the power of the Minister for Aboriginal Affairs under s.18 of the Aboriginal Heritage Act to authorise the excavation, damage, destruction, concealment or alteration of an Aboriginal site; and
the fact that the powers vested by the Mining Act, the Aboriginal Heritage Act and the Aboriginal Affairs Planning Authority Act are subject to ministerial control and the discretion of Ministers of State of the State of Western Australia.
Mr McIntyre, on behalf of the applicants, explained that this ground was an alternative ground.
Mr McIntyre submitted that the subject matter, scope and purpose of the Act were such as to imply a requirement that, if the Tribunal were to take into account the powers of State Ministers, then it should also take into account the unfettered discretion of those Ministers to act in such a way as adversely to affect native title rights and interests. The case was conducted on the basis that such matters were relevant considerations which the Tribunal was obliged to take into account. The Government party says that the Tribunal did take these matters into account. I was referred to passages in the Appeal Book at pp.923, 925, 930, 931 and 932.
My reading of the Tribunal's reasons for decision in each matter is that it made a very careful examination of the Ministerial powers conferred under the Aboriginal Affairs Planning Authority Act, the Aboriginal Heritage Act and the Mining Act. It also heard evidence about how, in practice, those Acts are administered. It found as a fact that due to the way in which those Acts are administered, the grantee parties would not be able to exercise their rights unless they entered into an agreement with the Aboriginal communities concerned. In so doing, the Tribunal must be found to have dismissed the prospect of Ministers exercising what the applicants called an "unfettered discretion" in a manner which would adversely affect the applicant's rights and interests. In my view, this ground of appeal, that the Tribunal failed to take into account these relevant considerations, fails.
In the Cheinmora matter there remained a further ground of appeal [Ground (h)] that the Tribunal had erred in law in making its decision against the preponderance of the relevant evidence. Mr McIntyre, although not formally abandoning this ground, said that he would not be "saying anything about this" and conceded that his client would need to succeed on other grounds. In those circumstances I took him to be informally abandoning the ground and the case was conducted upon that basis. Accordingly there is no need to deal with this ground.
Whether the Government party is required to establish that it had properly considered and applied the criteria relevant to a decision to give notice under s.29(4) [Ground (b) in Cheinmora]
The applicants submitted that it was a condition precedent to the exercise of the Tribunal's jurisdiction under s.32, that the Government party has given consideration to whether the act is an act attracting the expedited procedure before making a
statement to that effect in the notice given under s.29. The applicant further submitted that, in refusing the application to refer this question to the Federal Court, the Tribunal had failed to act in accordance with its duty to carry out its functions in a fair, just, economical, informal and prompt way in accordance with s.109(1) of the Act.
Mr McIntyre relied upon my decision in Walley v. Western Australia for this proposition and upon Scurr v. Brisbane City Council (1973) 1 ALR 420, a decision of the High Court of Australia upon which I relied in that case. In my view, both those cases are distinguishable from the present matters. Walley was concerned with the question whether the obligation on a Government party to negotiate in good faith with a view to obtaining the agreement of the native title parties has to be observed before an application may be made to the Tribunal for a determination under s.35 of the Act. The relevant provision [s.31(1)] is expressed in terms that "the Government party must" do certain things, including negotiate in good faith.
The present matter is one of construing s.29(4) in its context. Section 29(4) provides:
"Acts attracting the expedited procedure
(4)The Government party may include in the notice that it gives under this section a statement that it considers the act is an act attracting the expedited procedure."
I regard the wording of this section as being in marked contrast to the mandatory language of s.31(1). A proper construction of s.29(4) does not require, in my opinion, that before the Tribunal may embark upon its inquiry and determination, it be shown that the Government party has directed its mind to the criteria set out in s.237. All
that is required is that the Government party includes in its notice a statement that it considers the act is an act attracting the expedited procedure. In those circumstances, the statutory scheme is that if there is no objection from a native title party then the Government party may do the act. If there is an objection then it is for the Tribunal to make its predictive assessment and decide whether what is proposed is an act attracting the expedited procedure within the meaning given to that expression by s.237 of the Act. As Mr McIntyre conceded in oral argument, the Tribunal, by carrying out that task in these matters, has effectively "done the job" which, on his submission, it should have been satisfied (as a threshold jurisdictional issue) had been done by the Government party. The duplication involved in such a requirement reinforces my opinion that there should be no such implication read into s.29(4).
Conclusion
For the above reasons the appeal in the Cheinmora matter will be dismissed. The Dann matter will be remitted to the Tribunal for the limited purpose of considering whether there is likely to be direct interference with the community life of the native title holders although not necessarily interference which would be physical in its character or nature. Accordingly, orders will be made to that effect.
I certify that this and the preceding thirty-seven
(37) pages are a true copy of the Reasons for
Judgment of Justice Carr.
A/g Associate:
Date: 19 December 1996
Counsel for the Applicants: Mr G M McIntyre
Solicitors for the Applicants: In the Cheinmora matter, Mr M.O'Donnell;
In the Dann matter, Ms Lisa Wright
both of the Kimberley Land Council
Counsel for the Respondent: Mr G R Donaldson and Mr S J Wright
Solicitor for the Respondent: Crown Solicitor for the State of Western Australia
Date of Hearing: 5 November 1996
Date of Judgment: 19 December 1996
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