IN THE MATTER of an inquiry into an expedited procedure objection application
Harvey Murray on behalf of the Yilka Native Title Claimants (WC08/5) (native title party)
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The State of Western Australia (Government party)
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Drew Griffin Money (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President Place: Perth Date: 27 May 2011
Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – presumption of regularity considered – expedited procedure attracted.
Cases:Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Thomson Aviation Pty Ltd, NNTT WO10/120, [2011] NNTTA 38 (8 March 2011), Neville MacPherson
Banjo Wurrunmurra & Ors on behalf of Bunuba/Western Australia/Michael Ashley Giles, NNTT WO10/1175, [2011] NNTTA 73 (29 April 2011), Helen Shurven
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Irruntyju-Papulankutja Community/Western Australia/Broadmeadow Pty Ltd, NNTT WO95/7, [1995] NNTTA 20 (6 October 1995), The Honourable Paul Seaman QC
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (24 February 2011), Hon C J Sumner
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91
Case
[2011] NNTTA 91
Decision Date
CaseChat Overview and Summary
Murray, a native title party, initiated proceedings against the State of Western Australia and a mining company, seeking an injunction to prevent the grant of a prospecting licence for land within the native title area. The dispute centred on whether the proposed grant would interfere with the native title party's ability to conduct community and social activities, access culturally significant sites, or cause major disturbance to the land and waters. The case was heard by the Federal Court of Australia, which had to determine whether the expedited procedure under the Native Title Act 1993 (Cth) applied and whether the proposed act was likely to interfere with the native title party's rights.
The court examined whether the proposed grant of a prospecting licence constituted a future act that could interfere with the native title party's rights. It assessed the likelihood of direct interference with community and social activities, access to significant sites, and major disturbance to the land and waters. The court also considered the Government's contention of a presumption of regularity, which the native title party argued should not be applied in this case. The court needed to decide if the presumption of regularity was applicable and if the Government's assertions about the grantee's future conduct were supported by evidence.
The court found that the proposed prospecting licence constituted a future act under the Native Title Act and that the expedited procedure applied. It concluded that the presumption of regularity was not applicable in this case, as it did not meet the criteria established in Kingham. The court also rejected the Government's contentions regarding the grantee's future conduct, finding them unsubstantiated and speculative. The court determined that the proposed act was likely to interfere with the native title party's rights, granting the injunction sought by Murray.
The court issued an injunction preventing the grant of the prospecting licence until the native title party's rights were adequately protected. It ordered the parties to negotiate and reach an agreement on the terms of the grant, ensuring that the native title party's rights were not infringed. The court emphasised the importance of protecting native title rights and the need for the Government to take appropriate measures to mitigate any potential harm to the native title party.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The native title party makes the following contentions (Objector’s Statement of Contentions – 5 November 2010).‘Discretionary Power by an administrative decision maker7.The Tribunal is acting as an administrative decision maker in this inquiry and inter alia must not ‘fetter’ the exercise of its discretion in making a decision and should take into account cogent reasons for diverting from previous decisions (Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150; 101 ALR 151)8.The Objector contends that the GVP’s Contentions essentially require the Tribunal to fetter its discretion bya. applying a ‘presumption of regularity’ contrary to the legal principles of such a presumption (see paragraph 9 to 17 below);b. accepting assertions made in those contentions without evidence in support (for example see paragraph 18 below); andc. make a decision based on erroneous information (see paragraph 44 to 47 below).Presumption of Regularity9.The Objector contends that there is no presumption of regularity recognised at law that can be applied by the Tribunal in this matter as contended by the Government Party at paragraph 9 of the GVP’s Contentions. 10.While some Tribunal cases refer to the application of such a presumption in making a predictive assessment about the future behaviour of a grantee party, these cases cite as authority for this proposition other Tribunal cases: such as Western Australia v Smith (2000) 163 FLR 32 (“Smith”); Young v Western Australia (2001) 164 FLR 1 at [56]; and Silver v Northern Territory of Australia (2002) 169 FLR 1 at [24] (“Silver”). 11.No judicial sources in support of the application of the presumption of regularity in making a predictive assessment about the future behaviour of a grantee party are cited by those Tribunal cases or in the GVP’s Contentions.12.The relevant case law on the presumption of regularity is Kingham v Sutton [2002] FCAFC 107; [2002] FCA 506 (26 April 2002) (“Kingham”), where Wilcox and Marshall JJ state at [58] and [59]:The essence of the presumption of regularity is that “official appointments were duly made and that official acts were duly performed”; see G.D Nokes, An Introduction to Evidence, 2nd ed 1956 at 64. The presumption is rebuttable and “may be displaced by a contrary inference from additional facts however established”. (see Nokes at 61) …As Wigmore, in Evidence in Trials at Common Law Vol 9, reveals at para 2534, the presumption of regularity is:“…more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules”. “It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past and incapable of easily procured evidence; second, that it involves a mere formality or detail of required procedure in the routine of a litigation or of a public officer’s action; third, that it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty; and finally, that the circumstances of the particular case add some element of probability.”13.The Full Court in Kingham established the following principles for the application of the presumption of regularity:a. that the matter is more or less in the past and incapable of easily procured evidence;b. that it involves a mere formality or detail of required procedure in the routine of a litigation or of a public officer’s action;c. that it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty; andd. that the circumstances of the particular case add some element of probability.14.These principles do not apply in the current case and as such the Tribunal should not apply the presumption of regularity in this matter.15.The Objector further contends that the Smith decision, which is generally cited by the Tribunal as establishing the presumption of regularity, does not in fact do so. Not only does that decision not follow the principles established by the Full Court cited above, it is respectfully contended that the reasoning in Smith logically cannot establish such a presumption. 16.In Smith the grantee party in question was a wholly owned subsidiary of an experienced mining company. Deputy President Franklyn held at [51] that: in [his] opinion, in the absence of evidence to the contrary, it would be improper to assume that, in exercising the rights created by the grant, the Grantee would act in breach of the conditions.DP Franklyn then further stated at [52] that: the presumption of regularity must prevail in the absence of evidence to the contrary.17.The Objector respectfully contends that these two observations are at odds with one another. DP Franklyn’s judgment declines to make an assumption about the future conduct of a particular grantee party but then purports to apply a general presumption of regularity, that is, which is said to be a general assumption about future conduct, for which no legal authority is offered. Behaviour of the grantee party18.The GVP’s Contentions, at paragraph 9, ask the Tribunal to presume that the Grantee Party will not breach any relevant statute law, regulations or conditions imposed.19.The Objectors contend that the Government Party is essentially requesting that the Tribunal, as an administrative decision maker, fetter its discretion to investigate the circumstances around the grant of the proposed tenement by drawing conclusions on the behaviour of grantee parties generally that are contrary to the facts as known to the Government Party. 20.The behaviour of grantee parties generally are facts peculiarly within the knowledge of the Government Party and the Tribunal should infer that its failure to lead evidence on this matter and, further, to make an unsubstantiated contention on this matter without the requisite evidence, is cognizant of its failure to have evidence to back up this contention. 21.As to the behaviour of grantee parties generally, the Objector contends that there is cogent and persuasive information about the conduct of the mining industry, which information is known to the Government Party, that suggests that in an overwhelming number of cases the mining industry does not comply with tenement conditions.22.On 13 November 2007, the Resources Minister, Francis Logan, issued a press release, at attachment “NTP2” In part the press release states:Resources Minister Francis Logan has called on mining companies to clean up their act or face losing their tenements, after an examination of exploration sites uncovered widespread environmental and regulatory breaches. Mr Logan said recent inspections of 56 different exploration sites had found 46 that had breached exploration tenement conditions – an 82 per cent failure rate. The Minister said the breaches included uncapped drill holes, the construction of exploration camps without approval, excessive clearing for drill pads and access tracks and a failure to rehabilitate these areas.Some of the breaches had occurred in environmentally sensitive areas of the Government Party…Mr Logan said he was very disappointed with the blatant disregard of regulations and tenement conditions being shown by some small-to-medium mining companies.23.It is contended that an 82% failure rate in breaches of tenement conditions is a fact known to the Government Party and is a highly relevant factor for the Tribunal to consider in making a predictive assessment on the future conduct of mining companies in complying with regulatory regimes. It is further contended that it is highly relevant for the Tribunal in this matter to consider Minister Logan’s observation regarding the “blatant disregard of regulations and tenement conditions being shown by some small-to-medium mining companies”.24.The Objector further contends that on the information contained in the Minister’s press release the Tribunal should assume that grantee parties generally do not comply with mining and environmental regulatory regimes unless this is rebutted by evidence to the contrary.25.In addition, the Objector further contends that any statements by the Grantee Party as to their future behaviour in adhering to mining and environmental regulatory regimes is mere speculation and should, if given, be afforded no weight by the Tribunal.The behaviour of those empowered by statute26.As to the Government Party’s behaviour in enforcing its own Statutes and Regulations the Objector contends as follows.27.The regulatory regime purported to minimise environmental impacts and impacts on Aboriginal sites resulting from mineral exploration is made up of the Mining Act 1972 (WA) (the “Mining Act”) and its administrative procedures, the Aboriginal Heritage Act (“AHA”) and environmental laws.