Murray v Western Australia and Another

[2011] NNTTA 91

NATIONAL NATIVE TITLE TRIBUNAL

Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money, [2011] NNTTA 91 (27 May 2011)

Application No:               WO10/908

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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)

- and -

The State of Western Australia (Government party)

- and -

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.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237

Mining Act 1978 (WA), ss 46(aa), 63(aa)

Aboriginal Heritage Act 1972 (WA), s 18

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

Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362

Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391

Freddie & Ors v Western Australia [2007] NNTTA 37; (2007) 213 FLR 247

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

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

Little & Ors v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576

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

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340

Re Miriuwong and Gajerrong Peoples & Ors [1996] NNTTA 8; (1996) 128 FLR 90

Re Waljen Peoples [1995] NNTTA 29; (1995) 125 FLR 245

Silver v Northern Territory [2002] NNTTA 18; (2002) 196 FLR 1

Smith v Western Australia & Anor [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208

Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124

Western Australia v Ward [1996] FCA 993; (1996) 70 FCR 265

Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Yindjibarndi Aboriginal Corporation/Western Australia/Mithril Resources Ltd, NNTT WO10/385, [2010] NNTTA 209 (16 December 2010), Neville MacPherson

Solicitor for the

native title party:             Mr Malcolm O’Dell, Central Desert Native Title Services

Representative of the

native title party:             Ms Irene Assumpter Akumu, Central Desert Native Title Services

Solicitor for the

Government party:         Mr Domhnall McCloskey, State Solicitor’s Office

Representative of the      

Government party:         Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the      

grantee party:                 Mr Eamon Cornelius,Western Tenement Services

REASONS FOR DETERMINATION

1. On 10 March 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act/NTA) of its intention to grant prospecting licence P38/3887 (the proposed licence) to Drew Griffin Money (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licence comprises an area of 48.88 hectares located 80 kilometres easterly of Cosmo Newberry Mission in the Shire of Laverton.  It is entirely overlapped by the Yilka native title claim (WC08/5 – registered from 6 August 2009).  No other native title claims overlap the proposed licence.

3. On 2 July 2010, Harvey Murray on behalf of the Yilka registered native title claimant (the native title party) made an expedited procedure objection application to the Tribunal in respect of the proposed licence.

4. In accordance with standard practice the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, from the s 29 closing date for the lodgement of objections (10 July 2010), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

5. At a preliminary conference on 3 August 2010 the grantee party representative reported that the grantee party wished to rely on the Regional Standard Heritage Agreement (RSHA) and requested the matter proceed to an inquiry. Prior to the giving of the s 29 notice the grantee party had offered to sign a RSHA in accordance with the Government party’s policy on the expedited procedure.

6. In compliance with the directions the Government party lodged its Statement of Contentions and evidence by 28 October 2010. The native title party lodged a Statement of Contentions and the affidavits of Harvey Murray and Sean Calderwood on 8 November 2010.  At a listing hearing on 25 November 2010, the grantee party advised they would rely on the Government party’s contentions and evidence.  On the application of the native title party and with the agreement of other parties the Tribunal adjourned the proceedings until another objection application was determined in which similar contentions were raised (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 (Tarlpa)).  At a further listing hearing on 19 April 2011, held to clarify the conduct of the inquiry, directions were set for parties to make further submissions if they wished.  The Government party provided further submissions on the issue of the ‘presumption of regularity’ on 21 April 2011 but no further submissions were made by the native title or grantee parties.

7. At a listing hearing on 17 March 2011 all parties agreed that once all submissions were made the matter could be determined ‘on the papers’.  On 13 April 2011 the Tribunal drew to the attention of the parties the fact that the native title party’s contentions foreshadowed the possibility of witnesses being called at an oral hearing (see below paras 32, 39, 43 and 47 of Objector’s Statement of Contentions – 5 November 2010).  The Tribunal also noted that the native title party’s contentions raised the ‘presumption of regularity’ issue and questioned the effectiveness of the Aboriginal Heritage Act 1972 (WA) in relation to s 237(b) of the Act even though they contended (paras 4 and 5) that the expedited procedure was not attracted solely by reference to s 237(a) and made no contentions nor asked the Tribunal to make a determination based on ss 237(b) and (c).

8. The native title party’s position was clarified at the listing hearing on 19 April 2011 when they confirmed that they were relying on the ‘presumption of regularity’ contentions which the Tribunal has taken to mean that all paragraphs of s 237 are now in issue.  Despite the contentions referred to above the native title party also contended that they were content for the determination to be made on the papers.  The parties play a central role in right to negotiate inquiries under the Act (see Western Australia v Thomas (Waljen) [1996] NNTTA 30; (1996) 133 FLR 124 at 159-162) and in this case the native title party was legally represented through Central Desert Native Title Services (CDNTS), which is the applicable recognised native title service provider under the Act. Although the Tribunal can make its own inquiries and could require witnesses to give oral evidence if appropriate in the circumstances I have decided, in the light of the clear position of the native title party that they do not consider an oral hearing necessary and the limited evidence they have produced, that an oral hearing is not necessary in this case. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).

Evidence in relation to the proposed act

1. Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:

• Yamarna Pastoral Lease 3114/854 (80.4 per cent overlap); and

• Vacant Crown Land (19.6 per cent overlap).

1. There are no Aboriginal communities identified inside the area of the proposed licence and Tribunal mapping shows the nearest Aboriginal community to be Cosmo Newberry, situated approximately seventy eight kilometres west of the proposed licence area.

2. Department of Indigenous Affairs (DIA) documentation provided by the Government party reveals no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (AHA) within or in the near vicinity of the proposed licence area.

3. Government party documents indicate that there are no active tenements over the proposed licence area, however one ‘dead’ exploration licence, active from 2001 to 2008 entirely overlapped it.

4. The grant of the proposed licence is to be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia pursuant to the Mining Act (Government party’s Statement of Contentions, para 6).

‘1.	All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.	All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3.	All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.	Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited.  Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.’

1. The Government party’s evidence of the conditions to be imposed (para 1) refers to ‘exploration’ but I infer that when imposed the condition will be appropriately amended.

2. In addition to the standard conditions referred to above, there will be conditions requiring the pastoral lessee to be notified of the grant of the licence and of certain prospecting activities (conditions 5-6).

3. The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence if breached) will be imposed:

• the Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; and

• the Licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

1. A condition will also be imposed in the following terms:

   ‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Yilka, the applicants in Federal Court application no. WAD 297 of 2008 (WC08/5), such request being sent by pre-paid post to reach the Licensee's address, c/- Western Tenement Services, PO Box 428, Greenwood WA 6924 not more than ninety days after the grant of this licence shall within thirty days of the request execute in favour of the Yilka the Regional Standard Heritage Agreement endorsed by peak industry groups and Ngaanyatjarra Land Council’

Evidence provided by the native title party

1. The contentions of the native title party include the sworn affidavits of Mr Harvey Murray and Mr Sean Calderwood made in the following terms.

   Affidavit of Harvey Alan Murray

   ‘On the 5^th day of November 2010, I Harvey Alan Murray, of Cosmo Newberry Mission (Aboriginal Community), make oath and say as follows:

   1.   I make this affidavit in support of the Statement of Contentions of the Objectors in an inquiry to the objection to the expedited procedure matter WO10/908.

   2.   The information in this affidavit is something that I know to be true.

   3.   I am the applicant for the Yilka native title claim (WAD297 of 2008) and a traditional owner in the Yilka native title claim area.

   4.   I have been shown a map of the area of tenement application P38/3887.

   The decision making process of the community that comprises the Yilka native title claim group

   5.   I know the country of the application area; it is part of the country that we look after. When I talk about we, I mean the Yilka native title claimants who, as a part of our traditional law and custom, are responsible for the land in the Yilka native title claim.

   6.   We are responsible for looking after country; we are all one people and we all look after the land in the Yilka native title claim area. When we talk to each other we are always talking about looking after country.

   7.   Looking after country is making sure that our country is looked after the proper way.

   8.   When there are important decisions to be made that affect Yilka country, we all have to talk about it and make the decision together. It must be agreed by all people who speak for country in the particular part of the Yilka claim area that is affected and everyone in the Yilka claim area must know of the decision.

   9.   Making decisions about looking after country is a very important job and this is a community activity that many Yilka claimants spend a lot of time doing because of their cultural obligation to make sure Yilka country is looked after the proper way.

   10.    The main and most important way that Yilka claimants undertake community activity is by looking after the land.

   The way in which the Yilka community do community activities which look after the land

   11.    We all must look after the land together the proper way; this is a very important job and we must do it because it shows respect for the land and we want the land to still be good for our children.

   12.    We have to make sure that we look after the land and that any visitors are also looking after the land properly. We make sure that all people who come into the Yilka native title claim area look after the land and show respect for the land.

   13.    We do this by talking about it together so that everyone knows what is happening on the land and then deciding together whether what is happening is okay; this means whether people are showing proper respect to the land and whether people should be doing those things on the land.

   14.    When a mining company wants to come to Yilka native title claim area the Yilka claimants have a big meeting to talk about the mining company and then enter into an agreement with them that makes them look after the land in the way the Yilka claimants do.

   15.    These agreements allow for the community of Yilka claimants to check up on the mining company to make sure they are caring for country, especially when getting ready to leave. We will go out and see if the mining company has cleared up after itself and done all the things to look after the land that it said it would do.

   16.    If we are not allowed to talk to Drew Griffin Money and reach an agreement with him, then we will not be looking after the land properly, which we have to do together under our laws and customs.’

1. The evidence of Mr Murray is uncontested and I accept it.  Mr Murray is the only person who comprises the applicant and registered Yilka native title claimant. I accept he is a member of the native title party claim group and has the necessary authority to speak for country on behalf of the native title party.

   Affidavit of Sean Mark Calderwood

   ‘On the 5^th day of November 2010, I, Sean Mark Calderwood, of 170 Wellington Street, East Perth, make oath and say as follows:

   1.I am a Senior Anthropologist at Central Desert Native Title Services (Central Desert) and have been employed in this role since 31 March 2008. I previously worked in the Ngaanyatjarra Council Native Title Unit for 4 years from 1999 to 2002.

   2.Except where otherwise stated, the facts herein deposed are within my own knowledge or have come to my knowledge through access to information, which I believe to be true and which is identified in this affidavit.

   3.I swear this affidavit is support of the Objector’s contentions in this matter.

   4.As part of my work at Central Desert and also previously with the Native Title Unit, I attend claim meetings and undertake heritage surveys with the Yilka native title claimants.

   5.I spend and have spent considerable time with the members of the Yilka native title claim group and have spoken at length to them about their native title rights in a formal and informal setting. Through these discussions, I have come to understand that ‘looking after country is:

   a.   a vitally important community activity that is continually practiced against a framework of traditional law and custom; and

   b.   the main cultural imperative behind the majority of claimants’ involvement in the native title.

   6.The activity undertaken by the Yilka native title claimants under their traditional laws and customs is frequently referred to in short by them as fulfilling their duty to ‘look after country’.

   7.As individuals or small groups the activity of ‘looking after country’ may manifest in:

   a.   visiting waterholes in order to maintain them;

   b.   intergenerational transfer of knowledge about flora, fauna and maintenance of country;

   c.    transfer of knowledge about traditional law and custom;

   d.   traditional burning regimes; and

   e.    cultural site maintenance.

   These activities are undertaken for the benefit of the community of Yilka native title claimants, as part of their traditional laws and customs.

   8.As a community of people the activity of ‘looking after country’ may manifest in ensuring visitors look after the country the proper way. All persons entering onto country, including miners, are considered visitors and because this activity is considered a ‘duty’ it is taken very seriously by the community.

   9.The activity of ensuring visitors look after country is not one that falls on a single person or single group of people; it is an activity that the native title claim group do together. In order to ensure visitors look after country the proper way, and hence the community is conducting its duty, the community will talk to visitors and continually discuss the visitors’ objectives and methods for the land amongst themselves.

   10.Where visitors, including mining companies seek to enter onto Yilka country the community:

   a.   Hold a meeting to discuss the situation;

   b.   Talk to visitors about the country and the proper way to look after country;

   c.    Make a decision together to enter onto an agreement with the visitor, if necessary, to ensure they know the proper way to look after country; and

   d.   Check up on the visitor to make sure they are looking after country properly.

   11.I know this from observing the practices of the claimants in my experience in the area and also from discussions with claimants.’

1. None of Mr Calderwood’s affidavit (including his expertise as an anthropologist) is contested by the other parties and I am satisfied that it is appropriate to accept it in evidence (Tarlpa at [34]-[37]).

2. With the exception of references to the claim group, application number, minor formatting changes and some grammatical differences, the contents of Mr Murray’s affidavit closely resemble the affidavit of Mr Victor Ashwin submitted in Tarlpa (and outlined in full at [29]).  Similarly, with the exception of references to the claim group, application number, minor formatting changes and some grammatical differences, paragraphs 5-9 of Mr Calderwood’s affidavit closely resemble paragraphs 6 and 8-11 of the affidavit of Mr Lindsey George Langford submitted in Tarlpa (and outlined in full at [30]).  In my view there is no material difference between this evidence and that tendered and considered in the Tarlpa determination.

3. In support of its contentions the native title party also provides:

• a press release issued by Francis Logan, Minister for Energy, Resources, Industry and Enterprise, dated 13 November 2007; and

• a submission by the Department of Indigenous Affairs to the Functional Review Committee Established to Review The Department of Indigenous Affairs, dated June 2006.

Sections of these documents, relied on by the native title party, are quoted below in their Statement of Contentions – Presumption of regularity (paras 22 and 35).

The nature of a prospecting licence including conditions to be imposed

1. In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley) (at 449-445 [24]-[37]) I considered the nature of exploration and prospecting licences and the conditions to be imposed, including what activities are permitted by them and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purpose of this inquiry. Paragraph [32] deals with prospecting licences and remains applicable except there is now provision for extension by the Minister of the term of a prospecting licence beyond four years.

2. I also note that the standard conditions (see above) to be imposed on prospecting and exploration licences as described in Walley (at 453-454 [34]) have been strengthened. Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (DMP). Standard condition 4 is also to be read with s 63(aa) (exploration licences) and s 46(aa) (prospecting licences) of the Mining Act 1978 which requires approval by the Environmental Officer, DMP, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used.  Before assessment, the program of work for prospecting, amongst other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from that department that the proposed activities are acceptable.

Legal principles

1. Section 237 of the Act provides:

‘237    Act attracting the expedited procedure

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.’

1. In Walley I considered the applicable legal principles (at 439-449 [7]–[23]) and I also adopt those findings for the purposes of this inquiry.

The ‘presumption of regularity’ issue

1. The Government party contends, as it customarily does in all expedited procedure inquires, that there is a presumption of regularity which means that it may be presumed that a grantee party will act lawfully in exercising rights given under a prospecting licence which may be rebutted by evidence.  It cites in support the Tribunal’s determination in Silver v Northern Territory [2002] NNTTA 18; (2002) 196 FLR 1 (Silver) at [24] where Member (now Deputy President) Sosso said:

   ‘The government party also contended (GPSC at para 12) that there is a presumption of regularity; in summary that a grantee party will act lawfully in exercising rights given under an exploration licence. There are numerous determinations of the Tribunal to the effect that the presumption of regularity must prevail in the absence of evidence to the contrary – Deputy President Franklyn Western Australia v Smith (2000) 163 FLR 32 at 51-52. This approach was also accepted by Carr J in Ward v Western Australia (1996) 69 FCR 208 at 228 and 230. Having said that, it is only a presumption, and one that can be readily displaced should there be material before the Tribunal – see Western Australia v Ward (1996) 70 FCR 265 at 276 per Lee J.’

2. In Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 (Smith/DP Franklyn) when considering the effect of the 1998 amendments to the Act Deputy President Franklyn QC (a former justice of the Supreme Court of Western Australia) said (at [37]):

   ‘In my 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 imposed on the licence or in defiance of the various statutes and regulations which apply in respect of and would restrict the exercise of such rights. Nor should it be assumed that those empowered by any such statute or regulation to exercise a discretion as to the manner or extent of the exercise of all or any such rights would not act properly within the boundaries of the discretion. The presumption of regularity must prevail in the absence of evidence to the contrary. It is of course not possible to assess how or the likelihood of how any such discretion will be exercised but that does not necessarily lead to a conclusion of likelihood of relevant interference or disturbance. In some cases, depending on the nature of the discretion, its exercise may prevent a finding of likely ‘direct interference’ within the meaning of s 237(a) in that the interference, at least arguably, flows from the discretionary decision and not directly from the ‘act’. That a discretion may exist and its nature and subject matter are matters to be taken into account and given such weight as the circumstances require, in determining ‘likelihood’.’

3. In Walley at [11] I set out my understanding of DP Franklyn’s reasons:

   ‘Presumption of regularity:  Unless there is evidence to the contrary the Tribunal will act on the basis that the Government will exercise its powers including making discretionary decisions properly and in accordance with the law; and that a grantee party will not act contrary to the  law and regulatory regime including conditions imposed which governs the exercise of rights under the grant (Smith (Franklyn DP) at 51-52 [37]) Ward v Western Australia (1996) 69 FCR 208 (Carr J) at 228 and 230); (Little at [76]-77]).’

4. Since the determination in Smith/DP Franklyn the Tribunal has applied a presumption of regularity as described in these cases.  It is relevant to all three limbs of s 237 as the Government party relies on various State legislative provisions such as the Mining Act, (including that conditions will be imposed on the grant (see above)) and the Aboriginal Heritage Act and the manner of their administration to contend that there is not likely to be the interference or disturbance of the types referred to in s 237.

5. The native title party’s major contention in these proceedings is that the Tribunal has wrongly applied the presumption and that the Government party contentions should not be accepted.  The issue has been raised by various native title parties in a number of recent inquiries but until now it has not been necessary for the Tribunal to determine the issue, generally because a determination has been made that the expedited procedure is not attracted regardless of whether or not such a presumption applies (see example Yindjibarndi Aboriginal Corporation/Western Australia/Mithril Resources Ltd, NNTT WO10/385, [2010] NNTTA 209 (16 December 2010), Neville MacPherson at [44])). It is important that the issue be resolved.

Native title party’s contentions on the presumption of regularity

1. The native title party makes the following contentions (Objector’s Statement of Contentions – 5 November 2010).

   ‘Discretionary Power by an administrative decision maker

   7.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 by

   a.     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); and

   c.     make a decision based on erroneous information (see paragraph 44 to 47 below).

   Presumption of Regularity

   9.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; and

   d.   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 party

   18.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 statute

   26.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.

28.The Objector contends that the Government Party fails to:

a.     properly monitor and enforce the Mining Act and associated regulations (see paragraphs 29 to 32 below);

b. properly monitor and enforce the AHA and associated regulations (see paragraphs 33 to 39 below); and

c. comply with the NTA in its enforcement of the AHA (see paragraphs 40 to 43 below).

Mining Act and its administrative procedures

29.The Objector contends that the imposed conditions on licences are not enforced and are therefore ineffective. In support, the Objector refers to the Minister’s press release attached at “NTP2” and discussions at paragraphs 21 to 24 above of which the Tribunal should conclude that companies do not generally adhere to conditions of their tenements. The Objector contends that in light of the evidence of non-compliance by mining companies with the conditions of tenements, the conditions have no effect and the provisions of the Mining Act do not inform explorer’s behaviour.

30.Further, the Tribunal should consider that the Minister’s press release discussed at paragraphs 21 to 24 above is highly relevant as to the effectiveness of the Mining Act and its procedure and should draw an inference that conditions of a mining tenement are not adhered to by grantee parties.

31.It is a logical conclusion that the failure of the Government Party to enforce conditions imposed on tenement holders has led to the majority of tenement holders breaching their conditions as advised in the Minister’s press release. The Objector contends that this is a highly relevant matter that the Tribunal should consider when making its predictive assessment.

32.Should the Tribunal, contrary to the Objector’s contentions, intend to infer that the Government Party does enforce its Mining regulations then the Objector requests that the relevant government agency be called to provide direct evidence to the Tribunal on these matters and be subject to questioning by the Objector.

Aboriginal Heritage Act

33.In relation to paragraphs 20 to 22 of the GVP’s Contentions, the Objector contends that the AHA and its administrative procedures do not effectively protect sites of significance and that this is known to the Government Party.

34.It is submitted that since the decision of Little v Western Australia (2001) FCA 1706 (“Little”) cogent and relevant information has emerged that throws into considerable doubt the capacity of the AHA to protect sites of significance.

35.The government agency charged under the AHA with enforcing the so-called ‘protective provisions’ for the AHA is the Department of Indigenous Affairs (“DIA”). In its submission to the functional review committee established to review its own performance (attached and marked “NTP3”), the DIA relevantly submitted (at pages 56 and 57):

Although in 2003 Parliament substantially increased penalties for damaging sites under the AHA, DIA’s capacity to respond to the priority placed on heritage protection is limited by lack of resources and on-ground staff. Criticism is directed by DIA’s perceived failure to protect Aboriginal sites and to prosecute those who damage or destroy sites.

There are a number of legal and practical limitations on DIA’s ability to pursue allegations of Aboriginal site disturbances. These are outlined as follows:

·Damage to a site may not be reported to DIA … it may simply be, especially in remote locations, that the damage is not discovered for a long time …

·Even if reported, evidence of who damaged the site may be unavailable or insufficient to support a successful prosecution. In 2005/06 DIA investigated sixteen site disturbance allegations but was only able to prosecute in one case based on available evidence. As breaching the AHA is a criminal offence the offence must be proved beyond reasonable doubt; and

·The 12 month limitation period on when a prosecution can be lodged under the AHA makes the issues raised at point 1 and 2 more acute.

…. The imbalance between the resources required to protect Aboriginal sites in WA and the resources at DIA’s disposal are illustrated by the duties of DIA’s Senior Heritage Officer based in Broome. This officer is responsible for all heritage matters rising in the Kimberley, Pilbara and parts of the Murchison regions …

Similarly, although DIA attempts to monitor compliance by land owners and developers with the conditions of the consent given by the Minister under section 18 of the AHA, financial and human resources are focused on the government priority of progressing applications through the section 18 development approvals process. For example, new funding for DIA through the Keating Review process will enable the DIA employ two additional heritage staff, but these officers will be devoted to supporting the development process …

… The results of the DIA’s inability to effectively monitor or enforce the State’s heritage protection regime is: …

·The risk that important heritage sites may be damaged or destroyed.

36.The Objector contends that the GVP’s Contentions at paragraphs 20 to 22 should be read in light of the excerpts referred to above from the DIA submission. It is submitted that, not withstanding the effect of increased penalties, DIA’s capacity to enforce the AHA is severely curtailed by lack of funding. Funding that is available to DIA is channeled more to the development process than to the enforcement process. It is DIA’s view that as a consequence of the lack of funding interference to sites may not be identified within the statutory period for enforcement (1 year) and even if identified there are insufficient resources to properly investigate. Further in DIA’s view, this will lead to “the risk that important heritage sites may be destroyed”.

37.The Objector further contends that DIA’s own view on its inability to enforce the so-called protective provisions of the AHA and consequently on the ineffectiveness of the protective provisions of the AHA is a highly relevant consideration for the Tribunal in considering the effect of the AHA on section 237 of the NTA.

38.As a consequence it is contended that this matter now before the Tribunal can be distinguished from the decision in Little on its facts. That is, DIA’s submission about its inability to enforce the protective provisions of the AHA was not information available to the Court in Little and that as a consequence the effect of the decision in Little is no longer a matter that should bind the Tribunal.

39.Should the Tribunal, contrary to the Objector’s contentions, intend to infer that the Government Party does enforce its Aboriginal Heritage Act and regulations then the Objector requests that the relevant government agency be called to provide direct evidence to the Tribunal on these matters and be subject to questioning by the Objector.

Failure to comply with the Native Title Act

40.In addition to the failure of DIA to adequately enforce the protective provisions of the AHA detailed at paragraph 33 to 39 above, the Objector contends that DIA has failed to adhere to the provisions of the NTA when issuing a consent by the Minister under section 18 of the AHA.

41.The Objector contends that a section 18 AHA consent will interfere with a native title party’s native title rights and interests and is therefore a ‘future act’ as defined under section 233 of the NTA. To comply with the NTA any consent made under section 18 should be notified under the relevant future act provision of the NTA.

42.The Objector is unaware of any occasion on which a section 18 AHA consent has been notified under the future act provisions of the NTA. In the absence of any evidence that the Minister has adhered to the future act provisions of the NTA in relation to section 18 AHA consents, it is open to the Tribunal to infer that the Minister has failed to do so and in so doing it is a highly relevant consideration in whether there is a regulatory regime that effectively stops interference or significant disturbance of the factors in section 237 of the NTA.

43.Should the Tribunal, contrary to the Objector’s contentions, intend to infer that the Government Party does comply with the NTA then the Objector requests that the relevant government agency be called to provide direct evidence to the Tribunal on these matters and be subject to questioning by the Objector.’

Government party’s reply to the native title party’s contentions on the ‘presumption of regularity’

1. In the Government party’s reply of 21 April 2011 the Government party contends:

   ‘8.Objectors' Contentions [9] – [17] as to the "Presumption of Regularity" are misconceived for the following reasons. First, as noted in Government Party Contentions [9], the presumption of regularity has been correctly recognised and applied by the Tribunal in previous cases: see Silver v Northern Territory (2001) 164 FLR 1.

   9.The presumption it is contended the Tribunal is entitled to rely on is simply that the grantee party will act lawfully in exercising rights given to it by the proposed tenement, though the presumption may be rebutted by evidence: see Silver v NT at [24] (wherein the Tribunal noted that in Ward v Western Australia (1996) 69 FCR 208 at 228B and 230B the Federal Court approved the former's use of this presumption of regularity in expedited procedure objection applications).

   10.Further, it is of no consequence the Tribunal did not rely on judicial authority when formulating the content of the presumption (though Deputy President Franklyn, who decided Western Australia v Smith (2000) 163 FLR 32, was a former judge of the Supreme Court of Western Australia). In any event, as noted by the Tribunal in Silver v NT at 14 [24], in Ward v Western Australia the Federal Court (at 228B and 230B) approved the Tribunal's use of the presumption of regularity as understood in expedited procedure objection applications determined by the Tribunal to date.

   11.In addition, the assertions in the Objectors' Contentions [9] and [12] – [14] to the effect the only presumption of regularity recognised at law is as discussed in cases such as Kingham v Sutton [2002] FCAFC 107 are misconceived because the presumption contended for by the government party is a presumption of regularity established by the Tribunal in objections determined by it under the NTA, as it alone is required to do, and is not the presumption of regularity referred to in Kingham v Sutton.  The nature of the presumption contended for by the government party is described in Silver v NT [24], following Western Australia v Smith (see pp 51-2, [37]) and Young v Western Australia (2001) 164 FLR 31 [57]; note again Ward v Western Australia (supra) at 228B and 230B. This presumption is also consistent with the manner in which the Tribunal is required to perform its functions: see sections 109 (especially sub-sections (1) and (3) thereof), 142, 143, 146 and 151-156 (inclusive) of the NTA.

   12.Thus, properly understood, the presumption does not involve a fettering of the Tribunal's powers or discretion as asserted in Objectors' Contentions [8]. It is simply a common-sense, logical approach used by the Tribunal in determining a matter in issue before it in applications such as this, namely predicting the future conduct of a grantee party, and contains an essential safeguard - it will not apply if there is "evidence …the Grantee Party has or will act contrary to the law and particularly the regulatory regime dealing with Aboriginal sites based on the Aboriginal Heritage Act 1972 (WA)": see Hicks & Ors on behalf of Wong-Goo-To-Oo/Western Australia/Mineralogy Pty Ltd [2008] NNTTA 3 at [43].

   13.Despite the claim in Objectors' Contentions [9] "that there is no presumption of regularity …that can be applied by the Tribunal in this matter", Objectors' Contentions [24] contends that the Tribunal "should assume …grantee parties generally do not comply with mining and environmental regulatory regimes unless this rebutted by evidence to the contrary", the mirror opposite of the presumption contended for by the government party.  However, other than relying on NTP2, the objectors do not explain why this approach is justified in the absence of direct evidence concerning the actions of the grantee party. The government party says Objectors' Contentions [24] should be rejected by the Tribunal for that reason, and because it is contrary to the approach adopted by the Tribunal to date as exemplified by its development of the presumption of regularity, as well as for the reasons following as to the proper the assessment of NTP2.

   14.As to Objectors' Contentions [21] – [24], the objectors appear to refer to NTP2 because it is critical of the mining industry generally and simply assert that this constitutes evidence the Tribunal may rely on to conclude this grantee party is likely to act in a similar manner to that criticised in NTP2, a manner that is inconsistent with or in excess of the rights granted it by the proposed tenement, and/or contrary to the State's regulatory regime, and thereby cause interference or disturbance of the kind referred to in section 237 NTA. 

   15.Further, the government party understands that such document shows the ineffectiveness of the State's regulatory regime, in particular that press release shows the State does not properly monitor and enforce the Mining Act and the Aboriginal Heritage Act.  As to that assertion, the government party says it cannot properly be claimed that the content of the press release alone shows that this grantee party will not comply with the State's regulatory regime, and that criticism of the mining industry as a whole cannot of itself lead to an inference this grantee party will not likely to comply with the State's regulatory regime, especially in light of the presumption of regularity contended for by the government party.  Further, the government party says NTP2 records data collated in late 2007, over three years ago, and does not identify the grantee party as one of the companies criticised.

   16.In short, NTP2 does not establish the grantee party will not comply with the State's regulatory regime, or the nature and/or extent of such non-compliance and its relationship, if any, to section 237 NTA.  (Such non-compliance may fall well short of interference or disturbance of the kind contemplated by section 237.)

   17.In addition, since the publication of NTP2, the State's regulatory regime has been strengthened by the introduction of a new Enforcement and Prosecution Policy for the Department of Mines and Petroleum ("DMP"), the most recent update of which is available on DMP's website. A copy of the same is attached hereto marked "D".  The content of the policy contradicts claims by the objectors as to the relevance of NTP2 at this date and as to the State's regulatory regime made in Objectors' Contentions [26] – [32]. 

   18.In the premises, the government party contends NTP2 should not be relied on by the Tribunal in this matter or should otherwise be given little weight.

   19.Further, the government party contends the assertions in Objectors' Contentions [33] - [39] concerning "NTP3" (as quoted in Objectors' Contentions [35] in particular), and the enforcement of the Aboriginal Heritage Act 1972 (WA) and its associated administrative procedures should not be accepted by the Tribunal. Firstly, to date the objectors have not provided any evidence or material that shows this grantee party is likely to breach the Aboriginal Heritage Act and is thus not entitled to the benefit of the presumption of regularity, namely that in the absence of evidence to the contrary the grantee party will act in accord with the Aboriginal Heritage Act and its associated administrative procedures, including section 17 of that Act. To date the government party has received no material to suggest this grantee party is likely to breach the Aboriginal Heritage Act in a manner likely to constitute interference or disturbance in accordance with section 237 NTA, or at all.

   20.Further, in the absence of evidence that there is any "Aboriginal site" within the meaning of the Aboriginal Heritage Act within the boundaries of the proposed tenement there can be no finding that there is likely to be a breach of section 17 of that Act by this grantee party likely to constitute interference or disturbance of the kind contemplated by section 237 NTA. To date there are no Aboriginal sites within the boundaries of the proposed tenement registered as such under the said Act. Further, the government party notes that in presenting their case to the Tribunal the objectors did not claim that there were any such sites that had not been registered or that there were any areas or sites or sites of particular significance to them within the meaning of s 237(b) of the NTA located within the boundaries of the proposed tenement.

   21.Applying the presumption of regularity contended for by the government party, the Tribunal should find that the grantee party is likely to take such action as is required by the Aboriginal Heritage Act and is likely to act in a manner likely to otherwise avoid causing interference or disturbance of the kind contemplated by section 237 NTA in any event. 

   22.Based on the contentions advanced in the preceding three paragraphs, the government party contends there is no basis for concluding the grantee party is likely to breach any section of the Aboriginal Heritage Act or its associated administrative procedures and thereby cause interference or disturbance of the kind contemplated by section 237 NTA, or at all.

   23.In addition, and as previously alluded to, the government party contends the willingness of the grantee party to execute a RSHA with the objectors shows a willingness by it to consult with the objectors concerning the grantee party's future courses of action, a characteristic attaching to the grantee party's future conduct that is likely to avoid both a breach of the Aboriginal Heritage Act and the risk of interference or disturbance of the kind contemplated by section 237 NTA in any event.

   24.The government party denies the assertions in Objectors' Contentions [40] – [43] that the State does not comply with the NTA when application is made under section 18 of the Aboriginal Heritage Act, and says such assertion is not a relevant matter in issue in this matter: Wilma Freddie v State of Western Australia (2007) 213 FLR 247 at 265, [66].’

Discussion of ‘presumption of regularity’ issue

1. Section 237 of the Act as originally enacted used the words ‘does not’ instead of the words ‘is not likely to’ which is the current wording inserted by amendments made in 1998.  Based on the original wording, the Tribunal found that the words ‘does not’ should be interpreted to mean ‘is not likely to’ (Irruntyju-Papulankutja Community/Western Australia/Broadmeadow Pty Ltd, NNTT WO95/7, [1995] NNTTA 20 (6 October 1995), The Honourable Paul Seaman QC (Irruntyju-Papulankutja)).  This approach was initially upheld by Carr J in Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward/Carr J) but subsequently Lee J in Western Australia v Ward [1996] FCA 993; (1996) 70 FCR 265 (Ward/Lee J) found that the words ‘does not’ did not involve an assessment of the likelihood of interference or disturbance but meant that the issues in s 237 should be determined by what the grant of the licence makes possible not the likely actual consequences.  The latter view was endorsed by the Full Federal Court in Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 (Dann).

2. Following the 1998 amendments to s 237 the Federal Court accepted that Parliament intended to restore the original interpretation of the Tribunal and of Ward/Carr J.  In Smith v Western Australia & Anor [2001] FCA 19; (2001) 108 FCR 442 (Smith/FC) French J found on appeal from the determination in Smith/DP Franklyn that (at [23]):

   ‘It was submitted that the amendment to s 237 reflected a legislative intention to require a predictive assessment of the effects of the proposed future act in accordance with the approach taken by Carr J in the Ward case, rather than that adopted by the Full Court in Dann [Dann v Western Australia (1997) 74 FCR 391]. In my opinion that it is the plain intention behind the amendments to s 237 and that intention is effected by the language that has been used. The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement.’

3. This approach was approved by the Full Federal Court in relation to all elements of s 237 (Little & Ors v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (at [41]-[51]) (Little/Full Court)).

4. As a consequence of the reinstatement of the predictive assessment approach the intentions of a grantee party including its attitude to the State’s regulatory regime including the Aboriginal Heritage Act are a relevant factor (Smith/DP Franklyn (at [35]), Silver (at [25]-[32]), Walley (at [9]); Little/Full Court (at [57])).

5. The 1998 amendments to s 237 mean that the pre-Dann determinations of the Tribunal and the decision in Ward/Carr J remain relevant.  Accordingly, it is appropriate to start any consideration of the ‘presumption of regularity’ issue with the original test cases on the expedited procedure decided by Deputy President Seaman QC (also a former justice of the Supreme Court of Western Australia).  In outlining the task of the Tribunal in Irruntyju-Papulankutja the assumption was made that the grantee party in that matter would act lawfully,  For example, in respect of 237(b) DP Seaman said:

   ‘In my view subsection (b) requires the native title party to show that it is likely that the grantee party and those acting on its behalf, behaving lawfully in the exercise of the rights given by the licence, will interfere with areas or sites of particular significance, in accordance with the traditions of the native title party.’

1. In a subsequent case (Re Waljen Peoples [1995] NNTTA 29; (1995) 125 FLR 245) Deputy President Seaman considered the Aboriginal Heritage Act 1972 (WA) (AHA) and found that the regulatory regime established by it and the State’s administrative procedures made it unlikely that there would be the s 237(b) interference (at 249):

   ‘6.On the grant of an exploration licence the grantee party would receive a document entitled "Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers" which is annexed to these reasons.

   The document contains a reasonable statement of the provisions of the Aboriginal Heritage Act 1972. In particular there is reference to s5(b) which includes within the definition of "Aboriginal site" "any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent", to s17 which provides that any person who excavates, destroys, damages, conceals or in any way alters an Aboriginal site commits an offence unless he is acting with the authorisation of the Registrar under s16 or the consent of the Minister under s18 of the Act, and to s62 of that Act which provides:

   "In proceedings for an offence against this Act it is a defence for the person charged to prove that he did not know and could not reasonably be expected to have known, that the place or object to which the charge relates was a place or object to which this Act applies."

   The document gives a number of reasons why consultation with Aboriginal interests should be sought including the reason that some Aboriginal people are the traditional owners and/or custodians of sites or places which are of religious significance to Aboriginal people. It says that in exploration of Crown land the consultation process is required prior to the commencement of exploration work but can await granting of title.

   It gives detailed advice about which Aboriginal people should be consulted, and there are detailed suggestions about how the consultation should proceed.

   Three main types of strategy to ensure that sites of importance to Aboriginal people are not disturbed by exploration work are mentioned, being site avoidance, work area clearance and site identification. There is a recommendation for ongoing consultation.

   Conclusions

   I conclude that the grant of this licence is not likely to interfere directly with Waljen community life, nor is it likely to interfere with areas or sites of particular significance in accordance with the traditions of the Waljen people nor is it likely to involve major disturbance to the land concerned.

   My conclusion about sites is reached because of a lack of evidence of their existence, but if there had been evidence that there were sites of particular significance in accordance with Waljen traditions on the land I would have reached the same conclusion for the following reasons.

   In re Irruntyju-Papulankutja I said:

   "It follows from these findings that I determine that the act of granting these licences attracts the expedited procedure. However if the lands had not been within an Aboriginal reserve I would have found that they did not.

   It follows from the views which I have expressed that if an application of this sort came before me in which similar findings were made about areas or sites of particular significance I would only make a determination that the expedited procedure applied if the proposed exploration licence was conditioned to the effect that the Minister would not consent to exploration until the grantee party produced a written work area/programme clearance agreement with the native title party." (Emphasis added).

   In this hearing new evidence about guidelines and warnings to grantee parties has been led by the government party which I have accepted and my findings are therefore not similar to those in Irruntyju-Papulankutja.

   In view of my findings of fact about the guidelines and the Aboriginal Affairs Department's response to inquiries I would have concluded that it is unlikely that these grantee parties will fail to consult with the native title party and the Waljen people about the location of their exploration activities and that it is unlikely that they or those acting on their behalf will interfere with areas or sites of particular significance in accordance with the traditions of the Waljen people.’

2. It can be seen from this background that from the Tribunal’s earliest determinations in 1995 the assumption was made that a grantee party would act lawfully and that in relation to s 237(b) the State’s regulatory regime dealing with Aboriginal sites was a relevant matter.  Although not expressly stated by DP Seaman QC it can confidently be accepted that different considerations would have applied if there was evidence that the grantee party would not comply, or be unlikely to comply, with its legal obligations.

3. DP Seaman’s conclusions in the above cases were followed by me in subsequent cases to find that the expedited procedure was attracted which were considered by the Federal Court in Ward/Carr J.  Given that the issues raised by the native title party relating to the presumption of regularity have similarities with those advanced in Ward/Carr J I have set out the reasons for rejecting the native title party’s appeal on this point in full (at 227-230):

   The effectiveness of protection of the objector's land (grounds (c), (e) and (f) in Smith and Ward I and grounds (d), (f) and (h) in Ward II)

   Under this heading I have grouped the following matters in respect of which the appellants complain that the Tribunal erred in law:

   "(c)in drawing an inference that the grantee party will follow "Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers" when there was no evidence from which such an inference could be drawn and, where there was direct evidence in contradiction to the inference [the words in italics did not appear in the relevant ground of appeal in the third matter];

   (e)in determining that a relevant consideration to be applied is the likelihood or not of a grantee party consulting with the native title party, when s 237 requires that there be no interference or disturbance;

   (f)in determining that the Aboriginal Heritage Act will generally be effective in ensuring no interference or disturbance with areas of sites of particular significance."

   In oral submissions, Mr Ritter qualified the appellants' "no evidence" submission by saying that there was no direct evidence in contradiction to the inference. As a result of that qualification all that was left was evidence that some persons, other than the grantee parties in these matters, had in the past not consulted with the native title parties. In the context of appeals on questions of law, I do not consider it appropriate for me to consider those particular factual matters. There remains the first part of the appellants' "no evidence" submission.

   Although each of the respondents, in their written submissions, contended that a submission of "no evidence" did not involve a question of law, in oral argument they accepted that it did.

   In my view, the first ground referred to above has not been made out. In Smith the Tribunal had before it a letter dated 14 September 1995 from CRA Exploration Pty Ltd that it would conform with the then current edition of the "Guidelines for Minerals Exploration in the Areas of Aboriginal Interest in Western Australia" (the Guidelines), that it was aware of its obligations under the Aboriginal Heritage Act and would comply with the provisions of that Act. Furthermore there was a similar statement in evidence from BHP Exploration Pty Ltd. The Tribunal directed that the evidence in Smith be received as evidence in both Ward I and Ward II.

   The Guidelines were in evidence in each of the matters. In each there was evidence that the Guidelines would be sent with each grant of an exploration licence. I was not taken to any evidence to suggest that any of the grantee parties would not follow the Guidelines.

   In my view, it cannot be said that there was no evidence from which the Tribunal could draw the inference that the grantee parties would follow the Guidelines.

   In the next ground of appeal the appellants contend that the Tribunal erred in law in determining that the likelihood or not of a grantee party consulting with the native title party was a relevant consideration. In the appellants' written and oral submissions this ground was subsumed into the matter of the effectiveness of the Aboriginal Heritage Act and related matters, to which I now turn.

   It was common ground that the Tribunal decided that the Aboriginal Heritage Act will generally be effective in ensuring no interference or disturbance with areas or sites of particular significance. The Tribunal did that by inferring that the grantee parties would obey the law, including that statute. To do so, the Tribunal considered that it would be necessary for the grantee party to consult the native title party. Accordingly it found as a fact that such consultation was likely to happen.

   The appellants submitted that the Tribunal had erred in law in its approach. It was said that “... the Native Title Tribunal erred in its legal conclusion that those constraints established by the Aboriginal Heritage Act were such that there will not or cannot legally be interference with sites by the grant in question”. That is not how the Tribunal expressed its conclusion. In Smith (at p 21) the Tribunal having reviewed evidence of:

   •    the fact that the exploration licensee's attention was specifically drawn to the Aboriginal Heritage Act in the Schedule of Endorsements on the grant of an exploration licence;

   •    the various provisions of that Act and the Mining Act;

   •    the distribution of the Guidelines; and

   •    the administration of the Aboriginal Heritage Act and the Mining Act,

   concluded with a finding of fact to the effect that it was not likely that there would be such interference.

   In Ward I the Tribunal reached a similar conclusion, in part by reference to its conclusions in Smith. In Ward II the Tribunal considered additional evidence in the form of a report known as the Senior Report on the Aboriginal Heritage Act commissioned by the State of Western Australia. The Tribunal's conclusions were expressed as follows:

   "The Aboriginal Heritage Act is likely to be effective in this case in ensuring that there is unlikely to be interference with sites of particular significance in accordance with the traditions of the native title parties on the basis that the grantee party acts lawfully. The grantee party has indicated that it is aware of its obligations and will consult with the native title party to ensure that there is not interference with sites. They are now aware of my findings relating to Dreaming tracks and that another site Manbarram/Mt Cecil is in the vicinity, if not actually on the exploration licence, and I am confident that the grantee party will include this site in its consultations."

   Mr Ritter submitted that the Tribunal could not be satisfied that there would be no interference falling with s 237(b), unless the Aboriginal Heritage Act prohibited the holder of an exploration licence from interfering with sites of particular significance. He instanced two situations in which the Aboriginal Heritage Act would not be effective to that end. The first was that the relevant State Minister could grant a consent to interfere with a site under s 18 of the Aboriginal Heritage Act. The second was that an exploration licence may be transferred after 12 months and a transferee might not be issued with the Guidelines, nor fixed with sufficient notice of a particular site to preclude reliance upon the defence contained in s 62 of the Aboriginal Heritage Act. Mr Ritter went further and submitted that in those circumstances there was no need to review the factual matters such as the manner in which the Act was administered and the extent to which its provisions were obeyed as a matter of practice. Only if the statutory provisions legally prohibited interference with particular sites, so it was submitted, would there be justification in reviewing such factual aspects.

   Mr Ritter submitted that the Tribunal's conclusions on the effectiveness of the Aboriginal Heritage Act were unreasonable in a Wednesbury sense. Assuming, but without deciding, that such a submission raises a question of law (which the first respondent disputed and the second respondent conceded), I do not consider that this complaint is made out. The Tribunal reviewed the legal and factual matters to which I have referred immediately above, including the Ministerial discretion under s 18 and how often it had been exercised, and the extent to which the s 62 defence might remain available. The Tribunal then assessed the legislative and regulatory regime overall as being effective to the extent that it would not be likely that there would be interference with an area or site of particular significance. In my opinion the conclusion was very far removed indeed from one which could be characterised as unreasonable in the Wednesbury sense.

There was also a submission that there was no evidence that the Aboriginal Heritage Act and the related matters would ensure that there was no interference with the sites of particular significance. I reject that submission. First, there was the evidence to which I have referred above including the Guidelines, the assessment that the grantee parties will act lawfully, that to do so they will need to consult the native title parties, that the grantee parties who took part in the proceedings confirmed in writing and orally that they would so consult, and the manner in which the legislation was administered.

In oral argument, Mr Ritter acknowledged that ground (f) of the appeals was based on the complaint of Wednesbury unreasonableness and that in the Tribunal's determinations the “... s 18 matters ... really received inadequate treatment as a matter of law or as a matter of fact”. I have already dealt with the unreasonableness submission. There can be no doubt that the Tribunal considered the provisions of s 18, and how that section was applied in practice: see, for example, pp 19-21 in Smith. It is only necessary to read those pages to dismiss the suggestion, as I do, that the “s 18 matters” received inadequate treatment. They were assessed as part of the process which led the Tribunal to its ultimate factual conclusion. In my opinion, the appellants have not established any error of law on the Tribunal's part. As part of this submission it was said that the Tribunal had erroneously determined the legal effect of the Guidelines. I do not consider that this submission was made out. It is clear from the Tribunal's reasons that it understood that the Guidelines were only guidelines and not legally binding. They were to encourage compliance with the Aboriginal Heritage Act (see p 20 in Smith). The Tribunal's factual assessment was that the Guidelines would be significant (together with the other matters referred to above) in making it unlikely that there would be interference with areas or sites of particular significance. The real complaint is about the Tribunal's ultimate factual conclusion.

In the end, the appellants' complaints boil down to an attack on the weight of the evidence. For example, par 41 of the appellants' outline of submissions reads: "It is submitted the evidence was lacking to support the conclusions made." That submission and the complaints which immediately followed it about the series of assumptions made by the NNTT together with references to what are said to be deficiencies in the Aboriginal Heritage Act, do not, in my view raise questions of law as required by s 169(1) of the Act. What the appellants seek to do is to bring into question the weight which the Tribunal accorded to such matters as the Guidelines and their likely practical effect, the expressions of intent to comply with the Aboriginal Heritage Act, and the likelihood that people whose attention is drawn to a particular law will abide by it, on the one hand, and various other aspects (including the Senior Report in Ward II) on the other hand. To do this would be to usurp the function which Parliament has entrusted to the Tribunal. It was for the Tribunal, without being bound by technicalities, legal forms or rules of evidence (see s 109(3)), to conduct its inquiry and decide on the matters put before it. One of the factual inquiries it had to make was into the legal and practical effectiveness or otherwise of the Aboriginal Heritage Act. It is apparent from the Tribunal's reasons that it regarded that matter as being of basic importance in determining whether there was likely to be any interference with areas or sites of particular significance.

... It is sufficient for me to hold, as I do, that in inquiring and determining whether there was likely to be any interference with areas or sites of particular significance, the Tribunal did not err in law by taking into account the effectiveness of the Aboriginal Heritage Act, how it was administered in practice, the likelihood that the grantee parties would have to consult with the native title parties in order to comply with the Aboriginal Heritage Act and in those circumstances the likelihood that they would do so.’

1. In another early matter (Re Miriuwong and Gajerrong Peoples & Ors [1996] NNTTA 8; (1996) 128 FLR 90) the Tribunal (Member Kym Wilson) found that the expedited procedure was not attracted based on s 237(b). The Government party’s appeal against this determination was rejected in Ward/Lee J.  While Lee J adopted the approach to s 237, subsequently endorsed in Dann, and now superseded by the 1998 amendments, he nevertheless made the following comments which remain relevant (at 275-276):

   ‘The questions of law on which the State appealed from the determination of the Tribunal were said to be as follows:

   “1.The tribunal erred in law in finding that the Aboriginal Heritage Act 1972 is deficient in its protection of sites.

   2.The Tribunal erred in law in finding that the inquiry to be undertaken pursuant to s 237(b) of the Act involved a determination of whether the objector has a genuine and real concern as to the likelihood of interference with areas or sites of particular significance within the licence area.

   3.The Tribunal erred in law in finding that the evidence of the previous conduct of the grantee party admitted into evidence justified objection of the application of the expedited procedure.”

   ...

   The question of law in this submission was said to be a "no evidence" point, it being submitted that the Tribunal erred in failing to apply a "presumption" that the grantee of an exploration licence would act lawfully and, in particular, observe the terms of the Aboriginal Heritage Act which made it an offence to interfere with a site of significance. It was submitted that acting on that "presumption" the Tribunal should have concluded that it was unlikely that a site of significance would have been interfered with within the meaning of s 237(b) of the Act.

   The reasons provided by the Tribunal referred to the contents of the "Senior Report" but the Tribunal did not rely upon the report for the determination it made. Having found that sites and areas of particular significance to the first respondents existed within the area in respect of which the proposed exploration licence was to be granted, the Tribunal was entitled to consider how the terms of the Aboriginal Heritage Act bore upon those findings but the terms of that law did not remove other relevant matters from the consideration of the Tribunal.

   The protection against interference provided by legislation such as the Aboriginal Heritage Act was to be given such weight as the Tribunal considered appropriate in the circumstances of the case before it but the existence of that law did not require the Tribunal to conclude that the prospect of interference to a site of significance was removed by the application of a "presumption" that the law would be observed by a grantee party.’

1. The Court also held that it was appropriate for the Tribunal to have regard to evidence of the native title party that it believed that the grantee party would not act appropriately based on evidence of their prior experience with the grantee party (at 764).

2. For present purposes, it is pertinent to note that Lee J found that:

• the Tribunal was entitled to have regard and give appropriate weight to the Aboriginal Heritage Act (AHA);

• a ‘presumption’ that the grantee party would act lawfully was not conclusive in deciding that the AHA would be effective in protecting sites and preclude an assessment of the AHA effectiveness in particular cases; and

• the grantee party’s prior conduct (and native title party’s concerns about it) were relevant factors to be taken into account.

1. It is apparent from these cases that, although to this point there had been no reference to a ‘presumption of regularity’ in its determinations, the Tribunal had acted on the basis of a rebuttable presumption that the grantee party would behave lawfully and that the State’s regulatory regime covering the grant of mining tenements including the Mining Act and AHA were relevant but not necessarily decisive considerations in making a determination whether the expedited procedure was or was not attracted.

2. As far as I can tell the first reference by the Tribunal to a ‘presumption of regularity’, which is now challenged by the native title party, was made in Smith/DP Franklyn.  In endorsing DP Franklyn’s adoption of the predictive assessment approach, the Federal Court in Smith/FC made no adverse comments on DP Franklyn’s use of the term. In subsequent cases the Federal Court dealt with the relevance of the AHA and administrative procedures in the context of s 237(b). Although not specifically referred to by the Federal Court as a ‘presumption of regularity’, it is implicit in these cases that the issues could be considered on the basis of the Government and grantee parties acting lawfully in compliance with the Government party’s regulatory regime. It has made no adverse comment on the Tribunal’s use of a presumption.

3. In Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 (Little) RD Nicholson J said:

   ‘Whether act likely to interfere with areas or sites: s 237(b)

   75 As far as "sites" are concerned, it is accepted for the Grantee that, leaving aside the further affidavit of Bynder, the further evidence does show that the Kunturu site may be of particular significance to the applicants. However, it is submitted the Tribunal could not reasonably have concluded that exploration activities would be likely to interfere with any of these sites because all of them are subject to the protection of ss 16 and 17 of the Aboriginal Heritage Act 1972 and there is no evidence suggesting that it is likely this protection would be removed.

   76 Those sections read:

   "16. (1) Subject to section 18, the right to excavate or to remove any thing from an Aboriginal site is reserved to the Registrar.

   (2) The Registrar, on the advice of the Committee, may authorize the entry upon and excavation of an Aboriginal site and the examination or removal of any thing on or under the site in such manner and subject to such conditions as the Committee may advise.

   17. A person who -

   (a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site; or

   (b) in any way alters, damages, removes, destroys, conceals, or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site, commits an offence unless he is acting with the authorization of the Registrar under section 16 or the consent of the Minister under section 18.” addition s 18 makes provision for the Minister to give his consent to the use by an owner of land in a way which would be likely to result in a breach of s 17 in respect of any Aboriginal site having regard to the general interest of the community.

   77 For the applicants it is submitted therefore that the Aboriginal Heritage Act does not provide unqualified protection in these provisions but merely makes it an offence to damage sites contrary to the Act. Furthermore, the power of the Minister under s 18 to permit a breach of s 17 may occur in circumstances where a native title party has no right under the Act to make submissions to the Minister. Nevertheless, I do not consider it can be said it is likely such interference would occur given the protective effect of the sections in the Aboriginal Heritage Act. In other words the chance of such interference is not real and is remote in those circumstances.’

4. The Government party customarily submits, as it did in this case, that the Tribunal is bound by Little to find that the protective effect of the AHA means the chance of s 237(b) interference is remote. As explained below, the Tribunal has never accepted this contention to mean that the protective regime will always suffice to make interference with relevant sites unlikely.

5. In Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006) (Maitland Parker) (at [33]-[41]) I dealt with Western Australia’s regime for the protection of Aboriginal sites and referred to the use of the presumption of regularity in Walley in the following way.

   ‘Using the presumption of regularity, the Tribunal has generally found that this regulatory regime is adequate to ensure that there was not likely to be interference with sites of particular significance.  In part this conclusion was based on the defence not being available to a person who interfered with a site, given the endorsement on the licence and that the Guidelines would have put them on notice of their obligations under the Aboriginal Heritage Act.  This approach was recently endorsed by RD Nicholson J in Little (at [77]). In other matters, because of the number and nature of sites or because whole areas were regarded as of particular significance, the Tribunal has found that the expedited procedure was not attracted.  (Wilma Freddie/Western Australia/Stephen Grant Povey, NNTT WO99/882, Mrs Jennifer Stuckey-Clarke, 19 December 2001 and Maureen Young (Ngadju People)/Western Australia/South Coast Metals Pty Ltd, NNTT WO00/402, Mr John Sosso, 7 June 2001.) (Member Sosso also found that the concept of interference is potentially of wider impact than s 17 of the Aboriginal Heritage Act.)’

1. In Maitland Parker the native title party challenged the applicability of a presumption of regularity to the grantee party on the basis that it did not have a proper commitment to Aboriginal heritage based on its past behaviour.  The Tribunal accepted that this was a relevant matter, considered the facts advanced by the native title party and made the following findings:

   ‘[55]     Taking account of the allegations in the context of the evidence overall I cannot find that the grantee party has been so contemptuous of its obligations under the Aboriginal Heritage Act or existing agreements as to call into question the regularity of its future actions.  I am satisfied that the grantee party is aware of its obligations under the Aboriginal Heritage Act, has entered into previous heritage agreements with the native title party and that the native title party have conducted site surveys pursuant to these in the past and are currently engaged with the grantee party in one related to E47/1237.’

2. The Tribunal’s determination in Maitland Parker was subject to appeal and upheld by the Federal Court in Parker on behalf of The Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 where Siopis J said:

   ‘10The Tribunal went on to find that it was necessary to apply a predictive assessment as to whether the proposed future act was likely to give rise to the proscribed interference or disturbance.  This involved taking into account the grantee party’s intention in relation to the protection of Aboriginal heritage sites.  In its reasons, the Tribunal drew a distinction between a “buffer zone” surrounding the site and the Barimunya site itself.

   11The Tribunal referred to the statutory protective regime under the Aboriginal Heritage Act 1972 (WA) (the AHA). Section 17 of that Act provides that certain specified conduct in respect of an Aboriginal site, such as damaging or in any way altering the site, is an offence. Section 18 provides for a means of obtaining an exemption from the provisions of s 17 in the prescribed circumstances. The grantee party said that it would comply with its legal obligations under the AHA and would attempt to avoid Aboriginal sites but in the event there was a need to disturb a site, it would pursuant to s 18 make an application through the Aboriginal Cultural Material Committee, for consent to disturb the site.

   12The Tribunal said that the existence of the statutory protective regime and the expressed intention on the part of the grantee party to operate within the statutory regime was not decisive of the question of whether it was not likely there would be a proscribed interference with the Barimunya site under s 237(b) of the Act.

   13At [35], the Tribunal rejected the contention that the existence of the statutory protective regime meant that “in all cases the protective regime will be adequate to make s 237(b) interference unlikely” and said:

   Each case must be considered on its particular facts.  What is clear is that the Tribunal is entitled to have regard and give considerable weight to the Government party’s site protection regime.

   14At [47], the Tribunal observed:

   As already explained, the possibility that a s 18 application may be made is not, since the amendment to the Act in 1998, decisive (as it was prior to 1998) in leading to a conclusion that there will be interference with sites of particular significance. This possibility has always been a part of the Government party’s regulatory regime which has been considered by the Tribunal and Federal Court in Little. Its importance in deciding whether there is a real risk of interference with sites of particular significance will depend under the predictive assessment approach on all the circumstances. If the evidence were to be that exploration could not be carried out without avoiding sites or that a s 18 application was virtually inevitable then these circumstances would need to be given greater weight. It would still, however, need to be considered in the context of the number of sites, the consultative mechanism in place with the native title party through a heritage survey or otherwise and the attitude of the grantee party to site protection.’

3. The decision of Siopis J was upheld by the Full Federal Court in Parker v Western Australia [2008] FCAFC 23; (2008) 167 FCR 340. Branson J at [35]-[38] said:

   ‘35As the primary judge correctly noted, the reasons for determination of the Tribunal make clear that it appreciated that it was bound to take into account whether there was a real risk of interference with the Barimunya site otherwise than by conduct in breach of s 17 of the Aboriginal Heritage Act. At [34] of the Tribunal’s reasons for determination, the Tribunal referred to an observation concerning the protective effect of the provisions of the Aboriginal Heritage Act made by Nicholson J in Little v Western Australia [2001] FCA 1706. The Tribunal went on at [35] to state:

   The Tribunal has always given significant weight (as it must) to this finding but does not interpret it as meaning that in all cases the protective regime will be adequate to make the s 237(b) interference unlikely (see Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner and cases cited therein at [35] for a recent example). Each case must be considered on its particular facts. What is clear is that the Tribunal is entitled to have regard and give considerable weight to the Government party’s site protection regime.

   36As his Honour also noted, the Tribunal also appreciated the significance of s 18 of the Aboriginal Heritage Act to the determination it was required to make.

   ....

   38As the native title party’s written submissions reveal, their real complaint with respect to the Tribunal’s consideration of s 17 and s 18 of the Aboriginal Heritage Act is that the Tribunal gave too much weight to the protective provisions of that Act and insufficient weight to the risk of the grantee party obtaining a s 18 exemption in respect of the Barimunya site. The weight to be given to these matters for the purpose of making a finding of fact is not a question of law. It was for the Tribunal to determine the weight to be given to these and other relevant matters in making necessary findings of fact.’

Conclusion on ‘presumption of regularity’ issues

1. In my view the Government party’s contentions relating to whether it is appropriate for the Tribunal to rely on a presumption of regularity should be accepted.  In particular I accept the Government party’s contentions (para 11 and 12) that there is a presumption of regularity established by the Tribunal in expedited procedure objection matters determined by it under the right to negotiate provisions of the NTA, which is not the presumption of regularity referred to in Kingham v Sutton (native title party contentions para 12).  It is not a legal presumption but an approach to the facts which is appropriate on the evidence.  It does not fetter the Tribunal’s powers or discretion.

2. The words ‘presumption of regularity’ have a special meaning in the Tribunal’s determinations under the right to negotiate provision of the NTA.  What is meant by the words in this context has been well established since the determination in Smith/DP Franklyn and often repeated by the Tribunal since.  Despite the substantive issue of the Tribunal’s reliance on the Government and grantee parties acting lawfully in assessing the effectiveness of the Government party’s regulatory regime being before the Federal Court, no adverse comment has been made by the Court on the Tribunal’s approach.  I can see no impediment to continuing use by the Tribunal of this well established term.

3. I observe that in Ward/Carr J, in the passages quoted above, there is reference to ‘drawing an inference’ about the grantee party acting lawfully.  However, whether a finding that the Government and grantee parties will act lawfully is considered generally by reference to a specially defined presumption of regularity or is an inference made from the facts, the practical result is the same.

4. In my view, the issue raised by the native title party comes down to one of semantics.  Whatever legal approach is used (presumption of regularity or inference from the facts), expedited procedure objections are to be determined on the basis, that in the absence of evidence to the contrary, the Tribunal will presume that both the Government and grantee parties will act lawfully.  On that basis the State’s regulatory regime relied on is a relevant factor to be considered in deciding whether the expedited procedure is or is not attracted.

5. It needs to be emphasised, as is clear from the Tribunal’s determinations quoted above, that even if the presumption of regularity is applied this does not mean that the inevitable result will be a determination that the expedited procedure is attracted. The lawful adherence to the State’s regulatory regime is a relevant but not a decisive factor. Although the Tribunal has generally found in respect of s 237(b) that the State’s regulatory regime based on the AHA will be effective to prevent the relevant interference, this is not a necessary result of the acceptance of it. There are numerous cases where despite the acceptance of a presumption of regularity that the Government party and grantee party will comply with the AHA, the Tribunal has found, based on the evidence (usually that the area is rich in sites), that there is likely to be interference with them. In 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) at [81]-[91] Member O’Dea provides a useful summary of the Tribunal’s approach. Recently the Tribunal has found the expedited procedure was not attracted on the basis of s 237(b), whilst accepting that the Government and grantee parties will act lawfully (Banjo Wurrunmurra & Ors on behalf of Bunuba/Western Australia/Michael Ashley Giles, NNTT WO10/1175, [2011] NNTTA 73 (29 April 2011), Helen Shurven at [33]-[42]; 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 at [37]-[47]). The Tribunal’s Annual Report 2009-2010 (at p 84) reveals that by tenement in contested objection applications, 14 determinations were made that the expedited procedure applies and 20 that the expedited procedure does not apply.

6. The above overview of Tribunal determinations and Federal Court decisions reveal that it is appropriate for the Tribunal to continue to: first, presume or assume in the absence of evidence to the contrary that the Government and grantee parties will act lawfully; and second, if there is no evidence to rebut this presumption, to assess on the particular facts what weight is to be given to the State’s regulatory regime.

7. I now turn to what is the substantive issue on the evidence in these proceedings.  The native title party has submitted evidence which it contends should lead to a finding that the grantee party will or may not comply with the law (paras 18-25).  I accept the Government party’s contentions (paras 14-16) that the evidence in the press release of Minister Logan on 13 November 2007 does not lead to a finding that the grantee party in these proceedings will not comply with the law.  The information in the press release is of a general nature and in any event is now 3½ years old.  Further, although not a major issue, Minister Logan’s press release refers to exploration not prospecting sites.  While there are many similarities in the activities authorised by prospecting and exploration licences, there are also differences.  Generally, prospecting activities are less intrusive and involve less ground disturbance than exploration.  Minister Logan’s press release is not a technical document and it may be that his reference to ‘exploration sites’ also included some ‘prospecting sites’.  Nevertheless, the fact that this is not clear in the press release confirms my view that no great weight can be given to it.

8. The native title party also relies on Minister Logan’s press release and the DIA submissions to a DIA performance review committee (para 35) to contend that the Aboriginal Heritage Act is ineffective to prevent interference with sites of particular significance.  Again, this evidence is not on its own sufficiently persuasive to enable a conclusion that the Government party’s regulatory regime is ineffective, or that it will, in this case, lead to the likelihood that a site of particular significance will be interfered with.

9. The native title party does not say specifically how the allegations in Minister Logan’s press release or the DIA submissions are relevant to the circumstances of this case. The native title party’s evidence in relation to s 237(a), is limited to the issue of whether the grant would interfere directly with the community or social activity of ‘looking after country’, and there is no evidence of any relevant sites. The consequence of this is that on the facts of this case, the question of the Government party’s regulatory regime is of minor relevance and not really engaged. Similarly there is no substantive evidence in relation to s 237(c).

Government party’s alleged failure to comply with the NTA

1. The native title party contends (paras 40-43) that a Ministerial consent to interfere with a site given pursuant to s 18 of the AHA constitutes a future act and that, contrary to the NTA, the Government party does not give notice of them. I accept the Government party’s contention (para 24) that this is not a matter which is directly relevant for the Tribunal (see Freddie & Ors v Western Australia [2007] NNTTA 37; (2007) 213 FLR 247 at 264-265, [63]-[66]).

Community or social activities (s 237(a))

1. The native title party’s contentions and evidence regarding s 237(a) are not materially different to those before the Tribunal in Tarlpa and are confined to the argument that the activity of ‘looking after country’ is a community or social activity which will be directly interfered with by the grant of the proposed licence.  I adopt the relevant analysis and findings in Tarlpa (at [56]-[122]) and find the grant of the proposed licence is not likely to interfere directly with the carrying on of the community or social activities of the native title party.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions.  The Register kept under the Aboriginal Heritage Act 1972 (AHA) shows no registered sites within the proposed licence area, the nearest registered site is some 5 kilometres away. The AHA protects all Aboriginal sites, whether on the Register or not. The Register does not purport to be a record of all Aboriginal sites in Western Australia but there is no evidence from the native title party or elsewhere that there are sites of particular significance to the native title party on or in the near vicinity of the proposed licence area. It is sufficient to depose of the matter on this basis.

2. However, I also adopt the findings of the Tribunal in Maitland Parker (at [31]-[38], [40]-[41]), referred to above, and find that the AHA is likely to be adequate in this case to prevent interference with any sites of particular significance which may exist.

3. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to a RSHA (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [30]-[34] (Champion).  The RSHA contains processes for the protection of sites, including the conduct of a heritage survey.  In this matter the grantee party has offered to enter into the RSHA which is indicative of his awareness of his legal obligations under the Aboriginal Heritage Act, and there is no evidence that the grantee party will not comply with its legal obligations.  The Government party will impose the RSHA condition on the grant (see para [17] above) which gives the native title party the option to enter into it even though it is not in fact any longer ‘endorsed’ by the CDNTS (as successor to the Ngaanyatjarra Council) and is not the native title party’s preferred agreement.

4. Taking all of these factors into account, I find that there is not likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area.

Major disturbance to land and waters (s 237(c))

1. The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Dann; Little/Full Court at [52]-[57]).

2. The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration or prospecting will take place as well as the remedial regulatory regime in place.  It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration or prospecting activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that prospecting and exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion [74]-[79]) and the cases cited therein). The evidence in this case does not establish that the grant of the proposed licence will result in a major disturbance to land or create rights which will do so.

Determination

1. The determination of the Tribunal is that the grant of prospecting licence P38/3887 to Drew Griffin Money is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President
27 May 2011