Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19
ABORIGINES – native title – right to negotiate – expedited procedure – objection – whether act “likely to interfere directly with the carrying on of community or social activities” – whether “likely” requires “real chance” test or balance of probabilities test – whether assessment of direct interference with community or social activities permits regard to external and third party impacts on community or social activities – evaluative character of judgment – precise causal analysis inappropriate.
DERRICK SMITH ON BEHALF OF THE GNAALA KARLA BOOJA PEOPLE v THE STATE OF WESTERN AUSTRALIA, SOUTH COAST METALS PTY LTD W6006/2000
FRENCH J 19 JANUARY 2001 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W6006 OF 2000
BETWEEN:
DERRICK SMITH ON BEHALF OF THE GNAALA KARLA BOOJA PEOPLE APPLICANT
AND:
THE STATE OF WESTERN AUSTRALIA FIRST RESPONDENT
SOUTH COAST METALS PTY LTD SECOND RESPONDENT
JUDGE:
FRENCH J
DATE OF ORDER:
19 JANUARY 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application is dismissed.
2.No order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W6006 OF 2000
BETWEEN:
DERRICK SMITH ON BEHALF OF THE GNAALA KARLA BOOJA PEOPLE APPLICANT
AND:
THE STATE OF WESTERN AUSTRALIA FIRST RESPONDENT
SOUTH COAST METALS PTY LTD SECOND RESPONDENT
JUDGE:
FRENCH J
DATE:
19 JANUARY 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
History of Proceedings
On 9 July 1999, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) that it proposed to grant exploration licence 70/2106 to South Coast Metals Pty Ltd. The proposed licence covers 31.48 square kilometres of land located seventeen kilometres south west of Collie. The notice included a statement, under s 32 of the Act, that the State considered the Act to be one which attracted the expedited procedure. The effect of such a statement is that, absent an objection filed by a native title holder or registered native title claimant, the State could proceed to make the grant without further negotiation. In the event, an objection was lodged by Derrick Smith on behalf of the Gnaala Karla Booja People on 10 September 1999. The objection was heard by a Deputy President of the National Native Title Tribunal exercising the Tribunal’s arbitral functions under s 32(4) of the Act. After hearing evidence from a Mr Northover for the applicants and Mr Mulholland for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Smith v Western Australia [2001] FCA 19
Case
[2001] FCA 19
Decision Date
CaseChat Overview and Summary
In the case of Smith v Western Australia, the State of Western Australia appealed against a decision of the Federal Court of Australia, arguing that the Tribunal had incorrectly interpreted the term "likely" in the context of subsection 237(a) of the Native Title Act. The appeal centred around whether the Tribunal's interpretation of "likely" as a real or not remote chance or possibility, irrespective of whether it was less or more than 50%, was legally sound. The primary focus was on whether the Tribunal's interpretation aligned with the legislative intent and the changes introduced by the 1998 amendments to the Native Title Act.
The court had to determine whether the Tribunal's interpretation of the word "likely" in subsection 237(a) was consistent with the legislative intent, especially in light of the 1998 amendments. The key issue was whether the Tribunal should undertake a predictive assessment to determine whether an act was likely to interfere with native title holders' rights, or whether it should only consider the nature of the act itself. The court needed to clarify the extent to which the Tribunal should engage in foreseeing the consequences of granting exploration licenses under the Native Title Act.
The court found that the Tribunal's interpretation of "likely" was legally incorrect. The court held that the term "likely" in subsection 237(a) should not be interpreted as a real or not remote chance or possibility but rather as a matter of legislative intent and the context provided by the 1998 amendments. The court emphasised that the Tribunal must undertake a predictive assessment to determine whether an act is likely to interfere with native title rights. The court further noted that the Tribunal's opinion on the non-physical aspects of community activities was not necessary to the decision since the applicant did not rely on such aspects. Therefore, the appeal was dismissed, and no order was made regarding costs.
Orders
Orders of the court
1. The application is dismissed.
2. No order as to costs.
Note:
Background
Background to the litigation
The State of Western Australia filed a notice of contention asserting that: “The Tribunal erred in law in applying an interpretation of the word “likely” in Native Title Act subsection 237(a) as referring to a real or not remote chance or possibility, regardless of whether it is less or more than 50% (Reasons for Determination page 45).”Section 237 – Some Historical Background The provisions of s 237 as it stood prior to the 1998 amendments to the Native Title Act were, not surprisingly, the subject of some judicial exegesis. The importance of the application of the right to negotiate to mining exploration activities and to native title applicants ensured that there would be, before the Tribunal and this Court, debate about the scope of the expedited procedure exemption. There were differing views expressed by judges at first instance about the construction of the original s 237. Crucial questions to be addressed under pars (a) and (b) of the old section were whether the proposed act, in the words of the section, “does not directly interfere” with the community life of the native title holders and with areas or sites of particular significance. A similar question raised by par 237(c) was whether the act involves major disturbance to any land or waters concerned or creates rights whose exercise will involve such disturbance. On one view these questions required consideration of whether the consequences negating the application of the expedited procedure were “likely” and involved “…a predictive assessment of whether the grant of the exploration licences and the exercise of rights conferred by those licences would or would not be likely to result in interference of any of the three relevant types” – Ward v State of Western Australia (1996) 69 FCR 208 at 222 (Carr J). The other view was that it was not the Tribunal’s task to attempt to foresee what activities would in fact occur on the subject tenement if an exploration licence were to be granted. The appropriate course involved assessment of the nature of the future act. So where the relevant future act created a right, the Tribunal’s task was to assess the potential consequences of its exercise, not to determine the degree of likelihood that they would in fact occur – State of Western Australia v Ward (1996) 70 FCR 265 at 279 (Lee J). The latter view was preferred by the Full Court in Dann v Western Australia (1997) 74 FCR 391 at 393 (Wilcox J), 399-400 (Tamberlin J) and 411 (RD Nicholson J). In the Native Title Amendment Bill 1997 as first introduced into the Parliament, s 237 was to be amended to read:“237 Act attracting the expedited procedureA future act is an act attracting the expedited procedure if: (a)the act does not directly interfere with is not likely to interfere directly with the physical aspects of the community life of the persons who are the holders (disregarding any trusts created under Division 6 of Part 2) of native title in relation to the land or waters concerned.(b)the act does not 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 trusts created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and (c)the act does not is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise will is likely to involve major disturbance to any land or waters concerned.”The Explanatory Memorandum to the Native Title Amendment Bill 1997 explained these amendments, in par 20.38 thus: “20.38 Existing section 237 sets out the circumstances when an act attracts the expedited procedure. If native title parties object to the expedited procedure for a particular future act, the arbitral body must determine whether the act meets the requirements set out in section 237. Some changes are being made to section 237 as set out below (these were proposed in the 1996 amendments)..The first change addresses a Federal Court decision (Ward v Western Australia (1996) 136 ALR 557) and provides that an act will only attract the expedited procedure in section 32 if it is not likely to (rather than ‘does not’) interfere directly with the physical aspects of community life. If there is evidence that the act will interfere with native title claimants’ physical ability to enjoy their native title rights, for example placing an impediment to hunting, fishing or gathering or the ability to conduct religious ceremonies, the expedited procedure will not apply. [Schedule 1, item 42].The other changes confirm that, because it is not possible for the arbitral body to know the actual effect of a future act in deciding whether it attracts the expedited procedure, the arbitral body must undertake a predictive assessment, and look at what is likely to occur.[Schedule 1, items 43 and 44]
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH J
Under the second ground of appeal the complaint was raised that the Tribunal had expressed the opinion that “section 237 is concerned with and limited to interference with the physical aspects of the carrying on of community and social activities of the native title holders”. It was then said that this opinion was unnecessary to its decision because no reliance was placed by the applicant upon any non-physical aspects of their activities. In my opinion, this point can wait for another day. Given the applicant’s position that he was not relying upon any non-physical aspect of activities of the native title applicant group, the opinion of the Tribunal in this respect had no impact upon the outcome of the case. It is therefore not necessary to further address the second ground of appeal.Conclusion For the preceding reasons the application will be dismissed. The ground advanced in the notice of contention also fails. I will hear from the parties as to costs.