Little v Oriole Resources Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Little v Oriole Resources Pty Ltd [2005] FCA 506

NATIVE TITLE – appeal from National Native Title Tribunal - expedited procedure – future act – proposed grant of miscellaneous licence – objection application to Tribunal relying on lack of likelihood of major disturbance – whether second limb of s 237(c) of the Native Title Act 1993 (Cth) requires predictive assessment only of rights created without further reference to evidence – whether Tribunal erred in application of first limb of s 237(c) in not concluding right to create a mining camp necessarily involved a major disturbance – whether Tribunal erred in reference which it made to the history of mining and exploration in the general area of the future act – whether Tribunal erred in weight it placed on evidence of concerns of Aboriginal people

Native Title Act 1993 (Cth) s 29, 31, 32, 32(4), 169, 237, 237(c)
Native Title Amendment Act 1998 (Cth) (No.97 of 1998)

Mining Act 1978 (WA) s 91(3)(b)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 considered
Dann v Western Australia (1997) 74 FCR 391 applied
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1 cited
Little v State of Western Australia [2001] FCA 1706 applied
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Minister for Immigration & Multicultural Affairs, Re; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 cited
R v Ministry of Defence; Ex parte Smith [1996] QB 517 cited
R v Secretary of State for the Home Department; Ex parte Daly [2001] 2 AC 532 cited
R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 cited
Silver v Northern Territory of Australia (2002) 169 FLR 1 cited
Smith on behalf of Gnaala Karla Booja People v State of Western Australia (2001) 108 FCR 442 applied
Western Australia v Smith (2000) 163 FLR 32 applied
Young v Western Australia (2001) 164 FLR 1 cited

ALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE v ORIOLE RESOURCES PTY LTD and STATE OF WESTERN AUSTRALIA AND OTHERS
WAD 122 of 2004

NICHOLSON J
29 APRIL 2005
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 122 OF 2004

BETWEEN:

ALBERT LITTLE AND OTHERS
ON BEHALF OF THE BADIMIA PEOPLE
APPLICANTS

AND:

ORIOLE RESOURCES PTY LTD
FIRST RESPONDENT

STATE OF WESTERN AUSTRALIA AND OTHERS
SECOND RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

29 APRIL 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.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

WAD 122 OF 2004

BETWEEN:

ALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE
APPLICANTS

AND:

ORIOLE RESOURCES PTY LTD
FIRST RESPONDENT

STATE OF WESTERN AUSTRALIA AND OTHERS
SECOND RESPONDENT

JUDGE:

NICHOLSON J

DATE:

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Details
Case
[2005] FCA 506
Decision Date

CaseChat Overview and Summary

Little v Oriole Resources Pty Ltd was an appeal brought before the Federal Court of Australia against a determination by the National Native Title Tribunal. The Tribunal had decided that a proposed grant of a mining licence by the State was an act attracting the expedited procedure under the Native Title Act 1993. The appellants, Little, objected to the application of the expedited procedure in relation to the licence. The primary legal issues before the court were whether the Tribunal erred in law by failing to take into account a relevant consideration, specifically the likelihood of major disturbance to the land or waters concerned by the creation of rights under the licence. The appellants argued that the Tribunal was bound to find that the exercise of rights under the licence was likely to involve major disturbance. The court considered the interpretation of section 237(c) of the NT Act and whether the Tribunal had applied the correct legal principles. Ultimately, the court found that the Tribunal did not err in law, as it had appropriately considered the relevant factors and evidence. The court concluded that the Tribunal’s decision was not unreasonable and did not involve an error of law. The appeal was dismissed, and no order was made as to costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. There be no order as to costs.

Background

Background to the litigation

This is an appeal from a determination of the National Native Title Tribunal (‘the Tribunal’) constituted by the Hon EM Franklyn QC, Deputy President and given on 3 June 2004. The Tribunal decided pursuant to s 32(4) of the Native Title Act 1993 (Cth) (‘the NT Act’) that a proposed grant of Miscellaneous Licence L59/53 (‘the Licence’) under the Mining Act 1978 (WA) (‘the Mining Act’) to the first respondent (‘Oriole’) was an act attracting the expedited procedure under s 32 of the NT Act. The appeal is brought pursuant to s 169 of the NT Act. Oriole agreed to abide by the decision of the Court and did not appear at the hearing.BACKGROUND CIRCUMSTANCES The background circumstances appear in the reasons of the Tribunal as follows. On 21 May 2003, the second respondent (‘the State’) gave notice under s 29 of the NT Act of a future act, namely, the granting under the Mining Act of the Licence. The Licence was said to be for ‘mine site accommodation and associated facilities’ comprising 119.96 hectares to Oriole. The notice included a statement that the State considered the act to be an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the NT Act). An objection to the application of the expedited procedure in relation to the Licence was lodged on behalf of the applicants on 8 July 2003. The applicants’ application for determination of native title had been registered by the Tribunal on 4 October 1996. The land encompassed by the Licence is situated wholly within that claim area. The objection revealed that the applicants as objectors were relying only upon s 237(c) of the NT Act and that it would produce historical, anthropological, archaeological, genealogical, linguistic and environmental evidence in support of the objection. The objection was accepted by the Tribunal on 29 July 2003. PRINCIPAL RELEVANT STATUTORY PROVISION Section 237(c) of the NT Act is to be read in the context of s 237, which reads:‘237 A future act is an act attracting the expedited procedure if:(a)the act is not likely to interfere directly with the carrying on of the community or social activities 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 is not likely to 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 is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’THE LICENCE APPLICATION In Oriole’s statement of contentions in support of the application for the Licence, the circumstances of the application for the Licence were described as follows: ‘2.On 12 January 2000 Oriole lodged the Licence Application in respect of an area of 120.00 hectares for the purposes of Minesite Accommodation & Associated Facilities prescribed under Regulation 43B (n) of the Mining Regulations 1981 (as amended).3.Mt Gibson Gold Pty Ltd (“Mt Gibson”) a wholly owned subsidiary of Oroya Mining Limited – owner and operator of the Mount Gibson Gold Project – is beneficial owner of the Licence Application applied for by Oriole, a related entity of Pacmin Mining Corporation Limited (“Pacmin”)4.On 4 February 2000 Pacmin filed a statement with the Mining Registrar at Mount Magnet in compliance with Regulation 37(3) of the Mining Regulations and in support of the Licence Application stating that:(a)The licence once granted will be for the sole purpose the mining camp infrastructure associated with the Mount Gibson Gold Mine;(b)This campsite consists of transportable unit accommodation structures, transportable house structures and associated facilities;(c)These facilities have been in place for a number of years and associated with the Mount Gibson Gold Mine operations.5.Reference in the Regulation 37(3) statement by Pacmin to the existing facilities having been in place for a number of years is a reference to the land the subject of Miscellaneous Licence 59/12 comprising 8.75 hectares, granted on 26 August 1986 for the purposes of Minesite Accommodation & Associated Facilities and currently registered in the name of Mt Gibson.6.The ground applied for the subject of the Licence Application includes the whole of the land the subject of granted Miscellaneous Licence 59/12.7.Miscellaneous Licence 59/12 contains the substantive mining camp and accommodation facilities to support recommissioning of operations within the existing defined resource areas the subject of previous mining operations. Current in situ facilities shall be adequate and will accommodate up to 106 personnel.’The same statement described the usage of the Licence as follows:‘8.The Licence application is required for the purposes of associated support infrastructure including a possible powerline easement, access tracks for construction of adequate protective fire break protection in compliance with the Bushfires Act 1954 and rubbish disposal in compliance with Health Act 1911 and planning By-laws of the Local Authority.…10.Mt Gibson does not propose construction of any further substantive infrastructure or other works within the boundaries of the Licence Application other than those works particularised in paragraph 8 above.…’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J
More fundamentally, however, the Wednesbury unreasonableness principle is confined to cases involving the exercise of a statutory discretion: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [39] – [45] per Gleeson CJ and McHugh J, at [124] – [127] per Gummow J, Hayne J at [159], and Callinan J at [183] – [187] not deciding, and cf. Gaudron and Kirby JJ at [100]. See also Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [67] – [69] per McHugh and Gummow JJ, and at [142] per Kirby J. This case does not involve the exercise of a statutory discretion so that the principle of unreasonableness has no role to play. It is incapable of raising a question of law. CONCLUSION It is important that it be understood that the grounds of appeal are required by s 169 of the NT Act to bring to this Court a question of law. It is only if the Tribunal is in error of law that this Court can interfere with the conclusion which it reached. It is for the Tribunal to find the facts and to weigh those facts as found. In the absence of error of law, it is not for this Court to substitute its view for the view of the Tribunal, provided the Tribunal did not fall into error of law and in particular took into account relevant considerations and did not take into account irrelevant considerations. For the reasons set out above, I do not consider that the Tribunal has fallen into error of law in terms of any of the grounds of appeal. Accordingly, the appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Turning to the interests of the Australian community, the Tribunal concluded as follows:‘[27] On the available evidence I am satisfied that the Australian community as a whole, in the absence of any evidence of the concerns (if any) and views of the Aboriginal people in the locality, would consider the grant of the Licence and the exercise of the rights created thereby to be no more than another aspect of the conduct of the Mining and Exploration Industry in an area, presently and over many years the subject of considerable mining and exploration activity and that whilst the exercise of such rights will result in or involve disturbance to the land, in all of the circumstances it is not likely to involve “major” disturbance or to create rights whose exercise is likely to involve major disturbance in the ordinary meaning of that expression.’FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION: INTERPRETATION OF s 237(c) The first ground of appeal raises the issue of the interpretation of s 237(c) of the NT Act. It contends that the Tribunal erred in law because it failed to take into account a relevant consideration, namely, that it found that the grant of the Licence would create rights whose exercise was likely to involve major disturbance to the land or waters concerned. The applicants contend that the second limb of s 237(c) is to be understood as attaching the predictive element to the creation of rights but not to the exercise of them. It is submitted that the paragraph requires reference only to rights that, if exercised, are likely to involve major disturbance. The applicants do not dispute that there is an element of predictive assessment associated with the second limb but argue that such assessment is required to be applied only to the issue of the creation of rights rather than their exercise. It is submitted that such being the case and because the Licence would create rights to building a mining camp, the exercise of such rights must necessarily have been found by the Tribunal to be likely to involve major disturbance. In making this submission, the applicants accept that the Tribunal should have considered the rights created in the context of any applicable regulations or conditions minimising issues of disturbance to the land or waters concerned: Western Australia v Smith (2000) 163 FLR 32 at 47, at [26]. Nevertheless, it is submitted that the right to build a mining camp, even when subject to such regulations or conditions, is likely to cause a major disturbance so that the Tribunal was bound to make a finding to that effect. Furthermore, the applicants submit that there is no authoritative determination of the manner in which the second limb of s 237(c) should operate and that to the extent that the authorities comment on the limb, they are not decisive of that issue. The authorities will be referred to below. The approach which the Tribunal should have taken to the question of rights is said by the applicants to still be governed by similar principles to those set out by the Full Court of the Federal Court in Dann so far as the reference to the nature of the rights granted is concerned.