David Daniel and Others on Behalf of the Ngarluma and Yindjibarndi people/Western Australia/Raymond Jt Butler and Stanley a MacDonald
[2000] NNTTA 294
•11 August 2000
| NATIONAL NATIVE TITLE TRIBUNAL |
David Daniel and Others on behalf of the Ngarluma and Yindjibarndi people/Western Australia/Raymond JT Butler and Stanley A MacDonald, [2000] NNTTA 294
(11 August 2000)
| Application No: WO99/197 |
| IN THE MATTER of the Native Title Act 1993 (Cth) |
| - and - |
| IN THE MATTER of an inquiry into an expedited procedure objection application |
| David Daniel and Others on behalf of the Ngarluma and Yindjibarndi people (WC99/14) (native title party) |
| - and - |
| The State of Western Australia (Government party) |
| - and - |
| Raymond JT Butler and Stanley A MacDonald (grantee party) |
| DECISION THAT TRIBUNAL HAS NO JURISDICTION TO CONDUCT AN INQUIRY WHERE THE GOVERNMENT PARTY HAS GRANTED A MINING TENEMENT |
Tribunal: The Hon C. J. Sumner, Deputy President
Place: Perth
Date: 11 August 2000
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – Government party intends to grant the tenement if satisfied that native title is extinguished – Tribunal has no jurisdiction if the Government party grants the tenement.
Legislation:Native Title Act 1993 (Cth) ss 25, 26, 29, 32, 35, 38, 39, 75, 77, 139(b), 145, 148(a), 233(1)
Cases:Western Australia v Ward [2000] FCA 191; 170 ALR 159
Mineralogy Pty Ltd v National Native Title Tribunal and Others (1997) 150 ALR 467
Walley v Western Australia (1996) 67 FCR 336; 137 ALR 561
Phelan v Phelan 1951 NSW Vol 68 The Weekly Notes 73
Associated Goldfields NL and Alkane Exploration NL, (NNTT NNF 94/1, 6 February 1995)
Western Australia/Rita Elliott/Bartal Pty Ltd, NNTT WO99/5, Hon EM Franklyn QC, 9 August 1999
Brownley/Western Australia/Heron Resources NL, NNTT WO97/564 and Others, Hon CJ Sumner, 29 April 1999
Reggi Tataya & Ors/Western Australia/Rio Tinto Exploration Pty Ltd, NNTT WO99/52, Hon CJ Sumner, 27 September 1999
REASONS FOR DECISION
Background
On 2 June 1999, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the NTA’) of its intention to do a future act; namely to grant exploration licence 47/956 to Raymond JT Butler and Stanley A MacDonald (‘the grantee party’) over an area of 28.79 square kilometres of land situated 62 kilometres easterly of Roebourne in the Shire of Roebourne. The notice included a statement that the Government party considered that the grant attracted the expedited procedure. On 30 September 1999, David Daniel, Tim Kerr, Woodley King, Daisy Moses, Kenny Jerrold, Bruce Monadee, James Solomon, Les Kicks, Jill Churnside, Michelle Adams, Trevor Solomon, Judy Albert, Bruce Woodley, Mary Walker, Roger Barker, David Walker, Linda Ryder and Jimmy Horace, representing the Ngarluma and Yindjibarndi people (Claim number WC99/14) (‘the native title party’) made an expedited procedure objection application to the Tribunal.
On 23 November 1999 and 25 February 2000, in accordance with its usual procedures, the Tribunal gave directions to the parties to produce contentions and documents in preparation for an inquiry. On 3 March 2000, the Full Federal Court handed down its decision in Western Australia v Ward [2000] FCA 191; 170 ALR 159 (‘Ward’). This decision raised the question of whether the Tribunal still had jurisdiction to conduct an inquiry as the possibility existed that the grant was not a future act because native title had been extinguished. In summary, the question arises because Ward decided that native title rights and interests are wholly extinguished over areas of:
Western Australian pastoral leases issued after 1934 which were enclosed (for example by fencing) or, where there is no enclosure, which were otherwise improved;
Western Australian pastoral leases issued before 1933 which were both enclosed and improved; and
mining leases and general purpose leases issued under the Mining Act 1978 (WA).
[NOTE: On 4 August 2000, the High Court gave leave to the native title party to appeal certain aspects of this decision including the question of prior extinguishing acts.]
On 20 April 2000, the question of jurisdiction having been raised by the grantee party, the Tribunal gave directions to the parties for the exchange of contentions on the impact of the Ward decision on the conduct of right to negotiate inquiries (that is, expedited procedure objection application and future act determination application inquiries (NTA ss 75, 139(b) and 253)) and in particular whether the objection application in this matter should be dismissed on the basis that native title had been extinguished. The Government party contended that the area of land to be covered by the exploration licence comprised portions of two pastoral leases granted under the Land Act 1933, which had been wholly enclosed by either being fenced or otherwise contained by natural boundaries. It then contended that the decision in Ward meant that native title had been wholly extinguished in relation to the land; that there was no future act because a future act is one which affects native title (NTA s 233); and that the objection application should be dismissed. The native title party (represented by the Aboriginal Legal Service of Western Australia (Inc)) contended that:
the legal position following Ward was uncertain and the subject of an application for special leave to appeal to the High Court. Even if there were enclosures as alleged by the Government party, the High Court may find that native title has survived;
the Tribunal has no jurisdiction to make a decision about extinguishment of native title as this is the same issue as is currently before the courts;
the facts about extinguishment have not been established and the Tribunal should not make a decision about them in advance of a Federal Court determination in relation to the relevant native title claim (WC99/14); and
the Tribunal should either decline to dismiss the objection application or defer its decision until the High Court has clarified the legal position.
After the filing of these contentions the WA Government clarified its position in relation to mining tenements where in its view native title had been extinguished because of the Ward decision. On 16 June 2000, the Premier (the Hon Richard Court) announced that the Government party had decided to process mining title claims on lands where native title had been extinguished and not put them through the native title processes. On 20 June 2000, the Tribunal was formally advised by the Crown Solicitor’s Office that the Government party:
would proceed to grant tenements where it is satisfied that native title has been extinguished by the grant of historical mining tenure, or by enclosures or improvements to pastoral leases granted after 1934, or enclosures and improvements to older pastoral leases;
had commenced investigating historical mining tenure and pastoral lease improvement information in relation to a number of matters (including WO99/197) but did not yet have sufficient information to determine whether native title had been extinguished; and
sought an adjournment of proceedings until 12 July 2000, to enable it time to advise the Tribunal which tenements it would be granting.
Counsel for the Government party (Mr Joshua Thomson) confirmed this policy at a directions hearing on 22 June 2000 and further advised that if the Government party reaches the view that it does not know whether native title has been extinguished it would continue to participate in the NTA processes. The following more formal guidelines were issued by the Department of Minerals and Energy on 7 July 2000 confirming this policy.
‘Guidelines
Granting of Mining Tenements where Native Title has been extinguished by previous Tenure
The State’s policy is that to ensure validity of title, applications for mining tenements under the Mining Act 1978 require submission to the future act processes under the Native Title Act (NTA) unless native title has been extinguished by previous tenure.
Cases where native title is held to be extinguished are:
A.According to some earlier Court decisions, and in accordance with the NTA, native title has been extinguished by:
(a)freehold;
(b)exclusive leases as defined in the NTA and granted before 23 December 1996;
(c)scheduled interests detailed in the NTA and Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 granted before 23 December 1996; and
(d)public works commenced before 23 December 1996.
Mining tenement applications over such tenure are granted without reference to the NTA
B.According to the Full Federal Court decision in the Miriuwung Gajerrong appeal case, handed down in March 2000, native title has also been extinguished by:
(a)Western Australian pastoral leases * or those parts of pastoral leases which have been:
(i)enclosed and improved if the lease was granted prior to 1933;
(ii)enclosed or improved if the lease was granted after 1934.
*this may not apply to Aboriginal owned pastoral leases
(b)the grant of mining leases and general purpose leases under the Mining Act 1978; and
(c)the extensive public work of the Ord Irrigation Scheme and the large scale works under the Argyle (Diamond) State Agreement Act.
C.Based on the Full Court reasoning and comparison of the characteristics of the leases granted under the 1978 Mining Act and those granted under the Mining Act 1904, the State also considers that native title has been extinguished by gold mining leases granted under the 1904 Act.
In June 2000, the State Government approved a new policy which enables the granting of mining tenements without reference to the NTA processes in cases where it can be demonstrated from available evidence that native title has been extinguished based on the Full Federal Court reasoning in the Miriuwung Gajerrong appeal case.
Mining tenement applications will be considered by the Department for grant on the basis of the Full Federal Court decision without reference to the NTA and priority in processing will be afforded where the applicant:
· provides a plan showing that the application lies totally within area/s of previous lease/s granted under the Mining Act 1904 or the Mining Act 1978 and proof that the previous lease/s were granted prior to the commencement of the NTA on 1 January 1994; or
· demonstrates that the application lies wholly within an area of a pastoral lease which had been:
i)enclosed and improved if granted prior to 1933; or
ii)enclosed or improved if granted after 1934
by providing -
-a plan showing evidence that the entire area of the tenement application is within an area which itself was enclosed by fencing or natural features (eg a river, a mesa or a ridge);
-evidence that the fence existed before 1 January 1994;
-details of ownership and creation of the lease and
-evidence of improvements and enclosure if the pastoral lease was granted prior to 1933 and the enclosure did not exist after the commencement of the Land Act 1933.
The evidence in respect of pastoral leases can be in the form of:
- a statutory declaration by the pastoral lessee;
- plans showing the location of enclosure and or improvements provided that there is also evidence that these existed prior to 1 January 1994; or
- any other verifiable information.
Note: Each case will be examined on its merits.
Excision of Areas of Reserved or Unallocated Crown Land
Native title may exist over areas of reserved or unallocated Crown land within an area comprising a tenement application. In these cases DME will consider a request by the applicant for the grant of the tenement subject to the excision of such areas.
Applications submitted to NTA processes
Where it cannot be satisfactorily demonstrated that native title has been extinguished, the application will be referred to the appropriate NTA process.’
On 22 June 2000, the Tribunal adjourned the directions hearing until 12 July 2000 (and later to 18 July 2000) to enable the Government party to investigate the extinguishment issue. The Tribunal also gave directions for the parties to exchange contentions on whether the Tribunal would have jurisdiction to conduct an inquiry if the Government party grants the tenement. Subsequently, at the request of the Government party, the matter was further adjourned to 14 August 2000 because further time was required to complete the investigations on extinguishment and decide whether it intended to grant the tenements. To date the Tribunal has not been informed if any of the tenements have been granted.
During the course of the preliminary proceedings for WO99/197 the Ward extinguishment issue was raised in a number of other matters. The directions given on 22 June 2000 in relation to WO99/197 were also given in relation to the following expedited procedure objection applications (involving the grant of exploration licences):
·WO99/880 Gordon Yuline & Others on behalf of the Nyiyparli People (WC99/4) and De Grey Mining NL (E52/1470);
·WO99/93 Violet Drury & Others on behalf of Nanda (WC96/111) and Giralia Resources NL (E09/980);
·WO99/71 Wilfred Hicks (WC98/40) and Legend Mining NL (E47/932); and
·WO99/285 Wilma Freddie (WC99/24) and Kim Robinson (E53/809);
and in relation to the following future act determination applications (involving the grant of mining leases):
·WF00/001 WA Government, native title party Richard Evans (WC95/1) and WMC Resources Ltd (M36/450);
·WF00/002 Anaconda Nickel Limited; Wongatha people (WC99/1); Minister for Mines (WA) (M39/637, M39/714);
·WF00/003 Murrin Murrin East Pty Ltd; Wongatha people (WC99/1); Minister for Mines (WA) (M39/685, M39/686, M39/692, M39/715, M39/716);
·WF00/004 Murrin Murrin Holdings Pty Ltd and Glenmurrin Pty Ltd; Wongatha people (WC99/1); Koara people (WC95/1); Minister for Mines (WA) (M37/933, M39/651, M39/671, M39/672, M39/683, M39/684, M39/708, M39/723); and
·WF00/005 Delta Gold Ltd; Wongatha people (WC99/1); Minister for Mines (WA) (M39/429)
On 29 June 2000, a similar direction was given in relation to expedited procedure objection application WO99/361 (Albert Little & Others on behalf of Badimia WC96/8 and Bruce Robert Legendre, Wedgetail Resources Pty Ltd, Voermans Geological Services Pty Ltd).
The contentions filed in each of these matters were considered by the Tribunal in making its decision on the jurisdictional issue. Written contentions were filed on behalf of native title parties by:
the Aboriginal Legal Services of Western Australia (Inc) (‘the ALS’);
the Goldfields Land Council (‘the GLC’); and
the Yamatji Barna Baba Maaja Aboriginal Compensation (‘Yamatji’);
and on behalf of the Government party by the Crown Solicitor’s Office. The grantee parties relied on the Government party’s submissions. At the request of the GLC a hearing was conducted on 6 July 2000. Mr Gerhard Beukes appeared for the ALS; Mr Phil Vincent and Ms Harriet Ketley for the GLC; Mr David Ritter for Yamatji; Mr Joshua Thomson and Ms Rhonda Howlett for the Government party; and Mr Leigh Rossetto of Lawton Gillan, solicitors for the grantee party in WO99/361.
Does the Tribunal have jurisdiction if the Government party has granted the tenement?
There are two jurisdictional questions which could arise in the circumstances before the Tribunal.
Does the Tribunal have jurisdiction to conduct an inquiry if the Government party grants the tenements?
Must the Tribunal satisfy itself that native title has not been extinguished because of the Ward decision or otherwise before it assumes jurisdiction? Related to this is the question whether the Tribunal should assume jurisdiction if it is uncertain (either because of the uncertain state of the law or facts) about whether native title has been extinguished. The effect of the contentions made by the ALS referred to above in paragraph (3) is that the Tribunal should assume jurisdiction in that situation. Whether this is correct would involve a consideration of the decision in Mineralogy Pty Ltd v National Native Title Tribunal and Others (1997) 150 ALR 467.
Although the written contentions in some cases covered both questions, the directions were clear that it was only the first question which the Tribunal was concerned with at this stage. With the agreement of the parties, the hearing proceeded on that basis. The second question may arise if the Government party decides not to grant the tenements but to continue under the right to negotiate provisions of the NTA.
It is now well established that the Tribunal must be satisfied that it has jurisdiction before it conducts a right to negotiate inquiry and makes a determination. (Mineralogy Pty Ltd v National Native Title Tribunal & Others (1997) 150 ALR 467; Walley v Western Australia (1996) 67 FCR 336; 137 ALR 561). If it is not so satisfied it must dismiss the application under s 148(a) of the NTA, which says that the Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if the Tribunal is satisfied that it is not entitled to deal with the application.
The first contention to be dealt with was made by the GLC. It argued that the Tribunal is faced with a hypothetical situation in that the Government party has not yet granted any of the tenements and that the Tribunal should not make a decision in advance of the tenements being granted. I accept that the Tribunal cannot make a final decision until, in a particular case, there is evidence that the tenements have been granted. However, this is not a case where the Tribunal is making a decision without any factual basis. The background facts set out above clearly establish that the Government party has a policy to grant tenements where it is satisfied that native title has been extinguished. Because of this policy the Tribunal decided to deal with this preliminary jurisdictional issue in advance of the Government party actually making any grants. This has the advantage of dealing with the issue more expeditiously and ensuring that the parties are aware, in advance, of the Tribunal’s position. An early decision may also be of advantage to any native title party that wishes to challenge the Government party’s decision in court proceedings. In my view it is perfectly appropriate for the Tribunal as an administrative body to make a ruling on this issue in advance of the actual grants being made. The GLC further argued that by making a ruling now, the Tribunal would be condoning the Government party from withdrawing from the right to negotiate process and condoning what it contends is an unlawful act. It is not the Tribunal’s role to determine the validity or otherwise of any grants made by the Government party based on Ward extinguishment. Naturally, the Government party is of the view that what it intends to do is lawful and in accordance with the law enunciated in Ward. By making a decision on the narrow issue of whether it has jurisdiction if the Government party grants the tenements, the Tribunal is not making any statement about the validity or appropriateness of the Government’s actions. However, it is clear from the background facts set out above that the Government party has established guidelines which require it (and grantee parties) to give careful consideration to whether or not native title is extinguished in any particular case.
The second set of contentions made by native title parties is based on the specific provisions of the NTA. Section 233(1) defines a future act of the kind under consideration here as one that takes place on or after 1 January 1994 and which validly affects native title in relation to the relevant land or waters to any extent. For the purpose of making a decision on the point at issue I assume that the grant of the tenements under consideration (i.e. exploration licences and mining leases) are future acts. The Government party’s argument is, of course, that native title has been extinguished, there is no future act because native title is not affected and it is free to make the grants. The Tribunal is not required to make a decision on the extinguishment issue for the purpose of deciding the point before it. It may arise in future if the Tribunal is called on to deal with the second question outlined in paragraph (6) above. The GLC argues that there is nothing in the definition of a future act which restricts it to an act which is not yet done. Even though an act, such as the grant of a mining tenement, may have already been done, it remains a future act if it comes within the definition in s 233(1). The GLC then argues that the right to negotiate provisions are designed to ensure the validity of future acts as defined. Section s 25 of the NTA says that Subdivision P (of Part 2, Division 3) applies to certain future acts and that before the future act is done, the parties must negotiate. Section 26 more specifically defines the future acts to which Subdivision P applies. There is no doubt that the grant of a prospecting or exploration licence or a mining lease under the Mining Act (WA) falls within Subdivision P. The GLC’s argument is that Subdivision P deals with the type of future act under consideration in these proceedings, and that the right to negotiate provisions apply and should be followed even if the future act has been done.
The Government party submitted that the question of jurisdiction was not determined in this case by s 233 of the NTA but rather by reference to ss 38 and 39 (in the case of a future act determination application) and s 32 (in the case of an expedited procedure objection application). It argued that the nature of the determination which the Tribunal is empowered to make demonstrates that Parliament intended the determinations to only relate to acts which had not taken place. Section 38(1) specifies the type of future act determinations available to the Tribunal being that the act, ‘must not be done’ (s 38(1)(a)); ‘may be done’ (s 38(1)(b)) and ‘may be done subject to conditions’ (s 38(1)(c)). The Government party also relied on s 39 which sets out the criteria which the Tribunal is required to take into account in making a determination under s 38. The Tribunal is required to consider the effect of the act on the enjoyment of native title rights and interests and other important matters of Aboriginal concern such as their way of life, culture and traditions, the development of their social, cultural and economic structures, freedom of access and sites of particular significance. The NTA contemplates an inquiry into these matters prior to the grant being made so that the effect of the future act on these matters can be properly taken into account in deciding whether the grant can be made or whether conditions to ameliorate any adverse effect on Aboriginal interests should be imposed. There would be little point in a comprehensive inquiry of this kind once the tenement has been granted. The Government party also said that the right to negotiate provisions of the NTA (both these requiring negotiation and inquiry and determination) are designed to establish whether the future act may or may not be done. Section 25(2) says that before the future act is done, the parties must negotiate with a view to reaching an agreement about the act and s 25(3) says that if agreement is not reached an arbitral body (or a Minister) will make a determination about the act instead. In other words, the Government party says that because the Act specifically contemplates negotiations occurring ‘before the future act is done’, it follows that any proceedings subsequent to the negotiations which resolve the issue between the parties can only take place if the act has not already been done.
The Government party contends that similar considerations apply to expedited procedure objection applications. Section 32(4) says that if the arbitral body determines that the act attracts the expedited procedure then ‘ the Government party may do the act’. If the determination is that the expedited procedure is not attracted the normal negotiation procedure in s 31(1) applies (s 32(5)). This means that the process of negotiation and in the absence of agreement the determination process provided for in ss 38 and 39 of the NTA operate, again to determine if the act may be done. In my view the Government party’s arguments (principally based on the terms of ss 38 and 32(4)) are to be preferred. The statutory provisions make it clear that the Tribunal only has jurisdiction to make a determination before the act has been done by the Government party. I acknowledge that, if native title is affected, the grants will be future acts as defined in s 233, but this is not determinative of the issue. The inquiries are to decide if the acts may be done in the future and presuppose that they have not already been done.
Although the provisions of the NTA are in my view clear, there are a number of other factors which support the conclusions I have come to. First, there is no power given to the Tribunal, by the NTA, to determine that a future act already done or to be done is invalid and even if the Tribunal thought the grant to be invalid, there is no power to prevent the Government party from making a grant nor to prevent the grantee party exercising its rights under it. Second, if the Government party makes the grant, either the Government or grantee party can withdraw any application they have made for a future act determination under s 35 of the Act (s 35(2)). If this happened there is nothing the native title party could do to insist that the Tribunal proceed to conduct an inquiry and make a determination. Third, if a determination is made that the expedited procedure is not attracted (s 32(5)) the parties are required to negotiate in good faith in accordance with s 31(1)(b). It would be futile to conduct an inquiry which resulted in a requirement for negotiations which presumably the Government and grantee parties would not participate in because the grant had already been made. These factors reinforce my conclusion that Subdivision P only applies before the future act is done by the Government party. Had Parliament intended otherwise, the NTA should have contained provisions to clarify the practical difficulties outlined above. The GLC sought to add weight to its contentions by submitting that there would be considerable utility in conducting an inquiry, making a determination and publishing reasons. First, it said that any Tribunal findings (including findings about conditions to be imposed on a grant) would have persuasive force with the Government party in its future dealings with the tenement. Second, it said that Tribunal findings would assist the Federal Court or other courts to properly consider any application by a native title party for injunctive or other relief if the Government party grants the tenements. In my view neither of these factors are reasons for proceeding with the inquiry. It would remain a futile exercise. The Government and grantee parties would probably not participate in the inquiry and not regard themselves as bound by any findings of the Tribunal made after the tenement was granted. Any findings of the Tribunal are unlikely to influence an application for relief to the Federal Court even if a determination was made before the matter came before the Federal Court. In reality, if a native title party wishes to seek an injunction from a court to prevent a grant being made or the exercise of rights under it, this would need to be done immediately upon the native title party becoming aware of the Government party’s intentions and well before the Tribunal had made any determination.
The ALS contended that ss 75 and 139(b) of the NTA determine the question of jurisdiction. Section 139(b) is expressed in mandatory terms and says that the ‘Tribunal must hold an inquiry’ into an application covered by s 75 [and accepted by the Tribunal under s 77]. The ALS relied on the case of Phelan v Phelan 1951 NSW Vol 68 The Weekly Notes 73 (at 75) to support the proposition that where a court has jurisdiction when proceedings are instituted it has jurisdiction to conclude the matter. Whatever the situation may be generally at common law or under other legislation the express terms of the NTA are a complete answer to this submission. Section 148(a) empowers the Tribunal to dismiss an application, at any stage of an inquiry relating to the application if it is satisfied that it is not entitled to deal with the application. Yamatji argued that the Tribunal acquires jurisdiction to inquire into an expedited procedure objection application when a s 29 notice is given by the Government party and that s 32 (which deals with the outcomes of an expedited procedure inquiry) does not sanction the grant of the tenement prior to the conclusion of the inquiry. It is clear from the Federal Court decisions in Walley and Mineralogy (cited above) that the giving of a s 29 notice and the acceptance of a right to negotiate application by the Tribunal under s 77 are not the only pre-conditions to the Tribunal assuming jurisdiction. In Walley the Federal Court (ALR 571) disagreed with the view of Olney J sitting as a Deputy President of the Tribunal in Associated Goldfields NL and Alkane Exploration NL, (NNTT NNF 94/1, 6 February 1995) (ALR 571). Olney J had held that the authority of the Tribunal to make a determination in a future act determination application was dependent upon first, the application for a determination being made and accepted and, second, upon the absence of an agreement in accordance with s 34 [of the NTA prior to amendment]. This is no longer the law. It is now clear that jurisdiction will not exist if:
the s 29 notice was not properly given (Walley ALR at 574);
a s 35 application was made before the expiry of 6 months from the date of the s 29 notice (Walley ALR at 571);
the Government or grantee party have not negotiated in good faith as required by s 31(1)(b) (Walley ALR at 576-577);
a person ceases to be a native title party (s 30(2) NTA; Western Australia/Rita Elliott/Bartal Pty Ltd, NNTT WO99/5, Hon EM Franklyn QC, 9 August 1999); and
the act is not a ‘future act’ covered by the right to negotiate provisions (Mineralogy at 476).
It is clear that any of the above issues can arise after acceptance of a right to negotiate application and if they do arise the Tribunal must examine them and satisfy itself about jurisdiction. The mandatory obligation to conduct an inquiry expressed in s 139(b) only arises if the Tribunal has jurisdiction to conduct it. If it does not, s 148(a) makes it clear that the application must be dismissed. Section 148(a) gives statutory effect to the decisions made in Walley and Mineralogy. There can be no doubt that questions of jurisdiction may arise and must be dealt with at any stage of the inquiry.
My decision is consistent with previous decisions of the Tribunal in Brownley/Western Australia/Heron Resources NL, NNTT WO97/564 and Others, Hon CJ Sumner, 29 April 1999 and Reggi Tataya & Ors/Western Australia/Rio Tinto Exploration Pty Ltd, NNTT WO99/52, Hon CJ Sumner, 27 September 1999. Both those matters involved a situation where the Tribunal failed to advise the Government party that an objection application had been lodged and the Government party granted the tenements. The GLC and ALS sought to distinguish these cases from the present ones. First, they said that the factual situation was different in that in those matters the Government party was not actually participating in the proceedings (and had no knowledge of them) when it made the decision to grant the tenement. Further, they said that the dismissal was for procedural, rather than substantive reasons and that there was no issue of extinguishment raised in which the Tribunal was asked to endorse one view of legal extinguishment over another. While acknowledging the different factual position, I consider that the principles enunciated in those cases are equally applicable here. The Tribunal said (Brownley at 6-7) that once the act has been done, there is nothing to inquire into. The situation is the same as if the Government party had declined in the first place to give a notice under s 29 and subject an act to the right to negotiate provisions of the NTA. In both cases the question of validity would need to be decided by a court. I have also made it clear above in paragraph 8 that in these proceedings the Tribunal is not expressing a view on the extinguishment issue. Second, the GLC argued that Brownley and Tataya could be distinguished from the present case in that they were both decisions made under the NTA prior to its amendment. Prior to its amendment s 26(1) spoke of a future act which the Government party ‘proposes …. to do’. The amended NTA does not use these words. The decision in Brownley was based on the fact that there was no longer a future act which the Government party proposed to do and should not be followed, the GLC argued. In my view the change in wording in the amended Act does not affect the position. Although significantly recast, the basic principles of the right to negotiate procedures remain substantially in tact under the amended Act. The provisions of the NTA referred to above which determine the issue are the same under both the amended and unamended Acts.
Finally, the native title parties contended that I should refer the question of law to the Federal Court. This, it was argued, would enable the Federal Court to decide the question of jurisdiction, the validity of any grant made by the Government party and to take appropriate action if the act were found to be invalid. Section 145 of the NTA says that the Tribunal may, on its own initiative or at the request of a party, refer a question of law arising in an inquiry to the Federal Court for a decision. There are a number of reasons why it is inappropriate to refer the matter to the Federal Court. First, any party aggrieved by the decision can appeal to the Federal Court (s 169) and in all probability have the matter decided more expeditiously than by a referral. Second, the question of law which arises in these proceedings is a narrow one. Even if it could be argued that the issue of extinguishment is a question of law which arises in the inquiry (and there must be some doubt whether at this stage it has arisen) referral would be an ineffective way for the issue to be resolved. In the normal course of events it would take some months to resolve and could not lead to the native title party obtaining any relief from or redress for the Government party’s actions. It seems to me that if the native title parties wish to have these issues comprehensively dealt with they should seek to do so by taking appropriate proceedings in the courts, where binding decisions can be made. They are in the wrong forum to obtain the remedies they seek. The Government party argued that the issue of jurisdiction does not give rise to a question of law ‘arising in an inquiry’ as the inquiry does not commence until the question of jurisdiction is resolved. There was, therefore, no power to refer the jurisdictional question of law to the Federal Court. It is not necessary to decide this issue as I have decided that referral is inappropriate in any event. However, I would be surprised if the power to refer is limited in the way suggested.
Decision
The decision of the Tribunal is that the Tribunal has no jurisdiction to conduct a right to negotiate inquiry after the Government party has granted the tenement and that an application should be dismissed pursuant to s 148(a) of the NTA if the tenement is granted.
Hon CJ Sumner
Deputy President
11 August 2000
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