Ward, Ben & Ors v The State of Western Australia & Anor Smith, Clarrie v The State of Western Australia & Ors

[1995] FCA 1165

CATCHWORDS

NATIVE TITLE ACT 1993 (CTH) - National Native Title Tribunal - future acts - expedited procedure pursuant to s.237 of Native Title Act  -  proposed grant of Exploration Licences under Mining Act 1978 (W.A.)  -  prospect of interference with a site of particular significance to persons who are holders of native title  -  application for stay of effect of determinations of Tribunal pending hearing of appeal  -  relevant considerations.

Mining Act 1978 (W.A.)
Native Title Act 1993 (Cth) ss 27, 31, 39, 169, 170, 237; sub-ss 32(4), 170(2)

BEN WARD AND OTHERS V. THE STATE OF WESTERN AUSTRALIA AND AUSTRALIAN UNITED GOLD NL
WAG6006 OF 1995

CLARRIE SMITH V. THE STATE OF WESTERN AUSTRALIA AND C.R.A. EXPLORATION PTY. LTD. AND B.H.P. EXPLORATION PTY. LTD.
WAG6007 OF 1995

LEE J.
PERTH
14 DECEMBER 1995

IN THE FEDERAL COURT  )
OF AUSTRALIA         )
WESTERN AUSTRALIA     )
DISTRICT REGISTRY     )
GENERAL DIVISION     )    NO. WAG6006 OF 1995

B E T W E E N:            BEN WARD AND OTHERS

Applicants

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

AUSTRALIAN UNITED GOLD NL

Second Respondent

IN THE FEDERAL COURT  )
OF AUSTRALIA         )
WESTERN AUSTRALIA     )
DISTRICT REGISTRY     )
GENERAL DIVISION     )    NO. WAG6007 OF 1995

B E T W E E N:            CLARRIE SMITH

Applicant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

C.R.A. EXPLORATION PTY. LTD.

Second Respondent

and

B.H.P. EXPLORATION PTY. LTD.

Third Respondent

and

ASIAN MINING NL and

SORNA PTY. LTD.

Fourth Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER:    LEE J.

DATE OF ORDER:        14 DECEMBER 1995

WHERE MADE:           PERTH

THE COURT ORDERS THAT:

1. If the State pursuant to the determinations of the Tribunal the subject of these appeals, decides to issue an Exploration Licence or Licences pending the hearing of the appeals and the State is not satisfied at the time of issue of the Licences that the proposed licensees have made agreements with the applicants which include terms that provide for the protection of sites of particular significance found by the Tribunal to exist within the areas over which the Licences are to be granted, such Licences, upon issue, are to be endorsed with appropriate conditions requiring the licensees in exercising rights granted by the Licences to take such steps as are necesssary to protect those sites.

1. Liberty to apply.

1. The question of costs to be reserved.

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     )
GENERAL DIVISION     )    NO. WAG6006 OF 1995

B E T W E E N:            BEN WARD AND OTHERS

Applicants

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

AUSTRALIAN UNITED GOLD NL

Second Respondent

IN THE FEDERAL COURT  )
OF AUSTRALIA         )
WESTERN AUSTRALIA     )
DISTRICT REGISTRY     )
GENERAL DIVISION     )    NO. WAG6007 OF 1995

B E T W E E N:            CLARRIE SMITH

Applicant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

C.R.A. EXPLORATION PTY. LTD.

Second Respondent

and

B.H.P. EXPLORATION PTY. LTD.

Third Respondent

and

ASIAN MINING NL and

SORNA PTY. LTD.

Fourth Respondents

CORAM:    LEE J.
DATE :    14 DECEMBER 1995
PLACE:    PERTH

REASONS FOR JUDGMENT

These applications concern two "appeals" on questions of law pursuant to s.169 of the Native Title Act 1993 (Cth) ("the Act") from determinations of the National Native Title Tribunal ("the Tribunal") made on 11 December 1995. Each appeal raises similar issues. The applications seek orders under sub-s.170(2) of the Act staying the effect of the determinations of the Tribunal pending the hearing of the appeals.

The Tribunal as "the arbitral body" defined in s.27 of the Act has determined under sub-s.32(4) of the Act that "future acts" proposed to be done by the first respondent ("the State"), namely, the grant of Exploration Licences under the Mining Act 1978 (W.A.), are acts which attract "the expedited procedure" pursuant to s.237 of the Act.

Section 237 of the Act reads as follows:

"237A future act is an 'act attracting the expedited procedure' if:

(a)the act does not directly interfere with the community life 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 does not 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 does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned."

If the Tribunal determines that a "future act is an act attracting the expedited procedure" the Act, in sub-s.32(4), permits the act to be done. The "expedited procedure" appears to be the statutory grant of permission and the removal of the requirement in s.31 of the Act that the State negotiate with "native title parties" in respect of the doing of the proposed act.

In deciding whether the orders sought in the application should be made I have had regard to the following matters.
First, it is appropriate to consider the strength, as it were, of the appeals, namely, do they raise an arguable case. The questions at law on which the appeals are made relate to the proper construction of s.237 of the Act. In particular, on the question whether the section applies to a proposed act unless interference with a site of significance is shown to be likely and on the question whether the section places an onus to produce evidence of such likelihood on the party who objects to the claim that "the expedited procedure" is attracted.

I am satisfied by the submissions I have heard that the questions raise issues of substance and not merely colourable points of construction and, therefore, that there is an arguable case that the Tribunal erred in its application of the Act properly construed. Counsel for all parties agree that determination of the scope of operation of s.237 of the Act is a matter of substantial importance. To this point there has been no judicial decision on the construction of s.237.

Once satisfied that the appeals raise an arguable case, it is necessary to consider whether it has been shown that the grant of a stay is necessary to prevent material circumstances being changed in such a way that success in the appeals may be negated.
Mr Humphry, counsel for the State, said that it was likely that Exploration Licences would be issued if no stay was imposed upon the effect of the Tribunal's determination. It seems to be agreed on both sides that the issue of a licence would have no impact on the existence of native title. However, under the Act (ss.39, 237) the impact of a future act upon native title rights and interests is only one of a number of considerations relevant to permission being granted to do such acts under the Act. The Act is also concerned with the protection of sites that are of significance to indigenous people. The question arises in the cases on appeal, should some step be taken to guard against the prospect of an unalterable situation being reached in respect of a site of significance by virtue of reliance by the licensee upon rights granted by an Exploration Licence. The State was not prepared to offer an undertaking that the Exploration Licence, if issued, would be subject to a condition that the licensee take all steps necessary to protect sites of significance.

The Tribunal found that sites of significance exist within the areas that would be included within the Exploration Licences proposed to be granted and further, also found, that exercise of the rights granted by an Exploration Licence may lead to interference with those sites.  However, the Tribunal was not satisfied that such interference with the sites was likely.
         It is further said in opposition to the request for a stay that there is no real prospect of such a risk arising in the period elapsing up to the hearing and determination of the appeals.  It is submitted that seasonal conditions in respect of the area of one of the proposed Exploration Licences makes it unlikely that any step could be taken by the licensee.  It is also said that the Court should act upon the presumption that a licensee would abide by any law which requires sites of significance to be protected.  However, the Court was informed by counsel for the State that the exact locations of the sites of significance have not been disclosed and, therefore, the risk of inadvertent and of unintended interference with the sites by a licensee remains.

I have had regard to all of these matters and I am satisfied that if a stay were not imposed there is a risk that the interest of the applicants in successful appeals could be overtaken by events and that if an order may be made to protect the interest of the applicants without unduly interfering with the interest of the respondents that order should be made. Having regard to the powers provided to the Court in s.170, I consider it appropriate to endeavour to mould an order best suited to balance those interests whilst this appeal is determined. Part of the purpose of making such an order would be to remove the prospect of further litigation or further applications to this Court, or any other court, as a result of the exercise of rights acquired upon the grant of Exploration Licences and to take into account that it may be some months before the appeals are heard and determined.

The appropriate order would be in the following terms:

That if the State pursuant to the determinations of the Tribunal the subject of these appeals, decides to issue an Exploration Licence or Licences pending the hearing of the appeals and the State is not satisfied at the time of issue of the licences that the proposed licensees have made agreements with the applicants which include terms that provide for the protection of sites of particular significance found by the Tribunal to exist within the areas over which the Licences are to be granted, such Licences, upon issue, are to be endorsed with appropriate conditions requiring the licensees in exercising rights granted by the Licences to take such steps as are necessary to protect those sites.  There will be liberty to apply in respect of that order.

I will hear counsel in the terms of the proposed order and on the directions to be made for the hearing of the appeals.

I certify that the preceding seven (7) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:
          Date:

APPEARANCES

WAG6006 OF 1995

Counsel for the Applicants   :  A.M. Sheehan
Solicitors for the Applicants:  Aboriginal Legal Service of
  Western Australia (Inc.)

Counsel for the First Respondent   :  C.R. Humphrey
Solicitors for the First Respondent:  Crown Solicitor for the State of
  Western Australia

Counsel for the Second Respondent   :  C.P. Stevenson
Solicitors for the Second Respondent:  Mallesons Stephen Jaques

WAG6007 OF 1995

Counsel for the Applicants   :  A.M. Sheehan
Solicitors for the Applicants:  Aboriginal Legal Service of
  Western Australia (Inc.)

Counsel for the First Respondent   :  C.R. Humphrey
Solicitors for the First Respondent:  Crown Solicitor for the State of
  Western Australia

Counsel for the Second and Third Respondents   :  C.P. Stevenson
Solicitors for the Second and Third Respondents:  Mallesons Stephen Jaques

Date of Hearing  :  14 December 1995
Date of Judgment :  14 December 1995