Robert Mumu & Others on behalf of Karinga Lakes v Territory Potash Pty Ltd - [2020] NNTTA 66

NATIONAL NATIVE TITLE TRIBUNAL

Robert Mumu & Others on behalf of Karinga Lakes v Territory Potash Pty Ltd [2020] NNTTA 66 (30 October 2020)

Application No:

DO2020/0001-3

IN THE MATTER of 3 objections pursuant to section 32(4) of the Native Title Act 1993 (Cth)

Parties:

Robert Mumu & Others as Applicants in the Karinga Lakes Native Title Claim

(native title party)

- and -

Territory Potash Pty Ltd

(grantee party)

- and -

Northern Territory Government

(Government party)

DECISION CONCERNING VALIDITY OF A SECTION 29 NOTICE

Tribunal:	The Hon J.A. Dowsett, AM, QC
Place:	Brisbane
Date:	30 October 2020

Catchwords:	Native title – future act - expedited procedure objection application – challenge to Tribunal’s jurisdiction to deal with objection – validity of a section 29 notice
Legislation:	Mineral Titles Act 2010 (NT) ss 11, 26, 83, 107. Native Title Act 1993 (Cth) ss 24MD, 25, 28, 29, 31, 32, 75, 139, 148, 149, 237, 252. Native Title Amendment Act 1998 (Cth). Native Title Notices Determination 2011 (No 1) (Cth) ss 6, 4 Native Title Notices Determination 1998 (Cth)
Cases:	Australian Ilmenite Resources Pty Ltd v Silver (2018) 339 FLR 96; [2018] NTSC 72 Dann v State of Western Australia (2006) 208 FLR 357; [2006] NNTTA 126 Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1506 Dixon v Northern Territory (2001) 166 FLR 29; [2001] NNTTA 29 Dja Dja Wurrung People v Highlake ResourcesPty Ltd [2008] NNTTA 67 Forrest and Forrest Pty Ltd v Wilson (2017) 262 CLR 510; [2017] HCA 30 Little v FMG Resources Pty Ltd [2011] NNTTA 173 Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467; [1997] FCA 1404 Muslimin v The Queen (2010) 240 CLR 470; [2010] HCA 7 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Adams and the Tax Agents’ Board (1976) 12 ALR 239; [1976] AATA 1 Strickland v Plutonic (Baxter) Pty Ltd [1998] NNTTA 12 Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33 Walley v Western Australia (1996) 67 FCR 366; [1996] FCA 1564 Western Australia v Dimer (2000) 163 FLR 426; [2000] NNTTA 290 Williams v Minister for Lands (NSW) (2003) 128 FCR 517; [2003] FCA 360 Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64
Representative of the native title party:	Dante Mavec, Central Land Council

Representative of the grantee party:

Bradly Torgan, Ward Keller

Representative of the Government party:

Stewart Bryson, Solicitor for the Northern Territory

INTRODUCTION

Robert Mumu and others comprise the applicant (the “Native Title Party”) for a determination by the Federal Court as to the existence of native title pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”). The determination application was lodged on 13 February 2020 and has been accepted for registration. The Government of the Northern Territory (the “Territory”) proposes to grant (the “proposed grants”) to Territory Potash Pty Ltd (the “Proposed Grantee”) three exploration licences (the “proposed tenements”) pursuant to the Mineral Titles Act 2010 (NT) (the “Mineral Titles Act”). The proposed tenements are described respectively as EL32249, EL32250 and EL32251. They are future acts to which, pursuant to s 25 of the Native Title Act, Subdiv P of Pt 2, Div 4 of that Act (“Subdiv P”) applies.
Section 29(1) (which is to be found in Subdiv P) required that the Territory give notice of the proposed grants, “in accordance with this section”. In this case, s 29(2) required notice to any representative Aboriginal/Torres Strait Islander body and the Registrar of the Tribunal. Section 29(3) required public notice. Notice was given to the relevant representative body and to the Registrar. A public notice was also given. All notices were in the same form (the “notice”).
The Native Title Party’s case is not entirely clear. It seems to assert that the notice did not comply with ss 29(1), 29(2) or 29(3). However it focusses primarily upon the alleged non-compliance with s 29(3). This focus may have been prompted by the fact that there are specific requirements for a s 29(3) notice which do not apply to other s 29 notices. The notice identified the notification day for the purposes of s 29(4) as being 4 December 2019. The Native Title Party’s determination application was presumably lodged in response to the s 29(3) notice. The notice related to all three proposed grants.
Included in the notice was a statement pursuant to s 29(7) of the Native Title Act (the “expedited procedure statement”) to the effect that the Territory considers that the proposed grants attract the expedited procedure, a term which is described in s 237 of the Native Title Act. On 1 April 2020 the Native Title Party lodged an objection (the “objection”) pursuant to s 32(3), asserting that the proposed grants do not attract the expedited procedure. Pursuant to s 32(2) of the Native Title Act, in the absence of such an objection, the Territory could lawfully have made the proposed grants without any requirement that the parties negotiate in good faith as otherwise required by s 31 of the Native Title Act.
Section 237 provides:
A future act is an act attracting the expedited procedure if:
(a)      the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)      the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
Pursuant to s 32(4), the Tribunal is obliged to consider the objection. Directions have been made for that purpose. However, on 31 July 2020 the Native Title Party advised that it proposed to raise a “jurisdictional” issue. In effect, it asserts that the notice did not comply with the requirements of s 29 of the Native Title Act, and that the Tribunal therefore cannot exercise its jurisdiction pursuant to s 32(4). Sections 29(1), (2) and (3) provide:
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 fro 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.
As I have said, the Native Title Party focusses primarily on the requirements of s 29(3). Pursuant to s 252 of the Native Title Act, the notice required by s 29(3) was to be given in accordance with a determination by the relevant Minister. The relevant determination is the Native Title (Notices) Determination 2011 (No 1) (Cth) (the “2011 Determination”). The 2011 Determination replaced a similar determination issued in 1998 (the “1998 Determination”). Section 6(2) of the 2011 Determination provides that notices pursuant to s 29(3) of the Native Title Act are to be given by newspaper advertisement. Section 6(4) of the 2011 Determination provides:
(4) Notice under subsection 29(3) of the Act must include:
(a)a clear description of the area to which the act mentioned in the notice relates; 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.
In s4 of the 2011 Determination, the term “clear description”:
for an area, means a description of the area that contains enough information, whether by map drawn to scale or description by other means, to work out:
(a)the general location of the area; and
(b)the approximate boundaries of the area.
The Native Title Party asserts that the notice did not sufficiently identify the general nature of the proposed grants, or provide a clear description of the areas to which the proposed grants relate. At para 6.1 of its contentions it submits that:
The provision of notice pursuant to s 29 … is a condition precedent to the [Tribunal’s] jurisdiction to hear and determine the objections. The objections must therefore be dismissed on the grounds above. If the procedures in [Subdiv P] … are not followed, the relevant act is invalid to the extent that it affects native title: s 25(4) … . If the [Territory] proceeds to grant the [proposed tenements], contrary to the provisions of [Subdiv P], the [proposed tenements] will be invalid to the extent they affect native title.
[citations omitted]
The reference to s 25(4) is probably misconceived. I shall return to that matter. The alleged inadequacies in the notice are said to arise out of s 83 of the Mineral Titles Act which provides:
Right to construct road for access to title area
(1) The holder of a mineral title has a right of access to the title area by the shortest practicable route from any of the following:
(a)a council road or Territory road;
(b)a railway line;
(c)an airstrip;
(d)the sea or a waterway.
(2) For subsection (1), the title holder has the right to:
(a)enter land to construct or maintain a road, and do other work, to enable the title holder to have access to the title area; and
(b)use the assistance of any persons, and the vehicles and equipment necessary, to do the work mentioned in paragraph (a).
The Native Title Party submits that the notice ought to have disclosed the fact that the proposed grants would engage s 83, and to have identified the land and waters which would be affected by such engagement.

THE “JURISDICTIONAL” ISSUE

In an email dated 11 August 2020, the Native Title Party conveniently summarized the factual basis of the alleged deficiency in the notice as follows:
Outline of jurisdictional issue
Sections 29(3) and 252 of the [Native Title Act] require the public to be notified ‘in the determined way’ of a future act to which [Subdiv P] applies. The [2011 Determination] requires that the public notification include a clear description of the area to which the act mentioned in the notice relates, as well as a description of the nature of the act.
The proposed future act in each of the three objections is the grant of a mineral exploration licence pursuant to Part 3 Div 1 of the Mineral Titles Act … Grant of a mineral exploration licence under the [Mineral Titles Act] gives the title holder a number of rights exercisable within the tenement areas. Critically, the grant also gives the title holder a right to access and construct a road or roads to the tenement area from, inter alia, certain roads, railways and air strips … .
The public notifications of the proposed future acts make no reference to the nature of the right to be granted under section 83 of the [Mineral Titles Act] and do not describe the area to which these rights relate. The public notifications of the proposed future acts make no reference to the act involving the grant of rights relating to an area larger than, or outside of, the proposed tenement area. The notifications therefore do not provide a clear description of the area to which the act relates or an accurate description of the nature of the act, as required by the [Native Title Act] and the [2011 Determination].
The Native Title Party expanded upon this outline in its statement of contentions dated 19 August 2020, which contentions I discuss below.
Curiously, the relief sought by the Native Title Party (at para 6.1 of its contentions) is that the “objection” be “dismissed”. The only matter of which the Tribunal is seised is the “objection application” as identified in ss 32, 75 and 139 of the Native Title Act. Those sections do not provide for any order upholding or dismissing the objection application. Section 32(4) contemplates only that the Tribunal will determine either that the expedited procedure statement applies (s 32(4)), or that it does not (s 32(5)). However ss 148 and 149 provide for dismissal in specified circumstances. If the objection application is dismissed, the expedited procedure statement remains, effectively as if there had been no objection. It seems unlikely that the Native Title Party intended that outcome. I discuss those provisions below.
It may be that the Native Title Party seeks to dispose of the proposed grants in their entirety by having the Tribunal express the view that it does not have jurisdiction to entertain the objection proceeding. However, for reasons which appear below, such an outcome will not dispose of the proposed grants. If the Native Title Party considers that invalidity of the s 29 notice will, in some other way, dispose of them, it ought to have applied to the Federal Court for appropriate relief.

THE TRIBUNAL’S JURISDICTION

As I have said, the Tribunal’s jurisdiction concerning objections is found in ss 32, 75 and 139 of the Native Title Act. Section 32 provides:

Expedited procedure
(1) This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).
Act may be done if no objection
(2)      If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the government party may do the act.
Kinds of objection
(3)      A native title party may, within the period of 4 months after the notification day (see subsection 249(4)), lodge an objection with the arbitral body against the inclusion of the statement.
Objections against inclusion of statement
(4)      If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
Act not attracting expedited procedure
(5)      If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.
Withdrawal of objection
(6)      At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If such objections are withdrawn, the Government party may do the act.
Withdrawal of statement about expedited procedure
(7)      At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.

This Tribunal is the relevant arbitral body. Section 75 effectively permits an “application” for a determination pursuant to s 32(4). Section 139 provides that the Tribunal must hold an inquiry into an application “covered by s 75”. There is no apparent reason for this multiplicity of provisions. The only other relevant “jurisdictional” provisions are ss 148 and 149 which provide:
148 Power of Tribunal where no jurisdiction, failure to proceed etc.
The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:
(a)the Tribunal is satisfied that it is not entitled to deal with the application; or
(b)the application fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.
149 Power of Tribunal where applicant requests dismissal
The Tribunal may dismiss an application if:
(a)the applicant requests, in writing, that the application be dismissed; and
(b)the Tribunal is satisfied that it is appropriate to dismiss the application.
To the extent that the Native Title Party seeks dismissal of the objection, it may rely upon s 148. It does not say so in its contentions, but in correspondence dated 11 August 2020, it suggests as much. In that correspondence, and in its contentions at para 6.1, it argues that the objection should be “dismissed”.
The Tribunal has only the powers conferred upon it by statute. There is no express power to determine whether a s 29 notice complies with the requirements of the Native Title Act. Brennan J (as his Honour then was) said, in Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 241, in exercising the jurisdiction of the Administrative Appeals Tribunal:
An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.
It follows that, where appropriate, the Tribunal may form an opinion as to the extent of its jurisdiction. However it cannot make a binding decision as to such matters. Should the Tribunal conclude that it has no power to perform its statutory functions under s 32, the result can only be that it refrains from doing so, save for the possible operation of ss 148 and 149.
The Native Title Party’s jurisdictional point is a little difficult to identify. It seems to involve the proposition that s 83 rights will be conveyed or conferred by the proposed grants, and that the, “areas of the proposed tenements do not constitute the area to which all rights to be conveyed by the proposed grant are conferred”. It is said to follow that as the s 83 rights would be “conveyed” or “granted” by the proposed grants, the notice should have included a clear description of the areas of the proposed tenements and the, “s 83 component of each act”, that is the unspecified area which may in some circumstances, be affected by s 83. It is said that the s 29 notice failed, “to accurately or completely identify the area that will be affected by each act, and thereby to provide a clear description of the area to which each of the titles in fact relate”.

It is asserted that a s 29 notice which does not refer to the areas which may be affected by s 83, will not notify native title holders, claimants or potential claimants over such areas, so as to enable them to object to the expedited procedure statement. The Native Title Party says virtually nothing about how those additional areas might be identified prior to the giving of any s 29 notice. The matter is discussed in broad terms in its contentions in reply at paras 3 and 4.
Finally, at para 6.1 of its contentions, the Native Title Party submits that the provision of notice pursuant to s 29 is a condition precedent to the Tribunal’s jurisdiction to hear and determine a s 32 objection, and that, in this case, any grant will be contrary to Subdiv P and therefore invalid. In support of this proposition, the Native Title Party cites Dja Dja Wurrung People v Highlake Resources [2008] NNTTA 67 at [13] and Little v FMG Resources Pty Ltd [2011] NNTTA 173 at [11]. Neither decision offers any clear justification for the proposition, although there is reference in Dja Dja Wurrung to earlier decisions, including two decisions of the Federal Court. However there is reason to doubt whether those decisions are still good law. I discuss them below. In any event, there is no real explanation as to why possible invalidity of the s 29 notice should relieve the Tribunal of its duty to consider an objection pursuant to s 32.
The validity or otherwise of the proposed grants depends upon s 24MD of the Native Title Act and Subdiv P. Section 24MD(1) provides that if Subdiv M applies to a future act, it is valid, subject to Subdiv P. Subdiv P provides its own validity provisions. The Native Title Party seems to rely on s 25(4) which provides:
If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.
However s 25 is described in the Native Title Act as providing an “overview” of Subdiv P, suggesting that s 25(4) does not, itself, affect validity. Rather, invalidity is dealt with in s 28. That section provides that an act to which Subdiv P applies will be invalid to the extent that it affects native title unless, “before [the act] is done”, the requirements of one of the following paragraphs are satisfied. As originally enacted, s 28 did not contain the words “before [the act] is done”. There have been other significant amendments to s 28, including the limitation of the invalidity of any act to the extent to which it affects native title. The specific provisions relating to invalidity of the relevant act highlight the fact that there is no express provision to that effect concerning any deficiency in the s 29 notice or concerning the Tribunal’s s 32 duty. The validity or invalidity dealt with in s 28 is that of the relevant act, not any exercise by the Tribunal of its jurisdiction pursuant to s 32(4). The inadequacy of a s 29 notice may lead to an inability to satisfy one or more of the requirements in s 28, but that proposition says nothing about the s 32(4) procedure.
The Native Title Party submits, at para 4.1 and elsewhere in its contentions, that each of ss 29(1), 29(2), 29(3) and the 2011 Determination, “mandate notification of the area that will be affected by the act”. This contention is incorrect. At no point does s 29 or the 2011 Determination describe the area of which notification must be given as, “the area which will be affected by the act”. I shall return to that matter.
The decisions in Dja Dja Wurrung and Little are based on a number of earlier decisions. The first is that of Carr J in Walley v Western Australia (1996) 67 FCR 366. His Honour held that failure to negotiate in good faith, as required by s 31 of the Native Title Act (in the form in which it was originally enacted) was a condition precedent to any application for a determination pursuant to s 35 (also in its original form). The decision was not directly concerned with the Tribunal’s jurisdiction concerning objections. However the decision was based on the proposition that s 31(1) was a “mandatory” condition precedent to an application pursuant to s 35. At p 381, Carr J clearly treated s 29 as having similar status.
In Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467, Carr J considered the validity of an objection decision made by the Tribunal. The basis for the challenge was the assertion that the advertised “act” was not a future act. As in Walley, the legislation was in the form in which it was originally enacted. His Honour held that the relevant act was a future act, and so the allegation of want of jurisdiction failed. However, at 473-474 Carr J observed that:
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. Similarly, it is the function of this court, on review, to decide that matter for itself. I now turn to the particular question whether the characterisation of the proposed extension as a “future act” is an essential condition precedent to the tribunal exercising jurisdiction under s 32(4) of the Act?
At page 478 his Honour continued:
In my view, those consequences point to the conclusion that the tribunal’s jurisdiction or authority does not flow simply from the chain of circumstances and statutory provisions set out in the contentions advanced by the second respondent, which I have summarised above. The whole structure of Subdiv B rests on the foundation of the act in question being a “permissible future act”. When the existence of that foundation is challenged it is, in my opinion, the duty of the tribunal and this court, in turn, to satisfy itself whether the action in question is a “permissible future act”. The first stage in that assessment is to decide the question whether the act is a “future act”?
Other cases to similar effect include Strickland v Plutonic (Baxter) Pty Ltd [1998] NNTTA 12, Dixon v Northern Territory (2001) 166 FLR 29 and Western Australia v Dimer (2000) 163 FLR 426.
In 1998, the Native Title Act was extensively amended by the Native Title Amendment Act 1998 (Cth) (the “1998 Act”). In the same year, the High Court delivered its judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. That decision identified a quite different approach to problems of the kind dealt with in the cases cited above. The Court effectively held that an act done in breach of a condition regulating the exercise of a statutory power was not necessarily invalid. See Project Blue Sky at [91]-[93].
One might have expected that the decision would have led to a reconsideration of these earlier decisions. However the first such consideration appears to have been that of Member Sosso in Dann v State of Western Australia (2006) 208 FLR 357. The Member appears to have identified the possible relevance of the decision in Project Blue Sky to the purported status of a valid s 29 notice as a condition precedent to exercise of the Tribunal’s jurisdiction. Concerning that decision, Member Sosso noted at [23] 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]”. In my view, the earlier decisions, (including those of Carr J) were all based on that approach.
In Forrest and Forrest Pty Ltd v Wilson (2017) 262 CLR 510 at [64], the majority of the High Court (Kiefel CJ, Bell, Gageler and Keane JJ) held that nothing in the Project Blue Sky reasoning should be taken as derogating from the long-established line of authority to the effect that:
… where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provisions to the contrary, be understood as mandatory compliance with the requirements of the regime as essential to the making of a valid grant … The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.”
The Full Court of the Federal Court held, in Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64 at [86]-[96] that the same approach might be applied by analogy to the future act regime, including the objection procedure. Further, the Full Court held that caution should be exercised in applying the decision in Project Blue Sky in relation to any individual “non-compliant act in the implementation of the [Subdiv P] scheme”. I note the Full Court’s warning. However I have some difficulty in concluding that a deficiency in a s 29 notice necessarily deprives the Tribunal of its jurisdiction under s 32(4), whatever effect it may have on the validity of any proposed grant. In that regard, I note the possibility that, as happened in the present case, a native title party may lodge an objection, notwithstanding any possible insufficiency in the s 29 notice, whether or not such deficiency has been identified. It is quite conceivable that in such circumstances, the negotiation parties might reach agreement, leading the Tribunal to make a determination pursuant to s 32(4), or s 32(5). In any such case, one or other of the s 28(1) requirements may be met, leading to validity, at least pursuant to that section. It may be difficult to argue that such consequences can be simply set aside, even where there is no reason to believe that any person has suffered loss. One might expect that, at least between the parties who have negotiated, the outcome would be binding upon them, even if not on others.
To some extent the Native Title Party seems to confuse the possible invalidity of a future act with the power and duty of the Tribunal pursuant to s 32(4). The validity of a relevant future act is governed by s 24MD(1) and by Subdiv P, particularly s 28. The Tribunal’s jurisdiction under s 32 seems to depend upon ss 32(1) and 32(4). That jurisdiction arises if the State includes an expedited procedure statement in the notice.
Notices pursuant to s 29(3) will primarily benefit native title claim groups, the claims of which have not been registered or, in some cases, even filed. The rather complex provisions of s 30 are designed to facilitate the involvement of such groups in the negotiation process. Failure to give notice in accordance with s 29(3) may lead to such a group losing its opportunity to participate in negotiations in good faith. This consequence may not be as serious as it seems, at least if the deficiency in the notice also leads to the act being invalid, so that there will be no grant affecting those native title parties.
It is, however, difficult to discern the way in which s 28 would operate in such cases. It is not necessary that I address these difficulties as I have concluded that there is no deficiency in the s 29(3) notice, to which question I now turn.

THE NOTICE IS VALID

Section 29(3) provides that:
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.
In the notice, the proposed grants are described as follows:
Nature of the Act
The grant of the ELs under the Mineral Titles Act 2010 authorises the holder to explore for minerals and such operations and works as are necessary for that purpose including (but not limited to) geological survey, rock sampling, drilling, removal and testing of ore material or other substances for a term not exceeding 6 years and to seek renewal(s). The term sought is 6 years commencing from the date of grant.
The relevant areas are described by “block” numbers, apparently a system used by the Territory. I infer that it is possible for an interested party to locate the proposed tenements by reference to those block numbers. There has been no suggestion to the contrary. The notice also states that:
The areas of land covered by the proposed grant are depicted on the maps on the attached copy of the newspaper advertisement.
There are eight such maps, only three of which are relevant. Each of the three proposed tenements lies within a separate “locality”, EL32249 in the “Curtin” locality, EL32250 in the “Angas” locality and EL32251 in the “Ebenezer” locality. These names may relate to pastoral or similar holdings. I do not know whether the word “locality” has any particular statutory meaning.
The Native Title Party does not challenge the validity of the s 29 notice on its face. Rather, it asserts that by virtue of s 83 of the Mineral Titles Act the Proposed Grantee will, should the proposed grants be made, acquire certain rights over areas, other than the land and waters identified as comprising the proposed tenements.
Section 26 of the Mineral Titles Act sets out the rights granted by an exploration licence as follows:
(1) A mineral exploration licence is a mineral title that gives the title holder:
(a)the right to occupy the title area specified in the EL; and
(b)the exclusive right to conduct exploration for minerals in the title area and other activities specified in section 31;
(c)the exclusive right to apply for a mineral lease for all or part of the title area.
(2) The rights of the title holder may be exercised only:
(a)during the period the EL is in force; and
(b)in accordance with this Act and the conditions of the EL.
I have set out the provision of s 83 at [10] above.
Section 11(1) defines the term “mineral title” as including a mineral exploration licence. Section 107 of the same Act provides that a person who has an interest in land is entitled to compensation from the holder of a mineral title for:
·damage to the land, and any improvements on the land, caused by activities conducted under the title; and
·any loss suffered as a result of that damage (for example, loss suffered as a result of being deprived of the use of the land).
The Native Title Party contends that:
… at least one right conveyed under [a mineral exploration licence] is granted in relation to land outside of the ‘title area’ … Thus, the “title area” does not constitute the area to which all rights conveyed by [a mineral exploration licence] are confined.
[emphasis in original]
This contention assumes, rather than establishes, that the rights identified in s 83 are “conveyed” under a mineral exploration licence and therefore, “granted in relation to land outside of the [proposed tenements]”. It is not clear to me that the statutory rights created by s 83 are either “conveyed” or “granted” to the Proposed Grantee. In my view, s 83 is simply part of the Territory’s property law. Save for any statutory exception, the section seems to be of general application. In effect, save for any such exception, the section imposes upon each land holder the possibility that his or her land might be, at the time of enactment, or might thereafter become subject to the rights conferred upon another person by s 83. Upon the grant of a mineral title, the grantee may acquire personal rights pursuant to that section, but such rights do not, at that stage attach to any specific area. That attachment will only occur when the holder of such rights chooses to assert them over an identified area. Even then, questions may arise as to whether such assertion is consistent with the requirements of s 83. The Proposed Grantee submits that before the s 83 rights can be asserted, there is a requirement for negotiation, presumably with the landholder. I have not been referred to any statutory requirement to that effect. Such assertion seems to be inconsistent with observations concerning s 83 made by Hiley J in Australian Ilmenite Resources Pty Ltd v Silver (2018) 339 FLR 96 at [76].
At para 4.1 of its contentions, the Native Title Party submits that ss 29(1) and 29(3), “mandate notification of the [proposed grant]”, and that ss 29(1), 29(2) 29(3) and the 2011 Determination mandate, “notification of the area that will be affected by the [proposed grant]”. It further submits that s 29, “requires, a description of the land the subject of the proposed grant in full; it does not permit notification of only some aspects of, or areas affected by [the proposed grant]”. In paras 4.1-4.4 of its contentions, the Native Title Party refers to the area to be notified, describing it in a number of different ways, including:
·the area that will be affected by the act;
·the area to which the act mentioned in the notice relates;
·the land, the subject of the act;
·the land over which rights are granted by the act; and
·the area to which each of the Titles in fact relate (sic).
No provision of the Native Title Act or the 2011 Determination expressly requires notification of the area which will be “affected” by the proposed grant. Section 29(1) requires notification of the “act”, namely the proposed grant. However it may be inferred that the description of that act would generally involve identification of the land and waters in question. In section 29(2), the expression, “land or waters that will be affected by the act”, is used to describe those groups to which notice must be given. Section 29(2) says nothing about the content of the notice.
Section 29(3) similarly uses the term, “all of the land or waters that will be affected by the act”, to identify a registered native title body corporate, the existence of which will avoid the need for notification under s 29(3). Section 29(3) identifies the form of notice, referring to s 252 and, implicitly, to the 2011 Determination. This provision is in contrast to ss 29(1) and 29(2) both of which only require “notice”, without any description of the content of the notice, save to the extent that s 29(1) requires notice of the “act”. It is, perhaps, curious that there should be no more specific prescription concerning the content of the s 29(2) notice, having regard to the requirements of s 29(3). Perhaps it was thought that the various s 29(2) notice addressees would be sufficiently familiar with the relevant land and waters to make it unnecessary that there be a requirement such as that prescribed by the 2011 Determination.
The 1998 Determination required that the notice include, “a clear description of the area that may be affected by the act”. In Dixon, Member Franklyn held that the word “may” should be read as “will” in order to provide consistency with the phrase, “will be affected”, where it appears in s 29(2). In the 1998 Determination, the necessary relationship may well have been one of effect. If so, it seems likely that the expression, “may be affected by the act”, was deliberately omitted from the 2011 Determination. Instead, the area to be described is, “the area to which the act mentioned in the notice relates”.
The Macquarie Dictionary Online defines the word “relate” as, “to have some relation to,” or “to have reference to”. The words “in relation to” were considered by French CJ and Hayne J in Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510 at [25]. Their Honours said:
It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that “the subject matter of the inquiry, the legislative history, and the facts of the case” are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights.
[citations omitted]

The phrase was also considered by the High Court in Muslimin v The Queen (2010) 240 CLR 470. In that case, a man was charged with having in his possession, in a particular area (the Australian Fishing Zone), a boat equipped for fishing. Another section purported to extend provisions of legislation, “made in relation to fishing”, to areas outside of the Australian Fishing Zone. The question was whether such extended operation applied to the charge of possessing the boat equipped for fishing.
At paras [15]-[16] the Court said:
15 It is trite to say that s 12(2) must be construed as a whole with proper regard to the context provided by the entire Act. It is no doubt important to observe that s 12(2) identifies the provisions whose operation is extended by describing those provisions as one “made in relation to fishing”. The words “in relation to” are to be read with their ordinary meaning. But the observation that s 12(2) identifies the subject of the extension worked by the sub-section as provisions “made in relation to fishing” must not be permitted to obscure two further features of the sub-section. First, its central concern is “fishing” as defined in the FMA – one or more forms of identified activity. Secondly, the extension worked is an extension of provisions made about the activity of fishing in one area (the Australian Fishing Zone) to the same kinds of activity in another area (the continental shelf).
16 Section 101 appears in Pt 6, Div 5 (ss 99-105) of the FMA. Division 5 is headed “Foreign boats – additional enforcement provisions” and creates a range of offences. Several of the provisions, notably ss 99, 100, 100A and 100B, are directed expressly to the activity of fishing. By contrast, s 101 is directed not to that activity but to the existence of a state of affairs, namely having possession or charge of a particular kind of boat: a foreign boat equipped for fishing. Section 101 is not a provision of the FMA “made in relation to fishing in the AFZ”: It is a provision in relation to having possession or charge of a particular kind of boat. More particularly, and contrary to the respondent’s submissions, it is not a provision in relation to “operations at sea directly in support of, or in preparation for” any of the activities described in the definition of “fishing” in s 4 of the FMA. Section 101 is thus not a provision that is the subject of the extension which is worked by s 12(2).
The word “relate” also takes its meaning from the context in which it appears. Whatever may be the meaning of the words, “affected by the act”, in ss 29(2) and 29(3), the requirement in s 6(4) of the 2011 Determination is that there be a clear description, “of the area to which the act mentioned in the notice relates”. There is no reference to “effect”. The Native Title Party’s use of various descriptions of the relevant land and waters (mentioned above) has led it into error. Such error is the result of departing from the language of s 29(3) and the Determination.
In the present s 29 notice the area described is the, “area of land covered by the proposed grant”, as “depicted on the map”. Fairly clearly, the matters described under the heading “Nature of the act” are to be conducted on the land so identified. That is the relationship which s 6(4) of the 2011 Determination anticipates.
The Native Title Party seeks to distinguish two earlier decisions, which decisions are inconsistent with its contentions. Both decisions concerned the 1998 Determination. In Dixon at [9], Member Franklyn rejected a submission that a s 29 notice must identify land which will be affected by the relevant act, even if it be outside of the boundaries of the area to be included in the grant. In Williamsv Minister for Lands (NSW) (2003) 128 FCR 517, Wilcox J appears to have adopted the same approach. That case involved a s 29 notice concerning the proposed grant of a mining lease, which grant would be a future act, to which Subdiv P applied. As I have said, at that time the 1998 Determination required that the s 29(3) notice include, “a clear description of the area that may be affected by the act”. Wilcox J seems not to have been concerned by use of the word “may” which word, as I have said, Member Franklyn treated as meaning “will”.
In Williams, the evidence indicated that substantial infrastructure would be installed on the proposed tenement, and that such infrastructure would require access to both water and electricity. However there was no disclosure concerning the location of any off-site works which would be necessary in order to convey water and electricity to the site. The relevant minister had applied for a permit in connection with the collection and destruction of Aboriginal relics in an area which included both the proposed tenement, and the area through which the proposed water and electricity supplies were to pass, apparently in anticipation of the grantee’s utilization of that area for such purpose.
At [23]-[26] Wilcox J said:
23 Counsel for the respondents each argued the subject notice complied with s 29 because it accurately identified the whole of the land affected by the proposed future act; that is, the land over which the mining lease was proposed to be granted. They said it was immaterial that it would be necessary, if the mining lease was to obtain any benefit from the lease, for it to arrange for the installation of infrastructure outside MLA 45. Counsel accepted that, if the development of that infrastructure involved the doing of an “act” (as defined in s 226(2)) that affected native title (within the meaning of s 227), it might be necessary (in order to avoid invalidity) for somebody to give a further s 29 notice; but they said this circumstance does not affect the validity of the notice that has already been given.
24 The respondents’ contentions are correct. In considering the terms of any notice given, or proposed to be given, pursuant to s 29, it is important to bear in mind the definitions contained in ss 226, 227 and 233 of the statute. The requirement of s 29(1) is for the Government party to “give notice of the act”; that is, the act as defined in ss 226, 227 and 233. In the present case, the relevant act is the grant of the proposed mining lease over MLA 45. The notice must disclose the intention to perform that act. It is not required to disclose more. The subject notice is valid.
25 Identification of the relevant “act” is also critical to the application of s 6(5)(a) of the (1998 Determination). The “area that may be affected” by the grant of a mining lease is the area covered by the lease. This is so notwithstanding that development and operation of a mine, pursuant to the lease, may adversely affect the occupation or enjoyment of other land. The latter affectation results from actions by the lessee, not the Government party.
26 It is important to emphasise that I am not asserting the statute can have no application to the electricity transmission line or water pipeline. Whether or not it does so depends on matters not investigated at the hearing of these notices of motion. Probably the most important of these matters is the tenure of the land over which the electricity transmission line and water pipeline will be constructed. If it should happen this is all freehold land, obviously the statute will have no application. To the extent that it is not all freehold land, the statute may have application. If so, nothing decided in connection with these motions affects that result.
The Native Title Party seeks to distinguish those decisions. It submits that in Dixon, it was not put to the Tribunal that, “the boundaries of ‘the act’ were not congruent with the native title area”. In this regard, the Native Title Party refers to the Member’s reasons at [9]. In my view, the Member fully understood that such a submission was made. He rejected it. The Native Title Party seeks to distinguish Williams on the basis that the adverse impacts on areas outside of such boundaries, “did not arise from ‘the act’ (i.e. the grant), but rather related to the likelihood that other acts would be done as part of a broader project”. To my mind, the distinction is without merit. In the present case, s 83 provides access rights over land, other than that which is to be the subject of the proposed grants. In Williams, access was provided for the purpose of providing electricity and water to the relevant mining site. The only real difference is that in the present case, the “supplementary” benefit, or disadvantage (depending upon one’s point of view), is created by statute whereas, in Williams, it was apparently to be the creature of administrative action. That difference is, in my view, irrelevant for present purposes.
Finally, I note that the definition of the term “clear description” in s 4 of the 2011 Determination requires that the s 29 notice provide enough information to enable a person to work out the “general location of the area” and the “approximate boundaries of the areas”. In my view, it would be virtually impossible to satisfy these requirements if the area to be notified included all of the land which might be affected by s 83.
The above reasons apply primarily to the requirement in s 6(4)(a) of the 2011 Determination, that the s 29(3) notice include, “a clear description of the area to which the act mentioned in the notice relates”. To the extent that the Native Title Party addressed compliance with s 29(1) and s 29(2), it relied upon the same argument as it advanced in connection with s 29(3). The requirements of the 2011 Determination do not apply to s 29(1) or s 29(2). I see no basis for construing s 29(1) or s 29(2) as requiring the description of areas other than those over which the proposed grants are to be made.
It follows that the notice complied with s 29. The Native Title Party’s application must be dismissed. I shall, in due course, determine the objection application.
After I had substantially completed these reasons, the parties drew my attention to the decision of Griffiths J in Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1506. That case involved a non-claimant determination application over an area of approximately 0.178km². However the s 29 notice required by s 6(5) of the 2011 Determination showed the area as being 178m². The notice also contained a map and a written description of the general geographical location of the area. During the notification period and thereafter, no person filed a relevant native title claim. Nor did any person seek to be joined in the proceedings. The parties asserted that the error ought not be treated as fatal to the application. His Honour accepted that submission, noting that, “[s]ignificantly, the misdescription did not relate to any particular mandatory item specified in s 66(3)(d),” of the Native Title Act. It seems that Griffiths J was referring to the fact that neither s 66(3)(d) of the Native Title Act nor s 6(5) of the 2011 Determination required that the hectarage be included in the notice. His Honour’s decision is not directly relevant for present purposes, save to the extent that it establishes that not every error in a s 29 notice will render the notice insufficient, leading to invalidity of the proposed grant.
The Hon John Dowsett AM, QC
President
30 October 2020