Raymond Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) Limited - [2006] NNTTA 126

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) Limited, [2006] NNTTA 126 (25 August 2006)

Application No: WF06/21

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an Inquiry into a Future Act Determination Application

Raymond Dann, Barry Dodd, Wayne Warner, Ron Ronan, Rod Little, Clarrie Cameron, Rob Ronan, Betty Forsyth, Donna Ronan and Colin Whitby on behalf of the Amangu People (native title party)

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State of Western Australia (government party)

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Empire Oil Company (WA) Limited (grantee party)

FUTURE ACT DETERMINATION – WHETHER NOTICE COMPLIED WITH ACT

Tribunal: John Sosso

Place: Brisbane

Date: 25 August 2006

Hearing dates: 15 June 2006; 4 August 2006.

Representatives:-

Grantee Party: Mr Craig Marshall

Native Title Party: Mr Matthew O’Sullivan, Ms Leigh Simpkin

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

Catchwords: Native title – future act determination application – proposed petroleum exploration permit – jurisdiction – whether s 29(3) notice (tenement description) provided a clear description of the area that may be affected by the act in accordance with the Native Title (Notices) Determination 1998 – whether the section 29(3) notice was published in the appropriate print size – consequence of non-compliance with print size requirement – voluntary insertion of wrong information in the section 29 notice – challenge to section 29 notice dismissed – Tribunal has jurisdiction to conduct a section 139(b) inquiry.

Legislation:

Acts Interpretation Act 1901 s 25C
Native Title Act 1993 (Cth) ss 29, 35, 36, 38, 62, 109, 139, 148, 190B, 252
Native Title (Indigenous Land Use Agreements) Regulations 1999 regs 5, 6, 7, 8
Native Title (Notices) Determination 1998 cll 6, 8

Cases:

Adams v Lambert [2006] HCA 10 225 ALR 396
Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Dixon v Northern Territory (2001) 166 FLR 29
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken   Hill Pty Co Ltd (1911) 12 CLR 398
Harris v Great Barrier Reef Marine Park Authority (1999) 165 ALR 234
Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60
Holt v Manzie (2001) 114 FCR 282
Maitland Parker/Western Australia/Consolidated Iron Pty Ltd [2006] NNTTA   73 (13 June 2006) Deputy President Sumner
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
Minister for Planning and Infrastructure (WA)/Anderson/S and N Crees and   Sons [2004] NNTTA 78 (2 September 2004) Deputy President Sumner
Northern Territory v Lane (1995) 59 FCR 332
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Associated Gold Fields NL (1995) 125 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Tasker v Fullwood [1978] 1 NSWLR 20
Tickner v Chapman (1995) 57 FCR 451
Walley v Western Australia (1996) 67 FCR 366
Western Australia v Native Title Registrar (1999) 95 FCR 93

REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION

Introduction

On 15 December 2004, the State of Western Australia (the government party) gave notice under section 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant Exploration Permit 04/04-5 (the proposed tenement) to Empire Oil Company (WA) Limited (the grantee party).
The notice stated that the Exploration Permit would authorise the grantee to explore for petroleum, and to carry on such operations and execute such works as would be necessary for that purpose, for a term of six (6) years with the possibility of renewal for a further term of five (5) years.
The proposed tenement, comprising 965.9 square kilometres, is located approximately 20 km east of Eneabba in the shires of Dandaragan, Coorow and Carnamah and lies within the boundaries of the Yued Native Title Claim Group native title determination application (WC97/71) and the Amangu People native title determination application (WC04/2). The matter currently before the Tribunal involves a jurisdictional issue raised by the representative of the Amangu People. For the purposes of this matter I will refer to the Amangu People as the “native title party”.
On 9 May 2006, the grantee party applied to the National Native Title Tribunal (the Tribunal), pursuant to section 35 of the Act, for a determination under section 38. As at least six months had passed since the notification day, the grantee party was prima facie entitled to make this application – section 35(1)(a).
On 17 May 2006 I was appointed the presiding Member to constitute the Tribunal for the purposes of conducting the inquiry into the future act determination application.
On 15 June 2006 I convened a preliminary conference with the representatives of the native title party, the government party and the grantee party to determine if agreement could be reached on any issues and to sensibly prepare this matter for hearing. At this conference the representative for the native title party contended that the Tribunal lacked jurisdiction to proceed with the inquiry.
The representative for the native title party informed the Tribunal at the conference that it intended to raise a jurisdictional issue namely that, in its opinion, neither the government party nor grantee party had:
(a) notified the public in the determined way; and
(b) notified the public with a notice containing a statement to the effect that persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice.

It was contended that the suggested failure to notify the public appropriately were conditions precedent to the jurisdiction of the Tribunal. Moreover, it was also contended that when the Tribunal’s jurisdiction is challenged, it must make due inquiry and satisfy itself that it has jurisdiction. In that regard the representative for the native title party relied on dicta contained in Walley v Western Australia (1996) 67 FCR 366.

Both the native title party and the government party have provided detailed written submissions on the issues germane to the jurisdictional challenge which are as follows:

Native title party submissions:

Statement of Contentions of the native title party (NTPSC) filed 29 June 2006;

Statement of Contentions in Reply of the native title party (NTPSCR) filed 3 August 2006; and

Further Contentions of the native title party as to “Complete Description” (NTPFCCD) filed 14 August 2006.

Government party submissions

Statement of Contentions of the government party (GPSC) filed 20 July 2006; and

Statement of Further Contentions of the government party (GPSFC) filed 14 August 2006.

Notification Provisions

Before dealing with the substance of the challenge it is sensible to set out the various notification provisions that have a bearing on this matter.
“s 29 Notification of parties affected
Notice in accordance with section
(1)Before the act is done, the Government party must give notice of the act in accordance with this section.
Persons to be given notice
(2)The Government party must give notice to:
(a)any registered native title body corporate (a native title party in relation to any of the land or waters that will be affected by the act; and
(b)unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:
(i)any registered native title claimant (also a native title party); and
Note:Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.
(ii)any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act; and
(c)      if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) – that person (a grantee party); and
(d)     the registrar or other proper officer of the arbitral body in relation to the act.
Public notification
(3)     Before the act is done, the Government party or the grantee party must also notify the public in the determined way (see section 252) of the act, unless there is a registered native title body corporate in relation to all of the land or waters that will be affected by the act.
Notice to specify day and include prescribed documents etc.
(4)      The notice given under subsection (2) or (3) must:
(a)specify a day as the notification day for the act; and
(b)     contain a statement to the effect that, under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice; and
(c)      be accompanied by any prescribed documents and include any prescribed information.
Each notice to specify the same day
(5)Each such notice in relation to the act must specify the same day as the notification day.
s 252 Notify the public in the determined way
Definition
(1)The expression notify the public in the determined way means give notice in the way determined by the Commonwealth Minister for the purposes of the provision in which the expression is used.
Examples of ways that may be determined
(2)Without limiting the ways that the Commonwealth Minister may determine, he or she may determine that the notice may be given:
(a)     in newspapers (including newspapers catering mainly or exclusively for the interests of Aboriginal peoples or Torres Strait islanders); or
(b)     by radio broadcasts or television transmissions.

The Native Title (Notices) Determination 1998 (Commonwealth Gazette No. s440, 2 September 1998) (“the Notice Determination”) relevantly provides:
3.In this determination:
Act means the Native Title Act 1993.
6.(1) Notice under a provision of the Act mentioned in subclause (2) must be published;
(a)by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates, or if the area is an offshore place, the geographical area closest to it; and
(b) in a relevant special interest publication.

(2)The provisions of the Act are:
(f)subsection 29(3) (notification of parties affected);
(5)Notice under subsection 29(3) of the Act must include:
(a)a clear description of the area that may be affected by the act; and
(b)a description of the nature of the act; and
(c)the name and postal address of the person by whom the act would be done; and
(d) a statement of how further information about the act can be obtained.

Size of type in notices
9.A notice placed in a publication must be published in a print size at least as large as that used for most of the editorial content of the publication.”

Issues in contention

The native title party raised three main issues that cumulatively constitute the jurisdictional challenge.

[10] The first issue is whether the section 29 notice complied with clause 6(5) of the Native Title (Notices) Determination 1998 namely that it included: “(a) a clear description of the area that may be affected by the act.” The public notice produced to the Tribunal was published on page 104 of the West Australian newspaper on Wednesday 15 December 2004 in the Classifieds section. On that page of the newspaper there were four separate and discrete types of notifications, three of which contained multiple notifications. The notification in question for the proposed tenement was one of three which were grouped together. The description of the proposed tenement was stated as follows:

“NO               APPLICANT           AREA           LOCALITY  SHIRE
4/04-5EP      EMPIRE OIL           965.9km²      20kms east of Eneabba              Dandaragan
  COMPANY (WA)  NW corner is at Lat                   Coorow
  LIMITED  29^o 44’ 55.6”S, Long                 Carnamah  115^o 25’05, 1” E (GDA94)
  with application area
  extending southerly for
  approx 57 kms and
easterly for approx 35 kms”

[11] The notice contains a general description of the area of the proposed tenement (20 km east of Eneabba) and specific information for one geographical point and two directional measurements. The native title party made the following contention:

“The Native Title Party contends that the provision of three coordinates to describe an area is not a clear description of the area that may be affected by the act’ as required by c l6(5)(a) of the Notice Determination. The Notice only describes two boundaries of the tenement area. The Notice provides no indication of the direction, shape or length of the remaining side or sides of the tenement. The information provided allows for an infinite number amount of possible shapes that satisfy the description provided in the Notice. That the Notice allows for an infinite number of interpretations of the remaining side or sides of the tenement is irreconcilable with the requirement of ‘a clear description of the area that may be affected by the act’.”

The second contention is that the notice contained in the 15 December 2004 edition of the West Australian does not comply with clause 9 of the Native Title (Notices) Determination 1998, in that the Notice has not been published in a print size at least as large as that used for most of the editorial content of the newspaper.
The final contention is that the public notice did not comply with section 29(4)(b). The notice contained the following statement:
“Native Title Parties: Under section 30 of the Native Title Act 1993, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to any of the land and/or waters that will be affected by the act. The three months closes on 16 March 2005.”

[14] The essence of the challenge is that the government party has inserted the wrong day, it being 15 March 2005 and not 16 March 2005. The native title party’s contention is as follows:

“the native title party contends that the inclusion of an incorrect date in the second sentence amends the statement in the first sentence such that, taken together, the Notice no longer contains a statement the effect of which is to notify persons that they have until 3 months after the notification day to take the required steps. The effect of the statement in the first sentence has been amended by the effect of the statement in the second sentence such that it is no longer compliant with the subsection. The effect of the statement in the Government Party’s notice is that persons have until 3 months and 1 day after the notification day to take certain steps.”
The appropriate method of statutory interpretation

[15] The first issue is whether the various contentions of the native title party amount to a challenge to the jurisdiction of the Tribunal and, if they do, what is the proper approach to such a challenge.

[16] There are a number of Federal Court decisions and Tribunal determinations on the issue of whether a proper notice given under section 29 is a condition precedent to the jurisdiction of the Tribunal. The native title party drew the Tribunal’s attention to Walley v Western Australia (1996) 67 FCR 366. In that case Carr J held that the obligation to negotiate in good faith is a condition precedent to a negotiation party making application under section 35 for a determination by the Tribunal. To put it in another way: it is a condition precedent for the Tribunal having jurisdiction to make a determination that there have been negotiations in good faith by the negotiation parties (subject to section 36(2)). However, in reaching this conclusion Carr J analysed the obligations imposed by section 29. The following statement of the law is particularly germane to this matter (380-381):

“Mr Donaldson submits that it is not for this Court to imply a condition precedent into the Act where there is no such express condition. In my view, the answer to that submission is that to require compliance with the obligation contained in section 31(1)(b) before an application may be made under s 35, is not to imply a condition precedent. All that is involved is a statutory construction which gives effect to an express parliamentary stipulation. No implication of any condition is required … .
The applicant submits that Subdiv B of Div 3 of Pt 2 of the Act was intended to be read as a whole, sequentially and not out of context. I accept that submission. There are only two basic obligations imposed upon the government party by the Subdivision. The first is to give notice in accordance with s 29 and the second is to comply with the requirements of s 31(1). Both obligations are expressed in mandatory terms including the word ‘must’. Mr Van Hattem sought to distinguish the former obligation as one in respect of which compliance was entirely within the power of the government party without cooperation from any other party. He submitted that s 31 was very different in that regard. The obligation under s 29 was, so it was put, important and central to the process relating to permissible future acts. Failure to comply with the notice provisions might, so the submission proceeded, exclude people who ought to be involved in that process. Furthermore, so it was submitted there was a practical difficulty. Compliance with the notice requirements of s 29 was something which could be decided objectively. Whether there had been compliance with a duty to negotiate in good faith involved questions of degree … .
… I do not think that there is any substance in the distinctions which Mr Van Hattem sought to draw between the obligations expressed in s29 and those expressed in s 31(1)(b)…. All that was said about the importance of the notice provisions contained in s 29 applies equally, in my view, to the obligation imposed by s 31(1)(b).”

[17] The native title party also drew the Tribunal’s attention to the determination of Deputy President Franklyn in Dixon v Northern Territory (2001) 166 FLR 29 where he said (33):

“The native title party relies on the use of the word ‘must’ in s 29(1) and (3) of the Act and cll 6 and 5 of the Notice Determination to support its contention that the provisions of those requirements are mandatory. I am of the same opinion and agree with the conclusion of C J Sumner in Western Australia v Strickland (unreported, National Native Title Tribunal, No 98/9, C J Sumner, 30 October 1998), that the giving of the notices provided for by s 29 of the Act is a jurisdictional pre-condition to the right of the Tribunal to enter upon an inquiry under s 32 or s 35 of the Act. That, in my view, is explicit in the wording of s 29(1) and (3). Section 25(4) provides: ‘…if the procedures in this Subdivision are not complied with, the act will be invalid to the extent it affects native title’; see also Walley v Western Australia (1996) 67 FCR 366. The Subdivision there referred to is Subdiv P, Pt 2 Div 3 of the Act. The procedures there provided for include the giving of the notice under s 29(3). Section 25(4) in my view confirms that the giving of notice under s 29(3) ‘in the determined way’ is a pre-condition to the Tribunal’s jurisdiction.”

[18] There is a clear line of authority that the notification requirements mandated by section 29 are central to the effective operation of the right to negotiate. If there has not been proper notification of the proposed future act putative native title parties are potentially deprived of the valuable right to negotiate. The analysis of sections 29 and 31 undertaken by Carr J in Walley v Western Australia is not only binding on this Tribunal but incontrovertible. Without proper notification there cannot be negotiations in good faith as it is not clear that all potential native title holders have been informed and thus exercised their legal rights and sought to become registered native title claimants. Consequently, the whole scheme underlying the right to negotiate is undermined and the process initiated is defective. In such circumstances there is no legal basis for the Tribunal making a future act determination pursuant to section 38. The jurisdictional pre-condition for the Tribunal to make a determination is absent and the presiding Member is required to dismiss the future act determination application pursuant section 148(a) (“the Tribunal is satisfied that it is not entitled to deal with the application”).

[19] Accepting that a failure to properly notify the doing of a proposed future act under section 29 deprives the Tribunal of jurisdiction to make a future act determination, the next issue that necessarily arises is what course of action should be adopted when a negotiation party raises such an issue. This question has been answered by Carr J in Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 in the following terms (473): “In my view, when, as in this matter, a party to proceedings before the tribunal challenges its jurisdiction or authority, it is the duty of the tribunal to make due inquiry about whether it has that jurisdiction or authority.” When a clear jurisdictional issue arises, it is not open to the Tribunal to assume that it has jurisdiction simply because the challenge involves complex issues of fact or law or that determining such a challenge will necessarily delay proceedings – see Anaconda Nickel v Western Australia (2000) 165 FLR 116 at 133. In this matter the challenge clearly raises a serious issue that goes to the heart of the Tribunal’s legal authority to make a future act determination. As Barton J said in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Co Ltd (1911) 12 CLR 398 at 428: “Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance, just as it may become the duty of the superior court.” Even though the Native Title Act 1993 contemplates that in the usual course the Tribunal will make a future act determination within six months of the relevant negotiation party making a section 35 application (see s 36A “Ministerial determination if arbitral body determination delayed”), and the separate hearing of jurisdictional challenges necessarily impacts negatively on the Tribunal being able to meet those time limitations, the legal obligation placed on the Tribunal is to fairly and properly deal with jurisdictional challenges. The risk of course, is that if such challenges are made routinely and the Tribunal becomes embroiled in constantly dealing with such matters, the Attorney-General may intervene pursuant to section 36A and make a substitute determination. Be that as it may, the proper and only course of action open to the Tribunal when a party properly challenges its jurisdiction is to hear that challenge before it proceeds further.

Project Blue Sky

[20] It follows from the previous discussion that it is necessary to determine if the government party has complied with the notice requirements prescribed by section 29. The government party in its initial contentions drew to the Tribunal’s attention a number of determinations on whether strict compliance with the notice requirements was required. In particular, the government party sought to rely upon various dicta in the following matters:

(a) Western Australia/Maduwongga/Plutonic [1998] NNTTA 12, Member Sumner;
(b) Western Australia/Maduwongga/WMC Resources Ltd [1998] NNTTA 13, Member Lane;

(c) Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87;
(d) Koara People/Western Australia/Australian Gold Resources Ltd [2000] NNTTA 24, Member Sumner;

(e) Western Australia v Dimer (2000) 163 FLR 426; and
(f) Northern Territory v Ward (2001) 167 FLR 398.

After quoting extensively from these determinations, the government party made the following submission:
“It is submitted these cases referred to above, other than perhaps Dixon which did not offer any or any significant comment on this issue, show that strict compliance with the technical requirements of s 29 of the Act and of the Notices Determination is neither desirable nor required, both as a matter of common sense and through the application of s 109 of the Act and/or s 25C of the Acts Interpretation Act. Even though they do not deal with similar factual circumstances these cases show that what is required is a common sense approach to the interpretation of the requirements of s 29 of the Act and of the Notices Determination and their application to the Notice under consideration herein. The Government Party submits the interpretation of the Notice advocated herein is, on such view, the proper interpretation to take in this matter for it gives a clear and practical meaning to the Notice supported by the subsequent actions of the parties to this objection application.”

[22] The native title party contends that:

“… nowhere in the authorities is there support for the proposition that the correct test is that of a ‘common sense’ approach to the interpretation of the requirements of s 29 of the Act and the Notices Determination and their application to the Notice under consideration; nor is there support for the proposition that the subsequent actions of the parties is of relevance to the current proceedings. Absent the relevance of s 25C of the Acts Interpretation Act, the test is that laid down in Project Blue Sky and followed in NT v Mirriuwung Gajerrrong (2001) (Ward) 167 FLR 398.”

[23] It is clear that in some of the earlier decisions and determinations on the proper interpretation of section 29 there is reliance on the mandatory/directory approach to statutory interpretation which was rejected by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. It is appropriate to quote in full the useful analysis of the proper approach to statutory interpretation given by McHugh, Gummow, Kirby and Hayne JJ in that case (388-391):

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said ‘a clause is directory where the provisions contain mere matter of direction and nothing more’. In R v Loxdale, Lord Mansfield CJ said ‘there is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory’. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless that has been ‘substantial compliance’ with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: ‘substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not’.
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticizing the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory, and if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

[24] Relating that statement of the law to the matter at hand, Parliament imposes a duty on a government party to issue a notice under section 29 for a limited class of future acts. The arrangements or procedures which are required to be followed in fulfilling that statutory duty are mandated by the terms of sections 29 and 252 as well as in the Notices Determination. The two issues to be determined by the Tribunal are, first, whether the government party has complied with the notice requirements, and second, if it has not complied with those requirements the consequences of that failure. To resolve those issues the Tribunal must determine the intention of the Parliament by examining the language of the relevant notice provisions in the context of the scope and objects of the Native Title Act as a whole, taking into account the practicalities of complying with the various requirements and the implications that would otherwise flow from non-compliance.

The Relevance of section 109 and section 25C of the Acts Interpretation Act

[25] Two issues can be dealt with at the outset. The government party contends that in reaching a proper conclusion on the nature of compliance with the notice requirements of section 29, regard can and should be had to section 109 of the Act and section 25C of the Acts Interpretation Act 1901.

[26] The government party seeks to rely on subsections (1) and (3) of section 109 which provide as follows:

“(1) The Tribunal must pursue the objectives of carrying out its functions in a fair, just, economical, informal and prompt way.
(3) The Tribunal in carrying out its functions is not bound by technicalities, legal forms or rules of evidence.”

[27] There are a number of Federal Court decisions where reliance has been placed on section 109 when considering the performance of statutory duties mandated by the Act – see Northern Territory v Lane (1995) 59 FCR 332 at 336 per O’Loughlin J. However, section 109 is drafted on the assumption that the Tribunal has jurisdiction, and in carrying out its functions it should operate in a certain manner. The issue here is not the manner in which the Tribunal should operate when making a future act determination, but if the Tribunal has any legal basis for doing so.

[28] Secondly, the government party seeks to rely on section 25C of the Acts Interpretation Act 1901, which provides as follows:

“Where an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.”

This submission would have force if the question to be determined was the degree of compliance with the requirements of a prescribed form. In the past the Federal Court has had recourse to section 25C when determining if there has been sufficient compliance with forms prescribed for the purposes of the Act – see Northern Territory v Lane (1995) 59 FCR 332 at 353-354 per O’Loughlin J. The problem with this contention is that no form for section 29 notices is prescribed by the Act, the Native Title (Notices) Determination 1998 or any subordinate legislation made pursuant to the Act. Section 29(3) imposes on government parties the requirement to “notify the public in the determined way”. The content of that obligation is explained by section 252, which specifically empowers the Commonwealth Minister to determine the means by which the public can be notified. Subsection 252(2) gives as examples, notification in newspapers and by means of radio broadcasts or television transmissions. The Native Title (Notices) Determination 1998 sets out in a very prescriptive manner the type of notice required. The Determination does not however, specify a form. Despite this the government party contended (GPSFC at para 350: “while the Notices Determination does not prescribe specific forms, it nevertheless provides directions as to the form and the content of the notices and in that sense it can be said s 109 of the Act and s 25C of the Acts Interpretation Act should be regarded as applicable to the Notice under consideration.” The clear wording of section 25C is inconsistent with this submission. Clearly section 25C has been drafted on the assumption that either the Parliament or the Executive have prescribed a form which needs to be completed in order for a state of affairs to eventuate. Section 25C has not been drafted to deal with situations where a clearly described form has not been prescribed but there are merely directions, albeit quite detailed directions, on the manner of completing a notice.

A clear description of the area that may be affected by the act

[29] The first issue in contention is whether the section 29 notice complies with clause 6(5)(a) of the Notices Determination by including “a clear description of the area that may be affected by the act.”

[30] The native title party contends that:

(a) the provision of three coordinates provides no indication of the direction, shape or length of the remaining side or sides of the proposed tenement;
(b) the information contained in the notice allows for an infinite number of interpretations of the shape and size of the proposed tenement; and
(c) the boundaries of the proposed tenement require clear description.

Particular reliance was placed by the native title party on the decision of Deputy President Franklyn in Dixon v Northern Territory (2001) 166 FLR 29. The matter concerned a section 29 notice issued by the Northern Territory. The notice contained information on the tenement number, the applicant grantee, the area, the locality, a centroid and a description by reference to longitude and latitude.

[32] The area of the proposed tenements was expressed in terms of “BLKS”. Deputy President Franklyn made the following finding (at 36):

“Mr Whitfield also gave oral testimony at the hearing. He explained that the reference in the notice to ‘BLKS’ under the heading ‘Area’ is a reference to ‘blocks’, an expression in the Northern Territory Mining Act, and referred to it as an expression of ‘area’. It is my opinion that, to someone not conversant with the expression ‘Blocks’ as used in the Mining Act, the reference to BLKS is unlikely to be readily understood as ‘Blocks’ or as a term used in that Act. In any event it gives no indication of the area involved.”

[33] Under the heading ‘LOCALITY’ was a reference to a township or other identifier together with its distance from a named place. For example one tenement was described as “LANCEWOOD 27 km E’ly of Kiama”. Deputy President Franklyn made these findings on this type of description (at 36 -37):

“Mr Whitfield explained that the names in large print under the heading ‘Locality’ are names of scale maps relevant to the specific localities in which the proposed blocks are situated. He pointed out that the area of the proposed tenement is further detailed under the heading ‘Locality’ by distance and direction from a feature within that map, the result being to ‘fine down’ the large locality identified by the map to a smaller locality. He agreed that the directional references of ‘SE’ly’ and E’ly and SW’ly (south-easterly, easterly and south-westerly respectively) mean that if one traveled in such a direction from the feature referred to, the direction traveled would generally be ‘plus or minus 10 degrees from east’, and that there could be a 20 degree variation starting from the designated point (the feature) getting exponentially greater as one traveled further from that point. His evidence is that if one followed that direction or the directional distances shown under ‘Locality’ it should take one to the ‘centroid’. It was his evidence that the centroid in each case is within the proposed tenement area. I understand him to be referring to the particular case of these proposed tenements as the information supplied at my request from the geospatial team from the Tribunal is that the centroid is not always in the centre of the blocks by which the tenement is described nor even necessarily on the tenement, this depending on the shape of the tenement.”

Deputy President Franklyn came to the conclusion that the notice issued by the Northern Territory did not contain a clear description of the proposed tenement. A member of the public not experienced in mapping, surveying and spatial reference of geographic data would have had difficulties in understanding the notices. In particular, Deputy President Franklyn (at 38) referred to the definition of “block” in the Mining Act (NT), which in turn referred to “graticular sections”. He concluded as follows (39-40):
“It is clear from s 16(2)(a) that exploration licences can have a multiplicity of configurations and that the configuration boundaries and area of the land covered in any particular exploration notice is not made clear by the descriptions given in the notice. That this is recognised by the Government party, is in my opinion, self-evident from the statements taken from the evidence of the witness Mr Whitfield and the oral submissions of Mr Lavery set out above. Even reading the relevant sections of the Mining Act does not reveal, in layman’s language, the area (size) of the tenement. It is the notice that is advertised that must provide a clear description. The evidence satisfies me that it does not do so and, in fact, requires the readers of the advertisement to engage in substantial further inquiries, which may not be open to some, to enable identification of the boundaries and the area that will be affected by the act.”

[35] The determination of Deputy President Franklyn concerned advertisements in the Northern Territory. Further, a determination by one Tribunal Member is not binding on another in non-related proceedings – see Re Smith (1995) 128 FLR 300. However, for the purposes of this matter much of the reasoning of Deputy President Franklyn in that part of this decision relating to a clear description of the area that may be affected by the act (at 33-39) has been of assistance.

[36] The government party submits (GPSC at para 25) that while three points are provided in the notice “by logical extension there is a fourth point, 35 km east of the first point, the last point in a series of 4 providing a rectangular boundary surrounding the extremes of the land the subject of the proposed licence.” Consequently the government party submits that it has provided a “boundary box” within which the land the subject of the proposed tenement falls and thereby provides a clear description of the area that may be affected. Further, the government party contends (GPSC at para 25) that if an exact description of the area was required “it is doubtful such a proposal would make any area in question ‘clear’ to the public because the ability to comprehend or give meaning to such a description or definition requires members of the public to possess some sort of mapping ability or capability; without this ability, the description is merely a complex, not-easily-intelligible group of mapping coordinates.”

[37] The requirement placed on a government party is to provide a “clear description of the area that may be affected by the act”. What is a “clear description” is a question that can only be answered on a case by case basis. It is a question of fact and degree. In each matter where a challenge is made on the basis that the description is not clear, the Tribunal must assess the evidence presented and make a determination based on a common sense approach – per Woodward, Northrop and Jenkinson JJ in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356. The key issue is whether a putative native title claimant is provided in the public notice with sufficient material to enable that person or persons to make an informed decision whether to file a native title determination application in response to the notice. Such a putative native title claimant must be placed in a position to determine if the proposed future act may affect (cf s 39(1)(a)):

(a) the enjoyment of any native title rights and interests;
(b) the way of life, culture and traditions of the putative claim group;
(c) freedom of access to the subject area in order to carry out rites, ceremonies or other activities of cultural significance; or
(d) any area or site of particular significance to the putative claim group.

[38] The Notices Determination does not impose a duty on the government party to provide an “exact description” of the proposed area. If complicated mapping coordinates are provided by a government party an exact description may well be a very unclear description. To that extent I agree with the submissions of the government party.

[39] The government party, however, went on to contend (GPSC para 25): “a map provided in the Notice as printed in a newspaper would not be of any real assistance having regard to the nature of newspapers given the loss of detail of the map resulting from the necessary reduction in size of a map from a clearly defined and appropriately sized map to a map reduced to the size required for inclusion in a Notice placed in a newspaper.” With respect, this contention has little to commend it. Governments in a number of other jurisdictions, including Queensland and the Northern Territory, routinely include maps in all public notices. Those maps set out in relatively clear terms the area of proposed tenements. Prima facie, those maps together with the written information contained in the public notices, provide a clear description of the proposed area of the relevant future acts. It is correct for the government party to point out that the inclusion of a map per se in a public notice does not necessarily meet the requirements of a “clear description”. I agree with the contention of the government party (GPSFC at para 20) that “the use of a map is not determinative of clarity.” A map without identifying features and which is so small as to be practically unreadable, may offer little assistance to putative native title claimants. Moreover the Act itself inferentially recognizes that mapping is an imprecise art (see the reference to “reasonable certainty” in s 190B(2)). As a matter of common sense however, the type of maps routinely inserted, pursuant to section 29(3), in public notices by the governments of other States and Territories are of a type which ostensibly provide a clear description of proposed future acts. While it is a matter for the State of Western Australia, it is hoped that in the future further consideration will be given to adopting a similar approach to public notification as occurs elsewhere in Australia.

[40] The government party seeks to distinguish Dixon by contending that some of the flaws in the public notices considered by Deputy President Franklyn are not apparent in the subject public notice (GPSC at para 27):

“There is a significant difference between the respective Notices – as to the information provided as to the area involved, the ‘Dixon Notice’ provided information as ‘BLKS’ while the within Notice provides a measure in square kilometres that could be easily identified by the reasonable person; while the information provided as to locality in the former required an awareness of ‘scale maps’, the relevance of a feature listed therein under the heading ‘Locality’ and the meaning and use of the term ‘centroid’, the latter relevantly provides advice as to the nearest town (‘Eneabba’) and the 3 shires within the land the subject of the proposed licence is situated, making identification of that land relatively simple to persons living on, or having an interest in, that land. Accordingly the Notice the subject of these proceedings is distinguishable from that considered in Dixon and should not be treated in the same manner as the Notice the subject of that case.”

[41] The native title party correctly concedes (NTPSCR at para 46) that the employment of square kilometres rather than Blocks addresses one of the major deficiencies in the Northern Territory notices considered in Dixon. One of the problems with the Northern Territory notices was the absence of a clear identification of the area of the proposed tenements. In contradistinction, the notice under consideration in this matter contains a clear description of the area or size of the proposed tenement.

[42] Nonetheless, the native title party contends that the inclusion of “square kilometres” as an identifier does not of itself cure the alleged deficiency in the notice (NTPSCR at para 47):

“Square kilometres, while immediately more cognisable and accessible to a layperson, carries with it an infinite number of possible configurations, such configurations only being constrained by other spatial references within the description. The only other spatial references in the current notice with the potential to constrain the infinite number of configurations of area are the definite point identified within the Notice as the north west corner, and the directional references extending from that point.”

[43] The native title party also contends (NTPSCR at para 48) that the evidence adduced in Dixon was that the directional distances have a margin of error of up to 20 per cent, and that this evidence should be adopted in these proceedings. Maps were annexed to the native title party’s contentions illustrating the possible consequences of such a variation. I accept the rebuttal of the government party (GPSFC at para 18) to this contention, that the evidence of a “20 per cent margin of error” in Dixon was based on untested evidence that was not explicitly adopted by the Tribunal and in any case related to an aspect of the particular Northern Territory public notices which are different from the description under consideration in this matter.

[44] The native title party further contends that tenements have a multiplicity of configurations, but the external boundaries of such tenements can never be clearly defined by means of the type of public notices issued by the government party. Those notices provide three geographical points. However, those points of themselves provide no indication of the direction, shape or length of the remaining side or sides of the proposed tenement. The boundaries of advertised tenements are thus, inherently unclear. To bolster its submission, the native title party provided a map of the area of the proposed tenement superimposed with the three directional points notified. The map showed the south east directional point linked to the north western directional point in the shape of triangle. The boundaries of the triangle did not include all of the area of the proposed tenement. This was intended to illustrate that on one possible configuration the public description was not only not clear, but arguably misleading as it excluded part of the area of the proposed tenement (NTPSC at paras 13-15).

[45] In its further contentions, the government party pointed out (GPSFC at para 14) that clause 6(5)(d) of the Notices Determination requires the government party to include a statement of how further information about the act can be obtained. The conclusion said to be drawn from this was “the Notice is not intended to be the sole source of all information about the act.” This may well be the correct conclusion to be drawn from the wording of clause 6(5), but it does not address the key issue of whether the public notice contains a clear description of the area or not. If a notice fails to contain a clear description of the area that may be affected by the act this deficiency is not remedied by providing details, in conformity with clause 6(5)(d), how a clear description can be provided. It is not possible to remedy non-compliance with clause 6(5)(a) by providing ex post facto, and at the request of a putative native title claimant, the information that should have been included in the public notice. As a matter of logic, if a clear description of the area that may be affected by the proposed future act is not given, a putative native title claimant may not seek further information as they may have proceeded on a fundamentally incorrect premise about the location of the proposed tenement from the outset. Consequently the provision of further information is intended to supplement the basic material required to be included in the public notice, not to remedy faults in the public notice.

[46] The government party also contended, firstly, (GPSFC at para 15) that there was no evidence and

“… no reason to suspect, that anyone seeing the Notice would not have sufficient information to be alerted and take steps to lodge a native title claim if they so wished. Nor is there any evidence, or any suggestion, as to why a potential claimant may have lodged a claim if they knew the precise boundaries of the tenement but would not have lodged a claim in circumstances where they knew the precise location of the tenement but not its precise boundaries.”

[47] On a similar note the government party submitted that even if there were failings in the public notice the native title party was not prejudiced as it had become a native title claimant on 3 March 2005 and had been in a position to protect its interests. The government party contends (GPSC at para 41):

“The Government Party says it has given notice to the NTP sufficient for such purposes (ie having regard to its character as a native title claimant) when regard is had to the totality of the circumstances of this matter notwithstanding any technical breach of the Act as to the requirements of s 29(2) of the same (particularly concerning advice as to the notification day required by s 29(4)(a) of the Act and the statement required under s 29(4)(b) of the Act, neither of which would seem in practice to materially affect a party that is nor has become a native title claimant) and given that the future act has yet to be done, the NTP has become and remains a native title claimant and has protected and retained its rights under the Act despite the concerns outlined herein.”

[48] The government party went on to contend (GPSC at para 44) that the jurisdictional challenge should be dismissed for, amongst other reasons:

“on a common sense, practical reading of the Notice having regard to the nature of the involvement of the NTP in these proceedings, it is clear that the NTP and its agents did in fact understand the Notice to meet the requirements of the Act and of the Notices Determination and the NTP was not misled or prejudiced by it or its contents to any or any material extent. Finally, the challenge should be dismissed because the NTP has been protected as a result of its characterization as a native title claimant and developments noted above flowing from the same.”

[49] The contentions of the government party are novel but do not address the fundamental issue of whether the advertised notice complies with clause 6(5)(a) of the Notices Determination. Fundamentally, from an evidentiary point of view, it is impossible to establish whether any putative native title claimants have failed to file a native title determination application either because the notice was clear or unclear. It is impossible to determine, ex post facto, if the failure to file an application was based on the fact that a putative claim group was confused about the area or whether they were clear about the area but did not seek to commence proceedings for other reasons. The only issue which this Tribunal has to determine is whether the advertisement did or did not clearly describe the area of the proposed tenement. It is neither helpful nor relevant in deciding this issue to speculate about the state of mind of persons or the motivation of people in acting or failing to act.

[50] The native title party responded to the second part of the government party’s contentions as follows (NTPSCR at para 74):

“The NTP contends that paragraphs [38] to [41] of the State’s Contentions are irrelevant and non-responsive (sic) the NTP’s Contentions. The NTP has not contended that the NTP has not been availed of the rights in Subdivisions P with respect to the proposed future act. Furthermore nowhere in the authorities is there support for the proposition that the NTP does not have standing to challenge the Tribunal’s jurisdiction with respect to non-compliance with s 29(3).”

[51] It is not contested that the native title party has not been disadvantaged by the alleged failure of the government party to publish a notice in compliance with clause 6(5)(a). However, material disadvantage is not a pre-condition to a party challenging jurisdiction because of alleged statutory non-compliance. Without contending directly, the government party seems to suggest that a form of estoppel or waiver is raised against the native title party because it has been properly notified. As the native title party points out, such a contention is not supported by any authority. Indeed, a somewhat similar contention was considered by the Full Federal Court in Tickner v Chapman (1995) 57 FCR 451. The Court considered the relevant provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) authorizing the Minister making a declaration protecting a specified area from injury or desecration. Before making such a declaration, section 10 required the publication of a notice stating the purpose of an application for a declaration and inviting representations from interested persons and the giving of due consideration to such representations. The Court had to consider, inter alia, the adequacy of the notice. One contention raised in favour of the published notice was that “everyone knew” what the issue was and had, accordingly, suffered no disadvantage from the form of the notice. Black CJ in rejecting such submission said (461):

“In this, and in other respects, any suggestion that ‘everyone knew’ what the matter was all about is quite beside the point. Carried to its logical conclusion such an approach would render almost redundant the requirement, intended by the Parliament, that there should be published a notice having particular characteristics. In my view, the language of s 10(3) and the important purpose of the notice in the process of reporting and decision-making provided for by the section, requires the conclusion that a failure to state the purpose of an application invalidates the s 10 process.”

[52] Turning now to the key issues, namely whether the government party has complied with clause 6(5)(a), and secondly, if it has not, whether this invalidates the act and deprives the Tribunal of jurisdiction. The second question only needs to be answered if the Tribunal determines that the public notice did not contain a clear description of the area that may be affected by the proposed future act.

[53] When construing a provision, regard must be had to its place in the wider statutory scheme, having regard to the purpose of the statute and endeavoring, as far as possible, to construe the legislation “on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will give best effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.” – per McHugh, Gummow, Kirby and Hayne JJ Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382.

[54] The Native Title Act 1993 is beneficial and protective in character and must be interpreted accordingly – see Pareroultja v Tickner (1993) 42 FCR 32 at 44, Northern Territory v Lane (1995) 59 FCR 332, Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 and Western Australia v Native Title Registrar [1999] FCA 1594 at [67]. In particular for present purposes, the right to negotiate regime offers native title holders significant benefits, the loss of which seriously undermines the protective character of the legislation. Accordingly, if two interpretations of a provision are open, the Tribunal will as a matter of statutory interpretation, prefer the interpretation that protects and enhances the rights of native title holders. There are a number of Federal Court decisions emphasizing this approach, for present purposes however, I refer to the following statement of law by French J in Smith v Western Australia (2001) 108 FCR 442 at 450: “The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed.”

[55] The object of the notification provisions was clearly explained by Deputy President Franklyn in Dixon v Northern Territory (2001) 166 FLR 29. I adopt for the purposes of this matter the following statement of the law provided by Deputy President Franklyn (33-34):

“The giving of notice ‘of the act’ as required by s 29(1), (2) and (3) carries the necessary implication that the notice must describe the act with sufficient particularity that the registered native title party and any member of the public can identify the land the subject of the act…It is also important to recognize that a notice which does not contain a description sufficient to enable a prospective native title claimant of the opportunity to identify such land and consequently of its right, not only to negotiate, but to object to the application of the expedited procedure in respect of so much of the land the subject of the proposed grant as lies within the land to which it claims native title.”

[56] It is clear then, that public notification of a proposed future act is intended to alert prospective native title holders and a failure to comply with the notification requirements prescribed in the Notices Direction potentially can result in such persons being deprived of the valuable right to negotiate. In short, public notification plays a central role in giving effect to the provisions of Subdivision P and provisions requiring it need to be carefully construed so that the policy of the Act in enabling registered native title claimants to either negotiate in good faith or object to the assertion of the expedited procedure are not diminished.

[57] The term “clear description of the area” is not defined either in the Act or in the Notices Determination. It should be noted however, that apart from clause 6(5)(a) which is directed solely to notices given under section 29(3), a similar requirement is mandated in clause 6(4)(a) (notices given under section 26A(5)(a) or section 26B(6)(a)), clause 6(6)(b) ( notices under sections 66(3)(d), 66A(1)(e)(ii) or 66(2)(b)(ii)) and clause 8(3)(a) which relates to notices given under Subdivisions G - J.

[58] While there are no Federal Court decisions on clause 6(5)(a) some guidance is provided by the decision of Kiefel J in Harris v Great Barrier Reef Marine Park Authority (1999) 165 ALR 234 which dealt with the adequacy of notices issued by the Great Barrier Reef Marine Park Authority (GBRMPA) pursuant to clause 8(3)(a). This subclause requires the notifying agency to provide a notice which includes: “a clear description of the area that may be affected by the acts or class of acts.”

[59] Native title claimants sought further particulars of activities proposed by the grant of numerous permits by GBRMPA for tourism, fishing, research and related activities in and around the Cairns section of the Great Barrier Reef Marine Park. The notices were mostly drafted in general terms, usually not specifying the exact area of the proposed activities, but in most cases just referring to zones.

[60] Kiefel J pointed out that the Great Barrier Reef Marine Park Act 1975 (Cth) provides for areas of the park to be identified and regulated through zoning plans. The area of the Park intersected by the sea claim of the applicants was the Cairns section of the Park.

[61] The future acts in question in this matter fell with Subdivision H (management of water and airspace), and thus the only procedural rights provided for were the right to be notified and the right to comment – s 24HA(7).

[62] Kiefel J found that the notices provided to the native title claimants did not contain a clear description of the area, and she ordered (at 242) that GBRMPA provide the applicants with a clear description of any part of the applicants’ sea claim that was possibly affected by a grant of a permit. Her Honour said (240-241):

“native title claimants will need to be alerted to that part of their claim area to which the proposed licence or permission relates, so that they might make a meaningful comment upon its significance or otherwise and as to whether the rights they claim will be impacted upon. “The area that may be affected’ in my view refers to that part of the native title claim area and requires it to be identified. In the case of the notices here which refer to all zones and locations within the Far Northern and Cairns sections of the park, all that the applicants are effectively advised is that the whole of their sea claim area, and areas beyond it, are involved. With respect to the smaller number which do specify some particular locations, it is possible that they identify points within the sea claim area. The matter has not been addressed. In any event, in their specification of areas outside the claim area they do not comply with the requirements of the determination. I add that it would seem to me that a mere nomination of points or areas referred to in an application for permit, which are located in the sea claim area may not in all cases be sufficient. The terms of the determination would require the respondent to consider what areas within the sea claim area may be affected, wherever the activities are conducted.”

[63] On appeal, the Full Federal Court (Heerey, Drummond and Emmett JJ) set aside the order made by Kiefel J requiring GBRMPA provide to the applicants a clear description of any part of the claim area potentially affected by the proposed future acts - Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60. The Full Federal Court held that the notice requirement in section 24HA(1)(a) referred (at [56]): “to the area the subject of the proposed permit or authority rather than the subject matter of the native title claim.” The Court also referred to the following submission of GBRMPA (at [55]): “This construction (referring to that of Kiefel J), according to the Authority, creates practical problems. In most cases, particularly with respect to applications involving tourist operations, the Authority was unable to be more specific about the intended route of vessels or where they might moor. For example, applications are commonly sought for permission to generally roam over and between zones.”

[64] Accordingly, the analysis of Kiefel J of what constitutes a “clear description” was not in error, only Her Honour’s conclusion that the Authority should have identified that part of the claimed area impacted by the notices.

[65] I read Kiefel J as holding that a “clear description” in the context of the Notices Determination, requires the notifying party to provide sufficient information such that a native title claimant would be in a position to ascertain with a degree of certainty which part of the area of the native title determination application may be affected by the doing of the proposed future act. I do not read into Her Honour’s judgment that in every instance the notifying agency is required to provide a full or complete description of the area, but that sufficient information be provided so that a native title claimant or in the case of Subdivision P, a putative native title claimant, is put on notice of the proposal and can take such further steps as are necessary, including seeking further information as required by clause 6(5)(b). Nonetheless, a description which simply referred to “points or areas” may not be sufficient. In that regard the determination of Deputy President Franklyn in Dixon is, I would suggest, consistent with the thrust of Kiefel J’s analysis.

[66] As is evident from the previous discussion, there are a number of provisions in the Act and the subordinate legislation which require the provision of information designated to clearly identify areas of land and water the subject of applications or notices. The government party (GPSFC at para 13) draws attention to sections 62(2) and 190B(2) and makes the following submission:

“The purpose of a s 29(3) Notice is to give potential native title claimants an opportunity to lodge a claim and become a native title party in respect of the proposed future act. There is no indication in the Act that a ‘clear description’ requires specification of the precise boundaries of the tenement. Elsewhere in the Act where precise boundaries are required, that has been specified cf s-s62(2)(a) and (b) and s 190B(2). A ‘clear’ description need not be ‘complete’: cf clause 6(2)(c) of the Native Title (Indigenous Land Use Agreements) Regulations 1999.”

[67] Section 62(2) deals with claimant applications. Subparagraphs 62(2)(a) and (b) require the inclusion of the following details in such applications:

(a) information, whether by physical description or otherwise, that enables the boundaries of:
(i) the area covered by the application; and
(ii) any areas within those boundaries that are not covered by the application;
to be identified.
(b) a map showing the boundaries of the area mentioned in subparagph (a)(i).”

Section 190B deals with the application of the registration test. Subsection (2) provides:

“(2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.”

[68] There is some force in the contention of the government party. There is a clear policy evidenced in both sections 62 and 190B that a claimant application must include both precise descriptions of the external boundaries of a claimant application and must also include a map. The utilization of the words “reasonable certainty” recognizes that a degree of imprecision necessarily follows from the use of low quality maps or written descriptions which while clearly establishing the external boundaries of the claimed area, nonetheless do not so with scientific exactitude – see the Explanatory Memorandum to the Native Title Amendment Bill 1997 at para 29.13. The need for precision necessarily follows from the requirement in section 13 that a native title determination application can only be made in relation to an area for which there is not an approved determination of native title – s 13(1)(a).The drafters of the legislation have drawn a distinction between the requirement of providing “a clear description of the area” with the more precise and detailed requirements mandated for the filing of native title determination applications under section 61. While not of itself conclusive of the question of what constitutes a “clear description”, one conclusion that is open to be drawn is that the public notification requirements in Subdivision P are not as stringent as that required for the filing of a native title determination application.

[69] Of potentially more significance is the reference to the Native Title (Indigenous Land Use Agreements) Regulations 1999. The Regulations prescribe the documents that must be provided to the Native Title Registrar for the registration of the various types of indigenous land use agreements. In each case the Regulations require that an application must be accompanied by “a complete description of the agreement area” - see regs 6(1)(c), 7(1)(d) and 8(1)(d). The term “complete description” is defined in regulation 5 as follows:

“(a) a written description of that area that enables identification of the boundaries of:
(i)the area; and
(ii)any areas within those boundaries that are not included within the area; and

(b) a map of the area that shows geographic coordinates.”

[70] It is significant that the drafter of the regulations has chosen to use the term “complete description” rather than “clear description”. A “complete description” is defined so as to require both a written description and a map. It is the contention of the native title party (NTPFCCD at para 4) that “given the function of the notice is to inform potential native title claimants, most of whom would not be able to understand where an area is from a written description based on geographic coordinates, that a ‘clear description’ would require a map of the area showing the boundaries at the very least.” I am not satisfied with this line of reasoning. The notice requirements of the Act, consistent with the approach of Project Blue Sky, need to be interpreted so that there is internal legislative consistency and they “give effect to harmonious goals”. There would appear to be a logical approach that has been taken to notification requirements in the Act. Where there is a need for notices or applications to contain particular documents or provide specific information, the drafters have so specified. This concern for detail is highlighted by the wording of sections 62 and 190B. However, in the subordinate legislation the fact that the drafters have decided to differentiate between the requirement of a “clear description” and a “complete description” and specifically define the latter to require both a written description and a map is, to my mind, telling.

[71] I have formed the conclusion that a “clear description” does not require in all instances the inclusion of a map in a public notice. The inclusion of a map would, in many instances, assist and it is an approach adopted in most States and Territories. However, a map per se does not guarantee clarity of description, and there could well be cases where a map may in fact contain errors and lead to error. Accordingly, I do not agree with the contention of the native title party that the failure of the government party to include a map of the proposed tenement in its public notice has resulted in the notice failing to provide a “clear description” of the area of the proposed future act.

[72] The government party also sought to rely (GPSFC at para 16) on a recent determination of Deputy President Sumner – Minister for Planning and Infrastructure (WA)/Anderson/S and N Crees and Sons [2004] NNTTA 78. In that matter the section 29 notice contained an error in that the subject land and areas were said to be in the Shire of Grace whereas they were located within the Shire of Merredin. However, there are some distinguishing factors that limit the relevance of this matter. The government party in that case was seeking to compulsorily acquire interest in land which was described as “Whole Avon Location 20721”. On this point Deputy President Sumner said (at [9]):

“In considering whether the s 29 notice in this case was validly given I have given attention to the full description of the area of land concerned. It has been established that Avon Location 20721 is a unique location within the State of Western Australia which effectively removes any doubt as to the location of the relevant area of land. Further I have received no indication from the native title party that they were in any way misled as to the location of the proposed act.”

[73] That determination enunciates the proposition that a section 29(3) notice will be valid notwithstanding it contains an error if it contains other information which clearly describes the area of land and waters which may be affected by the proposed future act, and no reasonable person would have been materially misled by the error. In the matter before Deputy President Sumner the insertion of the wrong Shire was excusable because of the unique nature of the land the subject of the notice. The issue currently before the Tribunal is not whether the government party has misdescribed the subject land and waters, but whether the land was described with sufficient clarity.

[74] The government party (GPSFC at para 19) also draws the Tribunal’s attention to the provisions of the Petroleum Act 1967 (WA) whereby licences are granted on the basis of graticular sections or blocks, each block being 5 minutes of latitude by 5 minutes of longitude. The conclusion to be drawn it was submitted was that: “such area of land the subject of the licence is, it is submitted, an easily identified regular shape, namely a square.” It followed that the “boundary box clearly implied by the Notice encompasses all of the land the subject of the proposed tenements; any excess land included in the boundary box does not invalidate the Notice for it clearly does not prevent the identification of the affected land and does not fail to provide clarity in the description of the land taken for the tenement.”

[75] This contention is not sustainable. While the internal logic in the government party’s contention is patent, nonetheless the task required of the Tribunal is to assess the public notice on its own terms. There is nothing in the notice that refers back to graticular sections or blocks under the Petroleum Act 1967. Moreover, an ordinary member of the community would have very little if no idea what a graticular section or a block was, let alone the implications that flowed from it. When determining whether a public notice complies with the requirement to include a clear description of the relevant area, the Tribunal is required to look at the notice itself and not to insert into this process information that was not publicly advertised, let alone assume that members of the public have a sophisticated understanding of the terms and practices adopted by those connected with the mining and petroleum industry.

[76] It is clear that the description of the proposed tenement in the public notice did not contain an exact description of the proposed tenement. As the native title party contends (NTPSCR at para 47), there are an infinite number of possible configurations for the tenement that are possible within the description contained in the notice. A reasonable person viewing the public notice would not be in a position to ascertain what the exact external boundaries of the proposed tenement are.

[77] Nonetheless the government party contended (GPSC at para 25):

“… the NTP has incorrectly stated only 3 points are provided for even though the NTP has identified the said 3 points (ie. a first point at a specified latitude/longitude point, a second point approx 57 km south of the first; and a third point that is 57 km south and 35 km east of the first point), it has failed to state that by logical extension there is a fourth point, 35 km east of the first point, the last point in a series of 4 providing a rectangular boundary surrounding the extremes of the land the subject of the proposed licence.”

[78] In response the native title party contended (NTPSCR at para 51):

“However the NTP contends that the State’s assumption in para 25.2 of its contentions is no more logical than any variety of possible assumptions. The NTP contends that clearly only three points are identified within the Notice, and an assumption (which may lead to a variation between individuals) must be made to identify further points. Clearly then only two boundaries are identified in the Notice, and the NTP contends that this is fatal to the Notice according to Dixon.”

[79] A clear description is not a complete description. A clear description of an area is either a written description solely, or a written description supplemented by a map, which alerts the reader of a proposed future act and the area of that proposed act. I do not read the Notices Determination as requiring the government party to include in the public notice a description of the exact external boundaries of the proposed tenement area. The public notice must contain sufficient information to inform the reader of the general locality of the proposed future act. In this case the government party has provided the public with information as to the area of the proposed tenement in terms of square kilometres, the local government bodies within which the area is located and a locality description which combines in general parlance the approximate location of the area (20 kilometres east of Eneabba) and a boundary box description utilizing longitude and latitude measures.

[80] The cumulative operation of each of these identifiers is to arm a member of the public reading the notice with sufficient information to make sensible inquiries so that a complete description can be obtained. The subject public notice in fact said: “For further information about the act (including extracts of plans showing the boundaries of the application) contact …”

The native title party refers the Tribunal to the following findings of Deputy President Franklyn in Dixon (at 39):
“It is the notice that is advertised that must provide a clear description. The evidence satisfies me that it does not do so and, in fact, requires the readers of the advertisement to engage in substantial further inquiries, which may not be open to some, to enable identification of the boundaries and the area that will be affected by the act.”

Deputy President Franklyn made specific reference to the fact that exploration licences could have a multiplicity of configurations and the external boundaries of the proposed licences were not made clear in the public notices. However, there are some noticeable differences between the facts presented in Dixon and the current matter. Clearly in this matter the notice contains a description of the area in terms of square kilometres, furthermore there is no reference to the potentially misleading “centroid”. There is also no suggestion that a member of the public wishing to make further inquiries would be subjected to “substantial further inquiries” as was the case in Dixon. Further, it does not appear from the reasoning of Deputy President Franklyn that his attention was drawn to the Native Title (Indigenous Land Use Agreements) Regulations 1999. Deputy President Franklyn also did not refer to, or consciously adopt, the reasoning of the High Court in Project Blue Sky.

[82] I have formed the view, albeit with some reservations, that the public notice complies with clause 6(5)(a.). I find so for the following reasons:

(a) the Act, and the subordinate legislation made pursuant to it, mandate a hierarchy of notification requirements depending on the nature of the right or duty at issue;
(b) specifically, the obligation to provide a “clear description” is of a lesser standard or obligation than the duty to provide either a “complete description” as required by the Native Title (Indigenous Land Use Agreements) Regulations 1999 or other sections of the Act (ss 62 and 190B(2));
(c) unlike the requirement under the Native Title (Indigenous Land Use Agreements) Regulations 1999 to provide a map with an application (in the context of a “complete description”), compliance with the provision of “clear description” does not necessarily and inexorably require a government party to include a map in a public notification pursuant to section 29(3). If the Commonwealth Minister, who is empowered by section 252 to make the Native Title (Notices) Determination 1998, had wanted to mandate such a requirement then specific provision could have been made as was the case with the Native Title (Indigenous Land Use Agreements) Regulations 1998. Only if such a requirement was specifically mandated by the Commonwealth Minister would it have been clear that a “clear description” would in all cases require a map to be included in a public notice;

(d) the public notice in this case provided better details than the public notices considered by Deputy President Franklyn in Dixon. Of most importance, the public notice in this matter specifically provided the area of the proposed tenement in plain language (square kilometres as distinct from “BLKS”) and no reliance was place on the misleading “centroids” as occurred in the Northern Territory;
(e) a “clear description” of a proposed tenement area does not require the external boundaries of the area to be fully and completed described in a public notice;
(f) in each case when a public noticed is challenged on the basis that it fails to provide a “clear description” of a proposed tenement, the Tribunal must determine if a member of the public viewing the notice would be armed with sufficient information in order either to take any necessary steps allowed under the Act (e.g. objecting to the assertion of the expedited procedure or filing a native title determination application if one had not already been filed) or seek any further information from the government party to finally determine the issue. In the latter case, the seeking of further information is not a substitute for the provision of a clear description, but in order to obtain the “complete information” envisaged by the Native Title (Indigenous Land Use Agreements) Regulations 1999. Rather, when seeking that further information a putative native title holder must be placed in a position by the public notice to be able to make informed inquiries and the information must be able to be readily and easily obtained;
(g) it is neither helpful nor possible to state in advance what will constitute a “clear description” of a particular tenement. Examples of what obviously are clear or unclear descriptions can be provided, but there exists a broad spectrum of notices that can only be determined having regard to the particular circumstances that exist at a particular point of time in a particular jurisdiction and having regard to the general state of knowledge in a particular community of facts and terminology;
(h) having regard to my finding that the government party has complied with the requirement to provide a “clear description” of the proposed tenement, it is not necessary to determine if the breach of this obligation invariably results in the invalidity of the notice and consequently the absence of jurisdiction of the Tribunal to make a section 38 determination.

Print Size

[83] The next submission of the native title party is that public notice does not comply with clause 9 of the Notices Determination. Clause 9 provides:

“Size of type in notices
9 A notice placed in a publication must be published in a print size at least as large as that used for most of the editorial content of the publication.”

[84] The native title party contends (NTPSC at para 17) that a comparison between the published notice and the remainder of the 15 December 2004 edition of The West Australian newspaper “clearly reveals that the Notice has not been published in a print size at least as large as that used for most of the editorial content of the publication.” The native title party lodged with the Tribunal various extracts from the 15 December 2004 edition of the newspaper in support of this contention. The native title party went on to contend (NTPSC at para 18) that compliance with clause 9 was a mandatory precondition to the jurisdiction of the Tribunal, and that the alleged failure of the government party to comply resulted in the Tribunal lacking jurisdiction to undertake an inquiry under section 139(b).

[85] The government party responded, firstly, by pointing out (GPSC at para 30) that the native title party had not challenged the form of notice that appeared in the Koori Mail, and this failure should be assumed as being implicit acknowledgement that the notice published in that newspaper complied with clause 9. Further “the Tribunal must determine whether any alleged failure in regard to the size of print used in the Notice as published in the West Australian really can be said to be determinative of the matter at issue. The Government Party says that this should not be regarded as so given the Notice has been published in an appropriate specialist newspaper.”

[86] This contention fails to take into account the clear wording of clause 6(1) of the Notices Determination which requires publication of the notice in one or more newspapers that circulate generally throughout the area to which the notice relates and in a relevant special interest publication. The Koori Mail is a relevant special interest publication (see the definition of that term in clause 3). The obligation imposed on the government party by clause 6(1) is to properly publish a notice in both types of newspapers. As the native title party contends (NTPSCR at para 63), the obligations imposed by clause 6(1) are to be read in a conjunctive not a disjunctive manner. Put in a different way, even conceding that the government party complied with clause 6(1)(b) by inserting a conforming notice in a special interest publication, this does not absolve the government party from complying with the obligations imposed by clause 6(1)(a). So the issue to be determined is whether the notice published in The West Australian complies with clause 6(1)(a), and the validity of the Koori Mail notice is not relevant.

[87] The next contention of the government party originally was that the extracts from The West Australian were unhelpful because they contained (GPSC at para 31):

“news content only and while the print of the stories contained in the said copies may appear to be a larger print than that contained in the section of the West Australian where the Notice was placed, namely that part of the ‘Classified Section’ of the said newspaper concerning ‘Mining Notices’ (where one would expect to see notices relating to mining issues), it is not editorial content and the Tribunal should not rely on or characterise it as such.”

Subsequently (GPSFC at para 22) the government party resiled from that position. For any future inquiries it may be useful to briefly state the law as to what constitutes “editorial content” of a publication. This issue was dealt with inferentially by Olney J in Re Associated Gold Fields NL (1995) 125 FLR 1. His Honour drew a distinction between editorial and advertising material, the inference being that any material in a newspaper other than pure advertising constituted editorial content. Olney J said (14): “The advertisement placed in The Australian appeared on p 4. It is the only advertisement on a page which otherwise contains editorial material.” Again, further in his judgment he said (14): “The advertisement placed in the Parkes Champion Post appeared on p 4. The page contains both editorial and advertising material. The editorial content is set out in seven columns of equal width and the width of the advertisements are multiples of the editorial columns.” It follows from this that for the purposes of clause 9 editorial content of a publication means that space in a publication, excluding advertising and public notices, which consists of text, photographs, graphics and illustrations. Editorial content is not limited to either the editorial of a publication or feature articles, but includes all material which is included in an issue by the editor excluding material which is published on the payment of a fee by a third person or entity.

[88] The next submission of the government party (GPSC at para 32) was that the print size of the notice had not defeated the principal object of section 29, namely bringing the proposed future act to the attention of the native title party. This type of contention was also made by the government party in response to the suggestion that the public notice did not clearly describe the area of the future act. It is beside the point whether the native title party has not been disadvantaged by the print size in the notice. The only issue which has to be addressed is whether clause 9 has been complied with. It is irrelevant to that central issue whether the native title party or any other person has or has not suffered material disadvantage.

[89] The next issue is whether the contention of the native title party is actually correct. In short, was the notice in The West Australian published in a print size at least as large as that used for most of the editorial content of that newspaper in that issue? The government party made the following submissions (GPSFC at paras 22 – 24):

“the variety of size of print of common newspapers makes it difficult to give force to the requirements of the Notices Determination and that if the Notice is, as submitted in the case, within the general range of print size in the newspaper should be accepted as complying with the Notices Determination. Otherwise the Tribunal will be required to engage in complicated procedures to determine whether the size or print is as required by the Notices Determination.
23. Further, the print size used in this Notice was the size used for all other notices and advertisements in the West Australian newspaper. There is no suggestion that it was unreadable, or of such a size or shape or placement as to render it unlikely to be noticed amongst all the surrounding print (which is clearly the intention behind clause 9 of the Notices Determination).
24. Whether the print is the same size as that used for most of the editorial content of a newspaper is not a precise standard. What does “most” mean? What if a newspaper contains many different editorial print sizes? This is a strong indication that strict compliance is not required: see Project Blue Sky referred to below.”

[90] There is some force and common sense in this submission of the government party. The print size requirement in clause 9 is difficult to evaluate by a court or a tribunal. It requires, prima facie, a technical and mathematical approach which is difficult to execute and hard to understand from a public policy perspective. Nonetheless it is a mandated requirement and must be interpreted accordingly. It is not open to the Tribunal to ignore the clear requirements of clause 9 because it requires the Tribunal to engage in a potentially difficult and imprecise exercise in order to determine the print size. A somewhat similar issue arose in Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467. In that case a question arose, in the context of an expedited procedure inquiry, whether the Tribunal had jurisdiction because the act in question was either a past act or it did not affect any native title still existing. This challenge involved complicated issues of mixed fact and law. The Tribunal declined to deal with the challenge, but this approach was rejected by the Federal Court. Carr J said (at 478): “I do not think it is open to the tribunal, where its jurisdiction or authority is under challenge, to take the course of assuming it has jurisdiction and authority on the basis that having to decide the question would involve consideration of complex matters of fact and law.” Accordingly, it is not open to the Tribunal to assume it has jurisdiction and ignore the requirements of clause 9 simply on the basis that to determine this issue will require the utilisation of complicated and perhaps even imprecise procedures to reach an outcome.

[91] The fact that the notice in question was of a similar print size to all other notices and advertisements does not address the mandated requirements of clause 9. The issue is not, what is the common practice of advertisers in that publication, but whether the government party has complied with the law. Moreover, I should point out that the notices inserted on page 104 of the paper by the government party for proposed future acts governed by the Native Title Act 1993 were of a larger print size than the general mining notices that were not governed by the Native Title Act 1993. Insofar as it is sensible to draw any conclusions, one that can be drawn is that the government party has made a conscious effort to insert public notices that graphically draw the attention of the reading public to the proposed grant of tenements. Finally, it is also not to the point to highlight that the notice was not unreadable. Clearly the notice was readable and, in my opinion, appropriate. Again that conclusion is irrelevant to the issue of compliance with clause 9.

[92] The Tribunal has been supplied with extracts from the 15 December 2004 edition of The West Australian. It should be noted that the public notice in question was located at page 104 of the newspaper. The native title party lodged with the Tribunal photocopies of pages 1-10 of the newspaper. The first nine pages were a mixture of editorial comment and advertisements, while page 10 was wholly comprised of advertisements. The pages supplied give a representative sample of the print size used in that edition of The West Australian. It is obvious from even a very quick perusal of the pages supplied that the print size of the public notice in question is smaller than most of the editorial comment. The government party contended that determining what “most” meant for the purposes of clause 9 was a difficult task, pointing out that a newspaper may contain many different editorial print sizes. I accept that the task imposed by clause 9 is potentially difficult, and I further accept that newspapers often adopt different print sizes for different types of editorial comment. However, it has not been credibly suggested that in the case of the 15 December 2004 edition that the public notices in question were not of a print size smaller than most of the editorial comment of the newspaper.

[93] However, the fact that the government party has failed to comply with clause 9 does not mean that the notice is invalid, and thus that the Tribunal has no jurisdiction. The proper approach to determine if the public notice is invalid was stated by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 per Hope, Glass and Samuels JJA:

“The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklin Stores Pty Ltd case. The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont. The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth. It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty Ltd case. A statute, which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth.”

The High Court in Project Blue Sky specifically endorsed (at 390) this approach to statutory construction. I specifically reject the contention of the native title party (NTPSCR at para 67) that “cl 9 is not a requirement the non-observance of which should not lead to invalidity.” Such a rigid approach duplicates the type of error debunked by the High Court in Project Blue Sky, namely characterizing a provision in advance as mandatory and requiring strict compliance with its terms. I further reject the submission (NTPSCR at para 67) that a different approach would invariably draw the Tribunal into “divining degrees of divergence in the font size which Parliament intended should lead to invalidity.” First, it is not manifest that Parliament intended non-compliance to lead to invalidity and secondly, the task of assessing the degree of non-compliance is no more difficult or potentially subjective than the initial task of assessing if the notice is of smaller print size than used for “most” of the editorial content.

[94] The government party drew the Tribunal’s attention to a recent decision of the High Court – Adams v Lambert [2006] HCA 10 (2006) 225 ALR 396, which concerned the effect upon the validity of a bankruptcy notice of a misdescription of the statutory provision under which an amount of interest on a judgment debt was claimed. This case is of interest because of the approach of the High Court to the construction of the relevant provision, bearing in mind as was highlighted in Tasker v Fullwood that the statutory scheme of the Bankruptcy Act 1966 (Cth) is irrelevant to the interpretation of the Native Title Act 1993. The Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) said ([29] – [30]/ 404-405):

“[29] To describe an error or a deficiency in a bankruptcy notice as involving a failure to meet a requirement made essential by the Act is to state a conclusion reached after a consideration of the legislative purpose and an evaluation of the significance or importance of the error or deficiency in the circumstances of the case. That question is not answered by observing that there has been a failure to meet a requirement. In this respect, the majority in Lewis placed undue emphasis on the imperative terms of the Act and Regulations. If there were no failure to meet a requirement, there would be no defect or irregularity. Furthermore, as noted earlier, the fact that the requirement is expressed by the use of the term ‘must’ is not conclusive. How otherwise might a requirement as to form be expressed?
[30] The misdescription of the relevant section of the District Court Act was not capable of misleading the respondent as to what he had to do to comply with the notice. This is not a matter of dispute. The question is whether the misdescription involved a failure to meet a requirement made essential by the Act. On the true construction of the Act, is it essential that there be no misdescription of the relevant section? Is it the purpose of the legislation that any slip, such as giving a reference to the statutory provision governing pre-judgment interest when what is intended is a reference to the provision governing post-judgment interest, should invalidate the notice? Is this so no matter how clear it might be from other parts of the notice that the claim is for post-judgment interest?.”

[95] The central importance of the public notice provisions of the Act and subordinate legislation has been highlighted – see [54]-[56]. In that scheme it is understandable that the Notices Determination has a specific provision requiring that a notice be of a print size that ordinary members of the public would both be alerted to its existence and be able to read it.

[96] There would seem to be no doubt that a total failure to insert a public notice in a publication of the type specified would result in the invalidity of the notice. The ramifications of that invalidity are explained by Olney J in Holt v Manzie (2001) 114 FCR 282 at 296-297. The issue before the Tribunal is not whether the failure to give a notice is judicially reviewable or not (and Olney J held that it was not), but rather whether the failure to comply with the public notification requirements deprives the Tribunal of its jurisdiction to make a section 38 determination.

I have already pointed out that clause 9 is drafted in an imprecise manner. The task of a Court or Tribunal in determining whether the notifying agency has complied with the print requirements can be a difficult one. The facts presented in this matter fall within the difficult category. Some conclusions follow from the material lodged by the parties:
(a) prima facie the print size of the public notice was smaller than most of the editorial content of the relevant edition of The West Australian;
(b) the public notice print size was not materially smaller than the editorial content print size;
(c) the print size of the public notice could be read comfortably without undue effort or strain. In short from my reading of the public notice, I have formed the opinion that the print size was sufficiently prominent to be noticed by an ordinary member of the public and large enough so that all of the material could be perused without undue effort; and
(d) the public notice was at least as large as the other public notices on the relevant page, and in fact larger than many of the others published by the State of Western Australia.

[98] One of the factors that need to be considered according to Tasker v Fullwood is the extent of the failure to comply with the statutory requirement. In this matter a public notice has been placed in an appropriate newspaper. The notice contains a clear description of the proposed future act. The notice has been placed in the appropriate part of the newspaper, namely that part which contains public notices. The notice is of a print size which is comparable, if not larger, than the other public notices on that page and a member of the public could read it without undue difficulty. In short, even though the print size of the notice may be not as large as that used for most of the editorial content of that edition of The West Australian it nonetheless was a clear and readable public notice which would have alerted a member of the public who saw it.

[99] As the High Court said in Adams v Lambert ([31]/405): “Errors or deficiencies in compliance with requirements as to form may involve questions of degree as well as of kind.” By analogy the extent of the failure to comply with the requirements of clause 9 in this case is, at most, marginal. The aim of clause 9 – that members of the public are provided by a notifying agency with a public notification which is prominent, readable and clear – has been substantially achieved. The compliance deficiency in this matter is minor and indeed I would go as far as to say trivial. The greater public interest has not been harmed by the failure to comply and in my opinion applying Project Blue Sky and the other cases cited above, it is not appropriate to elevate form over substance. Consequently the technical failure to comply with the requirements of clause 9 does not invalidate the notice and the Tribunal is not deprived of its jurisdiction to proceed with an inquiry pursuant to section 139(b).

Compliance with section 29(4)

[100] The last submission of the native title party was that the public notice did not comply with the requirements of section 29(4)(b), namely that a notice given under subsections 29(2) and 29(3) must: “(b) contain a statement to the effect that , under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice.”

Subparagraph (a) also requires the government party to specify a day as the notification day for the act. In this case, the government party specified 15 December 2004 as the notification day.

[101] The Notice contained the following statement:
“Native Title Parties Under section 30 of the Native Title Act 1993, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to any of the land and/or waters that will be affected by the act. The three month period closes on 16 March 2005”.

The native title party submits (NTPSC at para 21) that the correct date for the conclusion of the 3 month period was 15 March 2006 and not 16 March 2006 as appeared in the Notice. As a consequence the native title party contended (NTPSC at para 24): “the inclusion of an incorrect date in the second sentence amends the statement in the first sentence such that, taken together, the Notice no longer contains a statement the effect of which is to notify persons that they have until 3 months after the notification day to take the required steps.” The consequence of this was said to be (NTPSC at para 25): “the mandatory requirements of s 29 are not met as the Notice did not contain the statement required by s 29(4)(b). The Native Title Party contends that as this requirement has not been complied with the Tribunal does not have jurisdiction to undertake an inquiry under s 139(b) of the Act.”

[102] The native title party refers to the determination by Deputy President Sumner in Maitland Parker/Western Australia/Consolidated Iron Pty Ltd [2006] NNTTA 73. In that matter the government party also inserted a closing date in the public notice which was asserted to be incorrect. The notification date was 16 November 2005 and the native title party in question lodged an expedited procedure objection on 17 March 2006. Deputy President Sumner said:

“[8] According to the Tribunal’s calculation of the closing date, the expedited procedure objection application was received after the statutory time period for lodgment had expired. The Tribunal is of the opinion that by the operation of the Acts Interpretation Act 1901 (Cth) (s 22 – meaning of calendar month, s 36 – reckoning of time to be exclusive of the initial day, s 36(2) – Saturdays, Sundays and public holidays to be excluded) the date by which an objection should have been lodged was 16 March 2006. The notice was given on 16 November 2006, which date is to be ignored meaning that the objection should have lodged before midnight on 16 March 2006 which is four months after the notification day. No weekend or public holidays were involved.”

[103] The government party apparently (GPSC at para 34) accepted that the date inserted in the notice was incorrect but submitted that ignorance of the law was no excuse and that members of the public should identify errors in the notice. Accordingly “members of the public should be taken to be aware of the correct date of the day ‘3 months after the notification date’, ie 15 March 2005 according to the NTP.”

[104] For the purposes of resolving this point, I accept that the closing date in the notice was incorrect. While I find that the government party’s contentions outlined in [103] are unconvincing it is not necessary to deal with this submission on this basis. The validity of a public notice must be evaluated according to the relevant legislation or subordinate legislation that mandates its creation and prescribes its content. In this context section 29(3) requires that there be public notification in the determined way (s 252) of the proposed future act. Subsection 29(4) then requires that the public notification given, inter alia, pursuant to subsection (3) must:

“(a) specify a day as the notification day for the act; and
(b) must contain a statement to the effect that, under section 30, persons have until 3 months after
the notification day to take certain steps to become native title parties in relation to the notice; and
(c)be accompanied by any prescribed documents and include any prescribed information.”

[105] It will be noted that subsection 29(4) does not require a government party to include in a public notice a closing date, only the specification of a notification day. Further, subclause 6(5) of the Notices Determination, which specifies the content of a notice under subsection 29(3), does not prescribe the giving of a closing date. It should also be noted that neither the Act nor the Notices Determination limits the type of information that can be included in a public notice. Rather, it would appear that the Notices Determination requires certain information be notified, and it is up to the government party to supplement that information if it chooses. In short, the provision of a closing date is additional information which is provided on a purely voluntary basis by the government party and falls outside the requirements of either the Act or the Notices Determination.

[106] The next logical question is whether the provision of additional information, albeit voluntarily, by a government party which incorrectly states the closing date invalidates the notice. I have not been referred by the parties to any authority that a public notice is invalidated by the insertion of non-mandated incorrect information, in particular when there is no evidence of any member of the public relying upon that information to their detriment. I do not wish to speculate on what, if any, equitable remedies may exist to prevent a government party issuing a permit, licence or lease if a party has been materially misled by incorrect information voluntarily inserted – see Fejo v Northern Territory (1998) 195 CLR 96 at 122-123/[30], 125/[39] and 125-126/[41] per Gleeson CJ Gaudron, McHugh, Gummow, Hayne and Callinan JJ. However, that is not a question for an administrative tribunal, let alone a body which has not been presented with any evidence that any material injustice occurred because of the minor error that appeared in the public notice. Unlike the Maitland Parker matter, there is no evidence that any potential native title claimant may have been misled by the date in the notice. In short, the argument by the native title party is not only irrelevant to the question of jurisdiction for this Tribunal but also is lacking any evidentiary base that would allow a court of equity to possibly intervene.

Decision

[107] I find the section 29(3) notice issued by the government party in the 15 December 2004 edition of The West Australian newspaper:

(a) provided a clear description of the area that may be affected by the grant of the proposed tenement;
(b) was not published in a print size at least as large as that used for most of the editorial content of that edition, but in the context of the legislative purpose underpinning public notification, the degree of non-compliance was so minor that non-compliance did not invalidate the notice; and
(c) was not invalidated by the voluntary inclusion of an incorrect closing date.

I therefore find that the Tribunal has the necessary jurisdiction to consider the future act determination application made by the grantee party.

John Sosso

Member